Lashay v. Dept. of S.R.S.

LASHAY_V_DEPT_OF_SRS.92-118; 160 Vt. 60; 625 A.2d 224


[Opinion Filed 15-Jan-1993]

[Motion for Reargument Denied 24-Feb-1993]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.

                                 No. 92-118


 David Lashay                                 Supreme Court

                                              On Appeal from
      v.                                      Windham Superior Court

 Department of Social and
 Rehabilitation Services; William
 Young, Commissioner of Social                November Term, 1992
 and Rehabilitation Services;
 P. Lawrence Belove and Ricky Lee
 Rice


 Richard W. Norton, J.

 William M. McCarty and Bruce Hesselbach of McCarty Law Offices, Brattleboro,
    for plaintiff-appellant

 John A. Serafino of Ryan Smith & Carbine, Ltd., Rutland, for defendants-
    appellees



 PRESENT:  Allen, C.J., Gibson, Dooley and Johnson, JJ. and Bryan, Supr. J.,
           Specially Assigned



      GIBSON, J.   Plaintiff David Lashay appeals from a summary judgment
 order entered in favor of defendants Social and Rehabilitation Services
 (SRS); William Young, Commissioner of SRS; and P. Lawrence Belove, a former
 SRS employee.  Plaintiff claims that the court erred in concluding that
 defendants are immune from plaintiff's suit, which alleges that he was
 sexually abused by his foster father after SRS received warnings concerning
 the placement.  We affirm the decision with regard to defendant Young but
 reverse with regard to defendants Belove and SRS.
      In reviewing a decision to grant summary judgment, we regard all
 allegations made in opposition to the motion as true if supported by affida-
 vits or other evidentiary material.  Messier v. Metropolitan Life Ins. Co.,
 154 Vt. 406, 409, 578 A.2d 98, 99-100 (1990).  As a result, we summarize the
 facts as advanced by plaintiff.
      On February 1, 1985, plaintiff was in the custody of the Commissioner
 of SRS (FN1) who placed him in the foster home of defendants Ricky Lee Rice and
 Donna Rice.  The Rices had submitted an application to SRS for a foster home
 license that was pending at the time of placement.  Plaintiff was fourteen
 years old.
      On about February 11, 1985, upon learning that plaintiff had been
 placed with the Rices, William Wait, plaintiff's former foster parent,
 telephoned SRS employees repeatedly to warn them that plaintiff should be
 removed from the Rices' home immediately.  Mr. Wait knew that defendant Rice
 had asked another foster child in Mr. Wait's care to engage in sexual
 activity with him.  Mr. Wait spoke with defendant Belove, the case worker
 supervisor, among others at SRS.  Plaintiff was not removed from the Rice
 household, nor did SRS investigate the allegations.
      During the latter part of February and March 1985, defendant Rice
 sexually abused plaintiff on three occasions.  Plaintiff was removed from
 the Rice household on April 19, 1985, after SRS received complaints about
 the abuse via plaintiff's natural mother.
      Plaintiff filed a complaint against defendants Rice, Young, Belove and
 SRS in May 1989, alleging three counts of assault; negligent placement,
 supervision and investigation; breach of statutory duties; and deprivation
 of liberty under Chapter I, Article 1 of the Vermont Constitution. (FN2)
 On June 28, 1991, defendants Young, Belove and SRS moved for summary judgment 
 on the ground that each was immune from suit for the actions alleged. (FN3) 
 The superior court granted the motion, holding that (1) defendants Young and
 Belove are shielded from suit under the doctrine of official immunity, and
 (2) SRS is shielded from suit under the doctrine of sovereign immunity.
 Plaintiff appeals this decision.
      We first address a procedural issue raised by defendants.  They claim
 this Court has no jurisdiction to consider this appeal until a final
 judgment is entered regarding the claims against defendant Rice.  Defendants
 maintain that the Court cannot consider an appeal in the absence of a final
 order unless the collateral order exception to the finality rule applies.
 See V.R.A.P. 5.1.  We do not address defendants' argument because the trial
 court has entered final judgment regarding defendants Young, Belove and SRS.
      Under V.R.A.P. 4, when the notice of appeal is filed prior to entry of
 final judgment but after a decision has been announced, the notice is
 treated as filed on the day that final judgment is entered.  In this case,
 the decision was announced on January 28, 1992, in the court's summary
 judgment order.  Plaintiff filed a notice of appeal on February 26, 1992,
 and the court entered final judgment pursuant to V.R.C.P. 54(b) on September
 23, 1992.  Consequently, we treat the notice of appeal as though filed on
 September 23.  See V.R.A.P. 4.
                                     I.
      We next consider the issues of immunity.  The first issue is whether
 defendants Young and Belove are entitled to immunity from suit based on the
 facts alleged.  Under some circumstances, official immunity shields state
 officials and employees from lawsuits based on their activities.  Levinsky
 v. Diamond, 151 Vt. 178, 183, 559 A.2d 1073, 1077 (1989), overruled on other
 grounds, Muzzy v. State, 155 Vt. 279, 583 A.2d 82 (1990).  We have recog-
 nized two degrees of official immunity: absolute immunity and qualified
 immunity.  Id. at 184-85, 559 A.2d  at 1078.  Absolute immunity applies to
 judges, legislators and the state's highest executive officers when they
 are acting within their respective authorities.  Id. at 185, 559 A.2d  at
 1078.  Because defendant Young is the highest executive officer at SRS, he
 is entitled to absolute immunity, if he was acting within the scope of his
 authority.  See Curran v. Marcille, 152 Vt. 247, 249, 565 A.2d 1362, 1363
 (1989) (Commissioners of Department of Motor Vehicles and Department of
 Corrections entitled to absolute immunity); Levinsky, 151 Vt. at 185, 559 A.2d  at 1079 (Commissioner of Department of Social Welfare entitled to
 absolute immunity).
      The scope of authority of the Commissioner of SRS is defined, in part,
 by 3 V.S.A. { 3052, which provides:
 Mandatory duties
           (a)  The commissioner shall determine the policies of
         the department, and may exercise the powers and shall
         perform the duties required for its effective
         administration.
           (b)  In addition to the other duties imposed by law,
         the commissioner shall:
            (1) Administer the laws assigned to the department.
            (2) Coordinate and integrate the work of the divi-
         sions.
            (3) Supervise and control all staff functions.
      Plaintiff alleges that defendant Young (1) violated the Foster Home
 Regulations by placing and maintaining plaintiff in an unlicensed home and
 (2) failed to train and supervise employees adequately regarding the
 reporting and investigating of allegations of child abuse.  All of these
 actions fall within the scope the Commissioner's authority to "[a]dminister
 the laws assigned to the department" and to "[s]upervise and control all
 staff functions",  3 V.S.A. { 3052; therefore, defendant Young is entitled
 to absolute immunity.
      Unlike defendant Young, defendant Belove is not among the state's
 highest executive officers.  Qualified immunity, however, protects lower-
 level officers, employees and agents "(1) acting during their employment and
 acting, or reasonably believing they are acting, within the scope of their
 authority; (2) acting in good faith; and (3) performing discretionary, as
 opposed to ministerial acts."  Levinsky, 151 Vt. at 185, 559 A.2d  at 1078.
 Plaintiff concedes that the alleged conduct of defendant Belove was in the
 course of his employment.  He disputes, however, whether defendant Belove
 met the other two elements.
      "Good faith exists where an official's acts did not violate clearly
 established rights of which the official reasonably should have known."
 Murray v. White, 155 Vt. 621, 630, 587 A.2d 975, 980 (1991).  In Murray, we
 held that the defendant SRS case worker was immune from suit for conducting
 an allegedly inadequate and one-sided investigation following a report of
 child sexual abuse.  Id. at 632, 587 A.2d  at 981.  The plaintiff in that
 case argued that the investigation had not been carried out in good faith,
 and that, therefore, the defendant was not entitled to immunity.  There,
 however, the defendant had complied with 33 V.S.A. { 4915 by conducting an
 investigation immediately after receiving the report, and the investigation
 was in conformance with statutory guidelines and the SRS Policy Manual.  Id.
 at 631-32, 587 A.2d  at 981.  We concluded that because the defendant's
 investigation was in compliance with statutory requirements, the case worker
 should not reasonably have known that she was obligated to investigate
 further.  Therefore, we held that her investigation was undertaken in good
 faith.  Id. at 632, 587 A.2d  at 981.
      Under the third element, a discretionary duty is one requiring judgment
 in performance.  Libercent v. Aldrich, 149 Vt. 76, 81, 539 A.2d 981, 984
 (1987).  A ministerial duty is a definite duty imposed by law under the
 conditions shown to exist.  Id.  In Libercent, we held that the duty to
 maintain and repair a state motor vehicle was a ministerial duty where the
 defendants had an absolute duty to the plaintiff to perform periodic
 inspections to ensure roadworthiness and plaintiff had made several reports
 concerning the condition of the vehicle.  Id. at 82, 539 A.2d  at 984.  Thus,
 we concluded that "to the extent the defendants' acts or omissions were
 breaches of their ministerial duties, they are not immune from tort
 liability."  Id.
      In the instant case, plaintiff argues that, after receiving the warning
 on February 11, 1985, concerning plaintiff's placement with defendant Rice,
 defendant Belove had a duty to report to the Commissioner that plaintiff was
 threatened with a substantial risk of physical or mental injury.  See 33
 V.S.A. {{ 4912-4914.  According to plaintiff, Mr. Wait called SRS repeatedly
 on or about February 11, 1985, to urge SRS employees to remove plaintiff
 from the home of defendant Rice.  Mr. Wait spoke with defendant Belove
 during at least one of these calls.  Plaintiff maintains that defendant
 Belove reasonably should have known that he was required to report to the
 Commissioner, and, thus, the failure to report constitutes a failure to act
 in good faith.  Moreover, plaintiff argues that because reporting is
 mandatory, the act is ministerial, not discretionary.  Plaintiff's argument
 regarding both factors relies on his contention that defendant Belove had a
 statutory duty under 33 V.S.A. { 4913(a) to report Mr. Wait's allegations.
      Defendant Belove does not dispute plaintiff's legal analysis; rather,
 he challenges the underlying facts.  He maintains first that he did not know
 of Mr. Wait's reports concerning defendant Rice prior to April 18, 1985, the
 day plaintiff was removed from the Rice household.  Second, he asserts that
 even if he had been aware of Mr. Wait's warnings, they were insufficient to
 trigger mandatory reporting under 33 V.S.A. { 4913(a) because, according to
 defendant Belove, Mr. Wait merely notified SRS that defendant Rice had made
 sexual advances toward a male coworker. (FN4) These assertions create material
 facts in dispute.
      Giving the benefit of all reasonable doubts to the party opposing
 summary judgment, we conclude that defendant Belove is not entitled to
 immunity from suit as a matter of law.  We agree with plaintiff that, under
 33 V.S.A. { 4913(a), defendant Belove had a duty to report Mr. Wait's
 allegations if Mr. Wait told him that defendant Rice had previously
 requested sex with a minor. (FN5) If defendant were required to report but did
 not, the fact finder could find that he violated his statutory duty, and,
 therefore, did not act in good faith.  Cf.  Murray, 155 Vt. at 632, 587 A.2d 
 at 981 (case worker who complied with statutory duty acted in good faith).
 Further, if reporting were mandatory, it was a ministerial, not a
 discretionary duty.  Cf. Libercent, 149 Vt. at 82, 539 A.2d  at 984 (absolute
 duty to inspect state motor vehicles was ministerial duty; thus, defendants
 were not entitled to immunity).  We, therefore, hold that the court erred in
 granting summary judgment in favor of defendant Belove.
                                     II.
      Plaintiff also challenges the court's conclusion that SRS is shielded
 from suit under the doctrine of sovereign immunity.  Sovereign immunity
 protects the state from suit unless immunity is expressly waived by statute.
 Levinsky, 151 Vt. at 183, 559 A.2d  at 1077.  The State of Vermont has waived
 its immunity to certain suits under 12 V.S.A. { 5601.  Curran, 152 Vt. at
 249, 565 A.2d  at 1363.  This statute provides, in part:
         The state of Vermont shall be liable for injury to
         persons . . . caused by the negligent or wrongful act or
         omission of an employee of the state while acting
         within the scope of his employment, under the same
         circumstances, in the same manner and to the same extent
         as a private person would be liable to the claimant . .
         . .
 This provision is similar to 28 U.S.C. { 2674 of the Federal Tort Claims Act
 (FTCA), which permits certain actions in tort to be brought against the
 federal government. (FN6) We therefore look to the case law interpreting the
 federal provision to guide us in determining the extent of the waiver in {
 5601.
      FTCA imposes liability on the government where the plaintiff's cause of
 action is "comparable" to a recognized cause of action against a private
 citizen.  Akutowicz v. United States, 859 F.2d 1122, 1125 (2d Cir. 1988).
 The government remains immune, however, for governmental functions for which
 no private analog exists.  Denis Bail Bonds, Inc. v. State, No. 91-613,
 slip. op. at 4-5 (Vt. Jan. 8, 1993).  In the instant case, the superior
 court decided that there was no private analog to the actions of defendant
 SRS in placing plaintiff in a foster home, and thus, no waiver of sovereign
 immunity.  We disagree.
      Private child-placing agencies are permitted under Vermont law.
 Indeed, SRS is responsible for licensing these agencies.  See 15 V.S.A. {
 432(a).  SRS regulations provide that a "child placing agency is an organi-
 zation established for the purpose of providing or arranging placement for
 children in foster homes, residential child care facilities or adoptive
 homes."  3 Code of Vermont Rules (Human Services -- SRS), Rule 13162005, at
 3.  Accordingly, we conclude that private entities may also place children
 in foster homes.
      Moreover, these agencies have a duty to children in their custody to
 train and supervise agency staff, train and supervise foster parents, con-
 duct thorough home studies before licensing a foster home, provide continu-
 ing supervision and support after a placement is made, and report any sus-
 pected or alleged incident of child abuse or neglect.  Id. at 25-31.  This
 legal duty gives rise to a cause of action against a placement agency where
 a plaintiff establishes the factual elements of negligence.   Consequently,
 there is a private cause of action for negligence that is "comparable" to
 the claim asserted by plaintiff in this case.
      Regardless of this direct analog in the private sector, there are
 numerous other analogous situations on which we could rely.  Many private
 persons entrust the care of children in their custody to other parties such
 as teachers, daycare workers and babysitters.  SRS was not performing a
 uniquely governmental function by delegating care of a child in its custody
 to another person.  Defendant is correct that only the state can remove
 plaintiff from the custody of his parents and legally grant custody to the
 Commissioner of SRS.  Plaintiff's claims, however, are not based on removal
 from his mother's custody but rather on the foster home placement.
      We also recognize private analogs to plaintiff's claim under 33 V.S.A.
 { 4913, the child-abuse reporting statute.  Under this statute, all persons
 in the enumerated professions are obligated to report suspected child abuse.
 The statute does not differentiate between those who are employed by the
 state and those employed in the private sector.  Thus, there is also a
 private analog to the claim asserting violation of the statutory duty to
 report.
      SRS argues that even if the Court finds that there are private analogs
 to the claims herein, this case falls under the exceptions to the general
 waiver in 12 V.S.A. { 5601(a) enumerated in subsection (e)(6). (FN7) This
 subsection states in part that the general waiver does not apply to "[a]ny
 claim arising out of alleged assault."  12 V.S.A. { 5601(e)(6).  We agree
 with SRS that all of plaintiff's claims arise out of the alleged assaults.
      Nevertheless, as plaintiff points out, "[t]he limitations in subsection
 (e) of this section do not apply to claims against the state of Vermont to
 the extent that there exists coverage under a policy of liability insurance
 purchased by the commissioner of general services."  12 V.S.A. { 5601(f).
 Plaintiff maintains that SRS has an insurance policy covering the claims
 herein and has, therefore, waived immunity.  We agree that, to the extent
 that SRS has liability insurance coverage, it has waived the defense of
 sovereign immunity.
      Affirmed with regard to defendant Young.  Reversed and remanded with
 regard to defendants Belove and the Department of Social and Rehabilitation
 Services.

                                    FOR THE COURT:


                                    _______________________________
                                    Associate Justice


FN1.    Defendant Young became Commissioner of SRS on February 5, 1985.

FN2.    We do not reach plaintiff's constitutional claim because the trial
 court has not addressed it.

FN3.    Defendants filed two motions for summary judgment prior to the
motion filed on June 28, 1991, which were both denied.  Defendants did not
raise the immunity issue in either of the previous motions.

FN4.    We agree with the trial court that Mr. Wait's allegation that
 defendant Rice was bisexual is insufficient, as a matter of law, to mandate
 reporting under 33 V.S.A. { 4913(a).  While it seems clear on appeal that
 defendant Rice's male coworker was a minor, the parties dispute whether
 this information was provided to SRS prior to plaintiff's removal from the
 Rice household.

FN5.    Plaintiff also argues that, under 33 V.S.A. { 4915, defendant Belove
 had a duty to investigate Mr. Wait's allegations of abuse.  Defendant cannot
 have both the duty to report the abuse under { 4913(a) and the duty to
 investigate under { 4915.  If defendant Belove was designated under { 4914
 to receive reports of child abuse, then he had a duty to investigate
 reports of child abuse.  There is, however, no evidence that defendant
 Belove was so designated by the Commissioner.  Consequently, on the evidence
 before us, we assume he was required to report any allegations of abuse to
 the appropriate designee.

FN6.    28 U.S.C. { 2674 provides, in part, "The United States shall be
 liable, respecting the provisions of this title relating to tort claims, in
 the same manner and to the same extent as a private individual under like
 circumstances . . . ."

FN7.    Prior to 1989, when plaintiff's claims arose, exceptions to the
 general waiver in { 5601 were enumerated in { 5602.  SRS argued in its brief
 that plaintiff's allegations fall clearly within the exceptions in { 5602.
 In response, plaintiff argued that the state had waived its immunity under
 29 V.S.A. { 1403 to the extent that it purchased liability insurance.
 These statutes were all amended in 1989, see 1989, No. 114 , { 1, and we
 apply the amended provisions to this case.  See Denis Bail Bonds, Inc. v.
 State, No. 91-613, slip. op. at 11 (Vt. Jan. 8, 1993) (applying new
 provisions although case arose prior to 1989 amendments).