Opinion Information Sheet

			

           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

TAMMY BENNETT, individually and as          )       No. 61811-3-I
the personal representative of the          )
Estate of Shawn Manning, a                  )       DIVISION ONE
developmentally-disabled child,             )
                                            )
                      Appellant,            )       PUBLISHED OPINION
          v.                                )
                                            )
SEATTLE MENTAL HEALTH, a health             )
care provider; DR. MEREDITH A. FINE, )
a health care provider; and                 )
ALBERTSONS, INC., a corporation             )
doing business in the State of              )
Washington,                                 )
                                            )
                      Respondents.          )       FILED:  February 6, 2012

       Schindler, J.  --  Tammy Bennett sued Seattle Mental Health, Dr. Meredith A. 

Fine, and Albertsons, Inc. for the wrongful death of her 26-year-old developmentally 

disabled son Shawn Manning.  Bennett challenges dismissal of her lawsuit for lack of 

standing under RCW 4.24.010.  Bennett argues that parents of a developmentally 

disabled and legally incapacitated adult child should be treated in the same way as the 

parents of a minor child under the wrongful death statute, RCW 4.24.010.  In the 

alternative, Bennett asserts that RCW 4.24.010 is unconstitutional as applied to the 

parents of developmentally disabled and legally incapacitated adult children. Because  

No. 61811-3-I/2

Bennett did not have standing under RCW 4.24.010 to bring an action for the wrongful 

death of her 26-year-old developmentally disabled adult child, and the statute is not 

unconstitutional, we affirm. 

                                            FACTS

       Shawn Manning was born on July 27, 1978.  When he was approximately three-

years-old, Shawn was diagnosed with severe autistic disorder and mental retardation.  

Shawn lived with his mother Tammy Bennett and his stepfather Curt Bennett.  Because 

Shawn required more care than the Bennetts could provide, when Shawn was 14-years-

old, the State assumed responsibility for his care and he moved into a group home

supervised by Service Alternatives of Washington (SAW).  

       When Shawn turned 18, he moved into an adult family home operated by SAW.  

Shawn was able to perform some daily functions and could bathe, dress, and eat by 

himself.  However, difficulties with "cognition, language and behavior" limited Shawn's 

ability to live independently.  The State Department of Developmental Disabilities 

contracts with SAW to provide services to developmentally disabled adults.  The 

federal and State disability benefits that Shawn received were paid directly to SAW as 

the representative payee.  

       In October 1996, Tammy and Curt Bennett filed a petition for the legal 
guardianship of Shawn.1  The petition states that Shawn is entitled to receive federal 

and State disability benefits that are paid directly to SAW for his care.  In the petition, 

the Bennetts assert that Shawn has the mental age of a five to seven-year-old and will

need assistance "indefinitely, due to ongoing disabilities."  The report filed by the 

       1 The Bennetts did not seek a guardianship of Shawn's estate.  

                                               2 

No. 61811-3-I/3

guardian ad litem appointed to represent Shawn states that the Bennetts filed the petition 

for guardianship in order to "oversee Shawn's medical care now that he has turned 

eighteen."  

       As Shawn's parents, they wish to monitor Shawn's medical care and to be 
       able to make decisions for him, as he is not capable of making informed 
       decisions on his own.

The superior court entered an order appointing Tammy and Curt Bennett as the legal 

guardians for Shawn.

       In 2000, Seattle Mental Health and Dr. Meredith Fine assumed responsibility as 

the primary medical treatment providers for Shawn.  Dr. Fine prescribed medications 

for Shawn including an anti-seizure medication, Tegretol.  SAW staff administered

Shawn's medications and kept a log documenting dosage and frequency.  

       On October 21, 2004, SAW staff found Shawn lying unconscious on the floor of 
his bedroom.  The staff immediately administered CPR2 and contacted the emergency 

medical treatment (EMT) providers.  Within minutes of arrival, the EMT providers 

pronounced Shawn dead.  Shawn was 26-years-old at the time of his death.

       On December 19, 2007, Bennett filed a wrongful death action against Seattle 

Mental Health, Dr. Meredith Fine, and Albertsons.  Bennett alleged that the health care 

providers breached the standard of care by negligently prescribing, administering, and 

supervising Shawn's medications.  The complaint alleged that in August 2004, an 

Albertsons pharmacy refilled Shawn's prescription for Tegretol at a higher than 

required dosage, and that lowering the dosage approximately two months later resulted 

in his death.  

       2 (Cardiopulmonary resuscitation.)

                                               3 

No. 61811-3-I/4

       Seattle Mental Health and Dr. Fine, and Albertsons filed motions for summary 

judgment dismissal of the lawsuit.  The defendants argued (1) Bennett did not comply 

with the filing requirements of RCW 7.70.100, and (2) Bennett did not have standing to 

bring a claim for damages under the child wrongful death statute, RCW 4.24.010. The 

court granted summary judgment and dismissed Bennett's lawsuit.  

       On appeal, we followed the decision in Waples v. Yi, 146 Wn. App. 54, 189 P.3d 

813 (2008), and affirmed dismissal of the lawsuit for failure to comply with the filing 

requirements of RCW 7.70.100(1).  Bennett v. Seattle Mental Health, 150 Wn. App. 

455, 208 P.3d 578 (2009).  

       In Waples v. Yi, 169 Wn.2d 152, 234 P.3d 187 (2010), the Washington Supreme 

Court held that the filing requirements in RCW 7.70.100(1) were unconstitutional.  The

court then remanded in light of Waples.  Bennett v. Seattle Mental Health, 169 Wn.2d 

1029, 241 P.3d 1220 (2010). We scheduled oral argument to allow the parties to 

address whether the trial court erred in concluding Bennett did not have standing to 

bring an action under RCW 4.24.010 for the wrongful death of her legally incapacitated 

and developmentally disabled adult child. 

                                          ANALYSIS

       Bennett argues that parents of developmentally disabled adult children, 

"especially those recognized as incapacitated by the courts," should be treated the 

same as the parents of a minor child for purposes of the child wrongful death statute,

RCW 4.24.010.  

       The interpretation and meaning of a statute is a question of law subject to de 

                                               4 

No. 61811-3-I/5

novo review.  State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001).  The goal of 

statutory interpretation is to discern and carry out legislative intent.  Seven Gables 

Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 6, 721 P.2d 1 (1986).  To determine 

legislative intent, we first look to the language of the statute.  We must give meaning to 

every word in a statute. In re Recall of Pearsall-Stipek, 141 Wn.2d 756, 767, 10 P.3d 

1034 (2000). Absent ambiguity, a statute's meaning is derived from the language of 

the statute and we must give effect to that plain meaning as an expression of legislative 

intent.  Dep't of Ecology v. Campbell & Gwinn, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002).  If 

the meaning of a statute is plain on its face, the inquiry ends.  State v. Armendariz, 160 

Wn.2d 106, 110, 156 P.3d 201 (2007).  A statute is ambiguous if susceptible to two or 

more reasonable interpretations.  Armendariz, 160 Wn.2d at 110.  However, a statute is 

not ambiguous merely because of different conceivable interpretations.  Armendariz, 

160 Wn.2d at 110.

       Because a cause of action for wrongful death was not recognized at common 

law, a wrongful death action is strictly statutory.  Atchison v. Great W. Malting Co., 161 

Wn.2d 372, 381, 166 P.3d 662 (2007).  

              The "courts of this state have long and repeatedly held, causes of 
       action for wrongful death are strictly a matter of legislative grace and are 
       not recognized in the common law." Tait [v. Wahl], 97 Wn. App. [765,]
       771, [987 P.2d 127 (1999)]. The legislature has created a comprehensive 
       set of statutes governing who may recover for wrongful death and 
       survival, and there is no room for this court to act in that area.  Windust v. 
       Dep't. of Labor & Indus., 52 Wn.2d 33, 36, 323 P.2d 241 (1958).  "It is 
       neither the function nor the prerogative of courts to modify legislative 
       enactments." Anderson v. City of Seattle, 78 Wn.2d 201, 202, 471 P.2d 
       87 (1970).

Philippides v. Bernard, 151 Wn.2d 376, 390, 88 P.3d 939 (2004).  

                                               5 

No. 61811-3-I/6

       RCW 4.24.010 governs actions by parents for damages for the wrongful death of 

a child.  The child wrongful death statute only applies to the beneficiaries " 'clearly 

contemplated by the statute.' "  Masunaga v. Gapasin, 57 Wn. App. 624, 631, 790 P.2d 

171 (1990) (nondependent parents of an adult child are not contemplated by the 

statute) (quoting Roe v. Ludtke Trucking, Inc., 46 Wn. App. 816, 819, 732 P.2d 1021 

(1987) (cohabitant of decedent not "wife" within meaning of RCW 4.20.020)).  RCW 

4.24.010 allows parents to sue for damages for the wrongful death of a minor child and 

the death of an adult child if the parents are dependent on the adult child for support.  

Under RCW 4.24.010, a parent of a minor child may bring a cause of action for 

wrongful death if the parent has provided emotional, psychological, or financial support 

for the child.  Philippides, 151 Wn.2d at 384.  But the parent of an adult child can only 

bring a wrongful death action under RCW 4.24.010 if the parent is dependent on the 

adult child for financial support.  Philippides, 151 Wn.2d at 386.  RCW 4.24.010 

provides, in pertinent part:

       A mother or father, or both, who has regularly contributed to the support 
       of his or her minor child, and the mother or father, or both, of a child on 
       whom either, or both, are dependent for support may maintain or join as a 
       party an action as plaintiff for the injury or death of the child.
              . . . . 
              In such an action, in addition to damages for medical, hospital, 
       medication expenses, and loss of services and support, damages may be 
       recovered for the loss of love and companionship of the child and for 
       injury to or destruction of the parent-child relationship in such amount as, 
       under all the circumstances of the case, may be just.[3]

       The "dependent for support" language was added in 1927 and has not changed 

since then.  See Laws of 1927, ch. 191, § 1.  It is well established that "dependent for 

       3 (Emphasis added.)

                                               6 

No. 61811-3-I/7

support" under RCW 4.24.010 means financial dependence.  Masunaga, 57 Wn. App. 

at 628.  A parent need not be wholly dependent on an adult child, but dependence 

must be substantial. Masunaga, 57 Wn. App. at 628.

       In four consolidated cases, the supreme court in Philippides addressed the 

question of whether the parent of an adult child could recover damages under RCW 

4.24.010 if the parent was not financially dependent on the adult child.  Philippides, 151 

Wn.2d at 383.  The plaintiffs argued that the legislature's decision to add an intent

section explicitly stating that the "legislature intends to provide a civil cause of action 

for wrongful injury or death of a minor child to a mother or father" if the parents were 

significantly involved in the child's life, "including but not limited to, emotional, 

psychological, or financial support," also applied to wrongful death actions brought by 
parents of adult children.4  Philippedes, 151 Wn.2d at 3845 (quoting Laws of 1998, ch. 

237, § 1).  Because the plain language of the intent section is "limited to minor 

children," the court rejected the plaintiffs' argument and held that "RCW 4.24.010 

requires that parents be financially dependent on an adult child in order to recover for 
that child's injury or death."  Philippides, 151 Wn.2d at 388.6  

       4  The legislature amended RCW 4.24.010 in 1998 and added an intent section.  The intent 
section states:  
       It is the intent of this act to address the constitutional issue of equal protection addressed 
       by the Washington state supreme court in Guard v. Jackson, 132 Wn.2d 660 (1997).
       The legislature intends to provide a civil cause of action for wrongful injury or death of a 
       minor child to a mother or father, or both, if the mother or father has had significant 
       involvement in the child's life, including but not limited to, emotional, psychological, or 
       financial support.
Laws of 1998, ch. 237, § 1.
       5 (Internal quotation marks omitted.)
       6 Contrary to Bennett's assertion that none of the descendents in Philippides were 
developmentally disabled and legally incapacitated adult children, one of the adult children had cerebral 
palsy and lived with his parents and another adult child was diagnosed with schizophrenia.  Philippides, 
151 Wn.2d at 382.
                                               7 

No. 61811-3-I/8

       Bennett does not dispute that Shawn was 26-years-old when he died and she 

was not dependent on him for financial support.  Bennett contends that Shawn should 

be considered a minor child for purposes of the statute and argues that as a legally 

incapacitated adult, Shawn had none of the rights of an adult and he, therefore, could 

not provide financial support.  

       RCW 4.24.010 does not define "minor child." However, courts have held that 

the age of majority as defined by RCW 26.28.010 applies to RCW 4.24.010.  Burt v. 

Ross, 43 Wn. App. 129, 131, 715 P.2d 538 (1986). RCW 26.28.010 provides, in 

pertinent part, that "[e]xcept as otherwise specifically provided by law, all persons shall 

be deemed and taken to be of full age for all purposes at the age of eighteen years."  

       Bennett points to no authority in support of her argument that a developmentally 

disabled and legally incapacitated adult child over the age of 18 is a minor for purposes 

of the child wrongful death statute.  We note that where the legislature intends to 

include mentally incompetent or disabled persons in the same category as minors, it 

has done so explicitly.  RCW 4.16.190(1) (tolling the statute of limitations while a 

person is under the age of 18 years, or incompetent or disabled to such a degree that 

he or she cannot understand the nature of the proceedings); RCW 5.60.030 (regarding 

competency of witnesses).  To interpret RCW 4.24.010 to treat parents of

developmentally disabled and legally incapacitated adult children the same as parents 

of a minor child would greatly expand the statutory beneficiaries entitled to bring a

wrongful death action under RCW 4.24.010.  Such a significant change to the child 

wrongful death statute must come from the legislature. Philippides, 151 Wn.2d at 390.  

                                               8 

No. 61811-3-I/9

We also note that in 2008, the legislature considered and rejected, based on significant 

cost, expanding the potential beneficiaries in RCW 4.24.010 to include parents who 

were not financially dependent on their adult children. See also H.B. Rep. on 

Engrossed Substitute H.B. 1873, 60th Leg. Sess. (Wash. 2008) (noting also that the 

legislature heard public testimony that the amendments were "important for people with 

disabilities").

       In the alternative, Bennett argues that if she does not have standing under RCW 

4.24.010 because she was not financially dependent on Shawn, RCW 4.24.010 is 

unconstitutional as applied to parents of adult children with developmental disabilities.  

Bennett asserts that because there is no rational basis for treating parents of minor 

children and parents of legally incapacitated and developmentally disabled adult 

children differently, RCW 4.24.010 violates the Fourteenth Amendment of the United 
States Constitution and article I, section 12 of the Washington State Constitution.7

       A statute is presumed constitutional and Bennett carries a heavy burden of 

proof.  Cosro, Inc. v. Liquor Control Bd., 107 Wn.2d 754, 760, 733 P.2d 539 (1987).  

"[T]his court will construe a statute as constitutional if at all possible." Philippides, 151 

Wn.2d at 391.  As to whether there are reasonable grounds to distinguish between 

       7 The Fourteenth Amendment, section 1 of the United States Constitution provides: 
       All persons born or naturalized in the United States, and subject to the jurisdiction 
       thereof, are citizens of the United States and of the state wherein they reside. No state 
       shall make or enforce any law which shall abridge the privileges or immunities of citizens 
       of the United States; nor shall any state deprive any person of life, liberty, or property, 
       without due process of law; nor deny to any person within its jurisdiction the equal 
       protection of the laws. 
       Article I, section 12 of the Washington Constitution provides: 
       No law shall be passed granting to any citizen, class of citizens, or corporation other than 
       municipal, privileges or immunities which upon the same terms shall not equally belong 
       to all citizens, or corporations. 
                                               9 

No. 61811-3-I/10

parents who are able to bring a wrongful death action from parents who are not,

Bennett "must overcome a presumption that the classification is reasonable."  

Philippides, 151 Wn.2d at 391-92.  

       Because RCW 4.24.010 does not employ a suspect classification or implicate a 

fundamental right, the standard of review is rational basis or minimal scrutiny.  

Philippides, 151 Wn.2d at 391. Under a rational basis standard, the court must 

determine:

       (1) [W]hether the legislation applies alike to all members of the
       designated class, (2) whether there are reasonable grounds to distinguish
       between those within and those without the class, and (3) whether the
       classification has a rational relationship to the purpose of the legislation.

Philippedes, 151 Wn.2d at 391.  

       In Masunaga, this court held that there were reasonable grounds to distinguish 

between parents who were financially dependent upon an adult child and those who 
were not.  Masunaga, 57 Wn. App. at 633.8  We concluded that financially dependent 

parents are affected differently and more directly by that child's death than are 

nondependent parents.  Masunaga, 57 Wn. App. at 633.  

       The fact that nondependent parents, as well as siblings, friends, and 
       acquaintances, suffer emotionally from a wrongful death does not render 
       the statutory classification unreasonable for purposes of equal protection 
       analysis.

Masunaga, 57 Wn. App. at 633.  

       The Washington Supreme Court in Philippides analyzed the constitutionality of 

the child wrongful death statute and whether the requirement that parents of adult 

       8 Likewise, RCW 4.20.020 differentiates between beneficiaries and limits parents from bringing a 
wrongful death action unless the parent is "dependent upon the deceased person for support."
                                              10 

No. 61811-3-I/11

children must be financially dependent under RCW 4.24.010 violated the equal 

protection clause of the United States Constitution or the privileges and immunities 

clause of Washington State's Constitution.  Philippides, 151 Wn.2d at 383. Under

RCW 4.24.010, parents of adult children must be financially dependent on the adult 

child in order to bring a wrongful death action.  But parents of minor children may bring 

a wrongful death action if that parent has been significantly involved, including 

emotional, psychological, or financial support of the minor child. Philippides, 151 

Wn.2d at 381-82; Masunaga, 57 Wn. App. at 632.  

       Using rational basis scrutiny, the court concluded that RCW 4.24.010 did not 

violate the federal and State constitution because the limitations placed on a parent's

recovery is reasonably related to the purpose of compensating those parents most 

directly and significantly affected by the loss of a child.  Philippides, 151 Wn.2d at 391-

92.  The supreme court concluded there was a rational basis to distinguish between 

dependent and nondependent parents of adult children.  "Obviously a parent who is 

dependent on a child for material well-being and the basic physical necessities of life is 

impacted in a way unlike an independent parent."  Philippedes, 151 Wn.2d at 392.  

Even where the parent is significantly involved in the life of an adult child, the court 

concluded there was a reasonable basis for treating parents of adult children differently

from parents of a minor child because the parents of an adult child are not financially 

responsible after the child turns 18.

       The legislature does not require parents to support their adult children
       financially, or in any other way.  Society does not hold parents
       responsible for the actions of their adult children.  Many of the strictures
       binding children to their parents are released when the child reaches the
       age of majority.  Therefore, there is a reasonable basis for the statute's 

                                              11 

No. 61811-3-I/12

       treating the parents of adult children differently from parents of minor 
       children.

Philippedes, 151 Wn.2d at 393.  

       Bennett claims that because parents of legally incapacitated and 

developmentally disabled adult children remain legally responsible after the age of 

majority, there is no rational basis for treating them differently from the parents of minor 

children.  The only authority Bennett cites in support of her argument is Schultz v. 

Western Farm Tractor Co., 111 Wash. 351, 190 P. 1007 (1920). Schultz does not 

support Bennett's claim that Washington imposes financial obligations on parents with 

developmentally disabled adult children. 

       In Schultz, the court addressed the allocation of funds between a widow and the 

decedent's disabled son.  Schultz, 111 Wash. at 352-54.  The court held that allocating 

funds to the disabled son was appropriate because the decedent would have continued 

to support his son past the age of majority.  Schultz, 111 Wash. at 354. But here,

unlike in Schultz, the State and federal government assumed the obligation to support 

Shawn and other individuals with developmental disabilities after the age of majority.  

RCW 71A.10.015.  While Bennett remained actively involved in her son's life, she was 

not financially responsible for Shawn.  There is no dispute the State and federal 

disability benefits paid for Shawn's care.  

       As to the question of whether the challenged classification has a rational 

relationship to the purpose of the legislation, Bennett must do more than merely 

question the wisdom of the statute.  Masunaga, 57 Wn. App. at 633.  

       [A] legislative classification will be upheld unless it "rests on grounds 
       wholly irrelevant to the achievement of the State's objective.  State 

                                              12 

No. 61811-3-I/13

       legislatures are presumed to have acted within their constitutional power 
       despite the fact that, in practice, their laws result in some inequality.  A 
       statutory discrimination will not be set aside if any state of facts 
       reasonably may be conceived to justify it."

Masunaga, 57 Wn. App. at 633 (quoting McGowan v. Maryland, 366 U.S. 420, 425 -- 26, 

81 S. Ct. 1101, 6 L. Ed. 2d 393 (1961)). Bennett cannot "show conclusively that the 

classification is contrary to the legislation's purposes." Yakima County Deputy Sheriff's 

Ass'n v. Bd. of Comm'rs for Yakima County, 92 Wn.2d 831, 836, 601 P.2d 936 (1979).  

As the supreme court states in Philippides, the limitations imposed on the parents of 

adult children is not contrary to the purpose of the statute.

       The purpose of the child death/injury statute is to compensate parents for
       the loss of a child.  The limitations placed on parents relate to the 
       statute's attempt to compensate those parties most directly and 
       significantly affected.  While the lines drawn in RCW 4.24.010 will 
       obviously preclude recovery for many parents devastated by the loss of 
       an adult child, a statute is not unconstitutional for failing to "attack every 
       aspect of a problem."
Philippides, 151 Wn.2d at 3929 (quoting Masunaga, 57 Wn. App. at 634).

       Under RCW 4.24.010, the parent of an adult child can bring a wrongful death 

action if the parent is financially dependent on the adult child, regardless of whether the 

adult child is legally incapacitated or developmentally disabled.  Because financial 

dependence is a reasonable basis for determining whether a parent of an adult child 

can bring an action for the death of an adult child, we reject Bennett's constitutional

challenge to RCW 4.24.010.

       We affirm dismissal of Bennett's action under RCW 4.24.010 for the wrongful 

death of her 26-year-old developmentally disabled son.  

       9 (Internal quotation marks and citation omitted.)

                                              13 

No. 61811-3-I/14

WE CONCUR:

                                              ______________________________

                 No. 61811-3-I, Tammy Bennett v. Seattle Mental Health

       Ellington, J. (concurring)  --  I concur.  The majority thoroughly discusses and 

correctly construes the wrongful death and survival statutes.  Actions for wrongful death 

of an adult child are not authorized in Washington unless brought by statutory 

beneficiaries who are dependent on the child for their financial support.

       I write separately to urge that the legislature revise the statutes.  A person 

injured by negligence has his or her own cause of action. In the case of death resulting 

from negligence, however, the statutes effectively immunize the negligent treatment of 

vulnerable adults, so long as the negligence results in death.

       I have written on this issue before.  In 2001, we decided Schumacher v. 

Williams, 107 Wn. App. 793, 805 28 P.3d 792 (2001).  Maria Schumacher had Downs 

                                              14 

No. 61811-3-I/15

Syndrome.  She lived in an adult boarding home.  She was scalded to death.  Like most 

vulnerable adults, Schumacher had no statutory beneficiaries because no one was 

dependent upon her for financial support.  Her brother's action for wrongful death was 

dismissed.  I wrote separately urging the legislature to amend the statutes.

       Like Maria Schumacher, Shawn Bennett was developmentally disabled and 

could not care for himself.  Like her, he died as a result of his caregivers' negligence. 

Like her, he has no statutory beneficiaries because no one depended upon him for 

financial support.

       In both cases there is no liability for the negligence, and thus no deterrence of 

future negligence and no incentive to improve care. Instead, the statutes essentially 

encourage fatal negligence in preference to mere injury.  This result is irresponsible 

and unwise.

       Another unfortunate aspect of these statutes was illuminated in Tait v. Wahl, 97 

Wn. App. 765, 775-76, 987 P.2d 127 (1999).  There, a woman who provided a home for 

her sister's children and grandchildren, Mary Douglas,  was run down by a truck and 

killed.  Ms. Douglas had cared for her niece, Amber Tait, and her niece's children from 

their births.  Upon her death, they lost their home and financial security.  But the 

statutes precluded any recovery because their relationship to Ms. Douglas was, by one 

degree, not close enough to qualify them as beneficiaries.

       This result ignores the realities of modern life entirely, and again immunizes 

negligence so long as it results in death.

       But it is the legislature's job, not ours, to delineate the beneficiaries of statutory 

                                              15 

No. 61811-3-I/16

causes of action.  And unwise distinctions do not, by themselves, render a statute 

unconstitutional.

       As before, however, I urge the legislature to revise the statutes.  

                                              16