Sabia v. Neville

Sabia v. Neville  (95-405); 165 Vt 515; 687 A.2d 469

[Opinion Filed 18-Oct-1996]

       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. 95-405


Terri A. Sabia                                    Supreme Court

                                                  On Appeal from
    v.                                            Chittenden Superior Court

Anna Neville, Meta Strick &                       April Term, 1996
Dennis LaPlant


Linda Levitt, J.

       Kurt M. Hughes of Murdoch & Hughes, Burlington, for
  plaintiff-appellant

       Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O.
  Duane, Assistant Attorney General, Waterbury, for defendants-appellees


PRESENT:       Allen, C.J., Gibson, Dooley and Johnson, JJ., and
               Teachout, Super. J., Specially Assigned


       DOOLEY, J.   This is a companion case to Sabia v. State, 164 Vt. ___,
  669 A.2d 1187 (1995) (Sabia I), in which we decided that two sexually
  abused minors could bring a tort action against the State of Vermont when
  state social workers neglected their statutory duty to provide assistance
  to stop the abuse.  While Sabia I was pending in the trial court, one of
  the plaintiffs in that action brought this separate suit against the social
  workers, Anna Neville and Meta Strick, in their personal capacities, and
  against the alleged abuser, plaintiff's stepfather Dennis LaPlant.  The
  Chittenden Superior Court granted summary judgment for the social workers
  (hereinafter, defendants), holding that they enjoyed qualified immunity
  from the tort claims against them.(FN1)  Plaintiff challenges this ruling, as
  well as defendants' other arguments in support of dismissal of the
  complaint.  We reverse and remand.

 

       The basic allegations were stated in Sabia I as follows:

      Plaintiff Toni Patterson, who was twenty-two years old when she
      filed suit in May 1992, was first sexually abused by her stepfather,
      Dennis Laplant, at the age of six or seven.  She was thirteen years
      old in 1983 when she reported the abuse to a teacher, who
      informed SRS.  An SRS supervisor met with Toni and the teacher
      in March 1983, at which time the supervisor stated that she would
      be in touch, and that either Toni or her stepfather would be
      removed from the home.  No action was taken.

      Plaintiff Terri Sabia, who is three years younger than her
      sister, was sexually abused by her stepfather beginning at age five.
      When Terri was approximately seven years old, a babysitter
      reported to SRS that she had observed physical signs of sexual
      abuse while bathing Terri.  Apparently, nothing was done in
      response to the report.  In 1983, when Terri was eleven years old,
      she reported to the school nurse and principal that Laplant had
      sexually assaulted her.  School officials notified the director of the
      Franklin County Family Center, who investigated and reported to
      SRS that Laplant had admitted having sexual intercourse with Toni
      and "touching" Terri.  SRS took no action in response to the
      report.  The continuing abuse was reported to SRS again in 1986,
      but again nothing was done.  Laplant's sexual abuse of plaintiffs
      continued unabated until 1987.

  Id. at ___, 669 A.2d  at 1190.

       The above facts were based solely on the allegations in the complaint. 
  As discussed below, this action has had some factual development in support
  of the cross-motions for summary judgment, and defendants have denied any
  knowledge of the sexual abuse of plaintiff. Also, plaintiff's sister, Toni
  Patterson, has not joined in this action.

       In her complaint, plaintiff alleged that defendants were negligent and
  grossly negligent and that they intentionally inflicted emotional distress
  on plaintiff.  Defendants immediately moved to dismiss the negligence
  counts on the ground that a damage action based on the negligence of a
  state employee must be brought against the state.  See 12 V.S.A. § 5602(a).
  The court granted the motion to dismiss, and plaintiff has not contested
  that decision on appeal.

       Defendants moved for summary judgment on the remaining counts based on
  affidavits that are summarized below.  Defendants argued that based on the
  undisputed facts they were not grossly negligent and did not intentionally
  inflict emotional distress on plaintiff.  They also

 

  argued that their actions were protected by qualified immunity.  After
  plaintiff responded with affidavits, the superior court granted summary
  judgment for defendants based on qualified immunity and did not reach
  defendants' other arguments.  Plaintiff argues here that the qualified
  immunity decision is erroneous and further that none of defendants' grounds
  for summary judgment are valid.  We agree that it was error to grant
  summary judgment based on qualified immunity, but do not reach the other
  arguments because they have not been considered by the trial court.

       Plaintiff has relied upon three affidavits in opposition to
  defendants' motion for summary judgment.  The affidavit of plaintiff states
  that Dennis LaPlant sexually abused her from age five and had sexual
  intercourse with her from age six.  The acts continued until she was at
  least fifteen years old.  She stated that the acts were first disclosed in
  1979 to a neighbor who reported them to SRS.

       According to plaintiff's affidavit, her older sister Toni reported the
  ongoing sexual abuse of herself to a school teacher in 1982.  The report
  was relayed to defendants, and defendant Strick interviewed Toni Sabia, who
  was then thirteen years old.  At the interview, Toni told Strick that she
  had been sexually abused by LaPlant since she was six or seven years old.
  Defendant Strick promised to remove Toni or LaPlant from the home.

       Also according to the affidavit, plaintiff reported the ongoing sexual
  abuse to a school nurse, who reported it to the director of the Franklin
  County Family Center.  The director interviewed Dennis LaPlant, who
  admitted sexual abuse of both Toni and plaintiff.  The director "reported
  the results of her investigation to SRS . . . ."

       Finally, plaintiff stated in her affidavit that she reported the abuse
  to an SRS investigator in 1986.  According to the affidavit, she reported
  to the investigator that LaPlant had touched her under her clothes, the
  abuse was ongoing, and it had not been discontinued.  She stated she was
  scared during the interview.

       The teacher submitted an affidavit, dated April 15, 1993, confirming
  what plaintiff stated

 

  about her actions.  There is no specific statement in this affidavit that
  Toni disclosed that plaintiff was also being sexually abused by LaPlant. 
  Her affidavit ends, however, with the following paragraph:

     12.  It is very clear to me that the failure of SRS to act on Toni's
     report that she and Terri were being sexually abused was directly
     responsible for extreme emotional distress on the part of both girls,
     not to mention myself.

  The teacher also submitted an affidavit for defendants.  This affidavit,
  dated December 20, 1994, states that neither Toni nor plaintiff told her of
  LaPlant's abuse of plaintiff at any time during the 1980s.  She states that
  she first learned of the abuse of plaintiff from Toni following the
  institution of criminal charges against LaPlant in 1991.

       The director of the Franklin County Family Center prepared an
  affidavit on October 14, 1983, stating that she had learned of the sexual
  abuse of Toni from a school guidance counselor and that she interviewed
  Toni.  Toni at first stated that she did not believe that LaPlant had
  sexually abused plaintiff, but on September 21, 1983 called the director to
  tell her that LaPlant "had molested Terry."  The director met that day with
  Toni and the neighbor to whom, according to her affidavit, plaintiff had
  first reported the sexual abuse.  The neighbor described being present in
  the bathroom of plaintiff's house, while plaintiff was bathing, and
  noticing that plaintiff's vagina was red and swollen.  The neighbor started
  asking plaintiff questions, and plaintiff disclosed LaPlant's sexual abuse
  in response.  The director then met with plaintiff, who described the
  sexual abuse, and the mother of Toni and Terri, who admitted it was
  happening.

       The affidavit goes on to an entry for the next day as follows:
  "Contacted SRS 9/22 - Spoke to Meada regarding this family."  On the same
  day Dennis LaPlant called for an appointment, which was set up for
  September 29th.  According to the affidavit, the Director again contacted
  SRS on the 29th and "spoke to Meada to see if Gary could be present when
  Dennis would be there."  The "Gary" in the affidavit is apparently Gary
  Greenfield, an investigator for the Franklin County State's Attorney.  The
  affidavit goes on to describe the

 

  director's meeting with LaPlant, in which he admitted the sexual abuse of
  both Toni and Terri.

       Defendants submitted affidavits which contradicted in numerous
  respects the statements contained in the affidavits submitted by plaintiff. 
  Generally, defendants denied knowledge of LaPlant's abuse of plaintiff.

       Defendant Neville states that she was the District Director of the St.
  Albans SRS office up until September 1987 and "supervised SRS investigative
  social workers."  She denies receiving any "written report or written
  statement by" the director of the Franklin County Family Center.  As to the
  1986 investigation, she asserts that plaintiff "denied that she had been
  abused by LaPlant since SRS' [sic] had last investigated this matter" and,
  therefore, that no further intrusion into the family was warranted because
  there was no current abuse and plaintiff was not seeking protection.

       Defendant Strick states in her affidavit that her SRS work
  responsibility from 1977 until May 1985 was to "perform child abuse and
  neglect investigations."  She states that she interviewed Toni in 1983, but
  no information from that interview "constituted a report . . . of child
  abuse regarding" plaintiff.  She further states that she never received a
  copy of the director's affidavit and she was not employed by SRS in 1986.

       Based on the above record, the superior court found that defendants
  were protected by qualified immunity because they acted in good faith.  The
  court's reasoning was as follows:

     Defendants investigated a report of abuse concerning plaintiff's
     sister.  At that time there were no allegations of abuse of the
     plaintiff, herself.  Defendant Strick interviewed plaintiff's sister
     and did not receive any information which warranted a child abuse
     investigation with respect to plaintiff.  Based on an objective
     standard, defendants did not violate any clearly established rights
     of plaintiff.  Plaintiff has failed to show that defendants should
     reasonably have known that their acts or omissions violated
     plaintiff's rights.

       The general rule in Vermont is that lower-level government employees,
  like defendants, are protected from tort liability by qualified immunity
  when they perform discretionary acts in good faith during the course of
  their employment and within the scope of their authority.  See

 

  Hudson v. Town of East Montpelier, 161 Vt. 168, 171, 638 A.2d 561, 563
  (1993).  Plaintiff does not contest that two parts of this standard are
  met.  While engaged in the acts or omissions on which plaintiff claims
  liability, defendants were performing a discretionary function and were
  acting during the course of their employment and within the scope of their
  authority.  The question of whether defendants enjoy qualified immunity
  turns, therefore, on whether they were acting in good faith.  See Murray v.
  White, 155 Vt. 621, 629, 587 A.2d 975, 980 (1991) (whether qualified
  immunity attaches for social worker alleged to have negligently conducted
  investigation into charges of sexual abuse depends on whether defendant
  acted in good faith).

       Good faith exists where an official's acts did not violate clearly
  established rights of which the official reasonably should have known.  Id.
  at 630, 587 A.2d  at 980.  To make this determination, we have adopted the
  objective good-faith test from § 1983 qualified-immunity case law.  See
  Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982).  The outcome of the
  inquiry depends on the objective reasonableness of an official's conduct,
  as measured by reference to clearly established law.  Murray, 155 Vt. at
  630, 587 A.2d  at 980.  Of course, when we consider state tort liability,
  the "clearly established law" is not limited to federal constitutional and
  statutory rights, but may include Vermont statutes, regulations and common
  law.  See id. at 630 n.4, 587 A.2d  at 980 n.4.

       We adopted the federal objective good-faith inquiry to prevent
  exposing state employees to the distraction and expense of defending
  themselves in the courtroom.  See Levinsky v. Diamond, 151 Vt. 178, 191,
  559 A.2d 1073, 1081-82 (1989) (objective standard of good faith helps to
  avoid excessive disruption of government and permits resolution of many
  insubstantial claims on summary judgment).  We declined to adopt a
  subjective good-faith test because "a material issue of fact would always
  be present, precluding summary judgment and forcing lower-level state
  employees to undergo, at the very least, extensive discovery and motion
  practice in defending their actions."  Id. at 199, 559 A.2d  at 1087.  In
  applying the good-faith standard to the facts of this case, we look first
  at the theory of liability.  In Sabia I, we held that the State

 

  of Vermont could be liable "when state social workers neglect their
  statutory duty to provide assistance to children seeking protection from
  sexual abuse."  164 Vt. at ___, 669 A.2d  at 1190. The duty of care was
  derived mainly from 33 V.S.A. § 4915(a), which requires the Commissioner of
  SRS to investigate reports of child abuse within seventy-two hours of
  receipt. The statute goes on to detail the content of the investigation,
  id. § 4915(b) and require that, if the investigation discloses that the
  child has been abused or neglected, "the commissioner shall cause
  assistance to be provided to the child and his family in accordance with a
  written plan of treatment," id. § 4915(c).(FN2)  We stated in Sabia I that
  "it is beyond dispute that the relevant statutory provisions create a duty
  on the part of SRS to assist a particular class of persons to which
  plaintiffs belong and to prevent the type of harm suffered by plaintiffs." 
  164 Vt. at ___, 669 A.2d  at 1192.

       We have addressed the good faith prong of qualified immunity in two
  cases that involved similar liability theories to that involved here.  The
  first is Murray v. White, where the plaintiff alleged that the defendant, a
  social worker, did an inadequate investigation of a charge that the
  plaintiff sexually abused two children and, as a result, the state
  wrongfully attempted to revoke his conditional pardon.  We held that the
  defendant's actions were protected by qualified immunity because she
  followed the statutory investigation protocol, 33 V.S.A. § 4915(b), as well
  as the relevant sections of the SRS policy manual:

     The fact that defendant's investigation was in compliance with
     statutory requirements, combined with an inability to find any
     clearly established law that imposed on defendant an obligation to
     investigate further, compels the conclusion that the extent of
     defendant's investigation was in good faith.  Defendant should not
     have reasonably known that she was obligated to investigate any
     further than she did.  In addition, defendant should not have
     reasonably known that the manner of her investigation violated
     plaintiff's rights.

 

  155 Vt. at 632, 587 A.2d  at 981.

       In the second case, LaShay v. Department of Social and Rehabilitation
  Services, 160 Vt. 60, 625 A.2d 224 (1993), the plaintiff was a child in SRS
  custody who was allegedly sexually abused by his foster father in the home
  in which he was placed by SRS.  The plaintiff sued the defendant, an SRS
  supervisor, alleging that the defendant had been warned by another foster
  parent that the plaintiff's foster father had previously requested sex with
  a minor, but the defendant did nothing to protect the plaintiff.  We
  reversed a decision that the defendant's acts were protected as a matter of
  law by qualified immunity.  Id. at 67, 625 A.2d  at 228.  The primary basis
  for our ruling was that the evidence supported the conclusion that the
  defendant had "violated his statutory duty, and, therefore, did not act in
  good faith."  Id.(FN3)

       In this case, the issue of immunity was resolved on defendants' motion
  for summary judgment.  Summary judgment is appropriate when there are no
  genuine issues of material fact and the moving party is entitled to
  judgment as a matter of law, after giving the benefit of all reasonable
  doubts and inferences to the nonmoving party.  Select Design, Ltd. v. Union
  Mut. Fire Ins. Co., 7 Vt. L.W. 110, 111 (Mar. 22, 1996).  The standard on
  appeal is the same as in the trial court.

       The trial court granted summary judgment based on its conclusion that
  defendants were unaware of LaPlant's abuse of plaintiff or were aware of
  past, isolated incidents that did not warrant intervention at the time they
  were disclosed.  Defendants urge us to adopt this position by refusing to
  consider plaintiff's affidavit because much of it is not based on personal

 

  knowledge.  See V.R.C.P. 56(e) ("affidavits shall be made on personal
  knowledge" and "such facts as would be admissible in evidence"); Levy v.
  Town of St. Albans, 152 Vt. 139, 145, 564 A.2d 1361, 1365 (1989) (affidavit
  not based on personal knowledge).

       In ruling on a motion for summary judgment, it is not appropriate for
  us to resolve disputed issues of fact or questions of credibility.  See
  Pierce v. Riggs, 149 Vt. 136, 139-40, 540 A.2d 655, 657 (1987).  We would
  have to violate this rule to uphold the trial court's decision.  Without
  considering the hearsay in plaintiff's affidavit, there is a clear dispute
  of fact over whether defendant Strick knew about LaPlant's ongoing sexual
  abuse of plaintiff.  It is a fair inference from the affidavit of the
  director of the Franklin County Family Center that she learned of this
  abuse on September 21, 1983, and told defendant Strick the next day, when
  she spoke with her on the telephone.  This inference is reinforced by the
  record of an additional conversation a week later when the director was
  trying through defendant Strick to arrange for the presence of a criminal
  investigator at an interview with LaPlant.  Although Strick's affidavit
  states that she had not seen the director's affidavit prior to the
  commencement of this litigation, it says nothing about the content of
  telephone calls.

       We also do not believe that we can neatly separate out the information
  about Toni from the information about plaintiff.  If LaPlant sexually
  abused Toni, it would not be unexpected that LaPlant would sexually abuse
  plaintiff.  Thus, any duty Strick had to investigate the allegation with
  respect to Toni, and provide assistance, may have included an accompanying
  obligation to investigate whether LaPlant was also sexually abusing
  plaintiff.

       We consider the question closer with respect to defendant Neville
  because there is no evidence from which we can infer that anyone informed
  her directly about the abuse of plaintiff. In early 1983, Neville was made
  aware of allegations of sexual abuse of Toni.  In addition, Neville
  supervised defendant Strick and the social worker who interviewed plaintiff
  in 1986, and was presumably aware of what information they received.  At
  least as to the social worker in 1986, there is a conflict in the evidence
  about what she knew.  If plaintiff's testimony were

 

  accepted, this worker knew that the sexual abuse of plaintiff was ongoing. 
  Resolving all inferences and reasonable doubts against summary judgment, as
  we must, we cannot conclude that Neville was so unaware of the abuse of
  plaintiff that she acted in good faith as a matter of law.

       Defendants suggest another method of upholding the trial court by
  arguing that the duties imposed by 33 V.S.A. § 4915 are those of the
  Commissioner of SRS and not others who work for the Commissioner.  We find
  this argument unpersuasive.  The potential liability of the State of
  Vermont explained in Sabia I is based upon "the negligent or wrongful act
  or omission of an employee of the state . . . ."  12 V.S.A. § 5601(a). 
  Nothing in the opinion suggests that the "employee" involved was the
  Commissioner.  Indeed, there is no allegation either in Sabia I or in this
  case that the Commissioner of SRS acted or failed to act with respect to
  Toni or plaintiff. Instead, it is clear that the employee, or more
  precisely the employees, were the SRS employees who are defendants in this
  case.  See Sabia I, 164 Vt. at ___, 669 A.2d  at 1190 (issue in case is
  whether State can be liable when "state social workers neglect their
  statutory duty").  Thus, we believe Sabia I has resolved this argument
  against defendants.

       Even if it had not been resolved, we do not find it persuasive. 
  Defendants could not seriously suggest that the Legislature intended the
  Commissioner personally to investigate reports of child abuse and to render
  assistance.  As defendants' affidavits admit, it was their responsibility
  to act on reports of child abuse, and both had some involvement in the
  events underlying this case.  It would ignore reality to hold that the
  actionable breach of duty, if any, would have to be that of the
  Commissioner.(FN4)

       Since we cannot accept the reasoning of the trial court, or the
  alternative argument of defendants, we hold that it was error to grant
  defendants summary judgment based on qualified immunity.  The case is in
  much the same posture as LaShay and is governed by that holding.

 

  Based on the record before us, a fact-finder could conclude that defendants
  violated their statutory duties under 33 V.S.A. § 4915.  See LaShay, 160
  Vt. at 67, 625 A.2d  at 228.  The duties imposed by the statute are clear
  and mandatory.  We cannot hold, therefore, that defendants are protected by
  qualified immunity as a matter of law.

       Plaintiff has also argued that it would be inappropriate to grant
  summary judgment for defendants on the other grounds asserted in their
  motion.  Because the trial court has not ruled on these grounds, we decline
  to do so for the first time in this Court.

       Reversed and remanded.



     FOR THE COURT:



     _______________________________________
     Associate Justice



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                                  Footnotes


FN1.  The case is still pending in the superior court against Dennis
  LaPlant.  Pursuant to V.R.C.P. 54(b), the superior court has entered
  judgment on the claims against defendants Neville and Strick.  The claims
  against LaPlant are not before us.


FN2.  33 V.S.A. § 4915(c) was amended in 1996 to add that the
  commissioner's duty of assistance is limited by the phrase "to the extent
  that it is reasonable."  1995, No. 178 (Adj. Sess.), § 300.  This
  additional language was not in effect at the time of the events that give
  rise to plaintiff's liability claim, and we do not consider it.


FN3.  The theory of liability in LaShay was somewhat different from
  that here.  The plaintiff in that case argued that the defendant, a social
  worker supervisor, had a duty to report the allegations made against the
  plaintiff's foster father to the Commissioner of SRS pursuant to 33 V.S.A.
  § 4913(a) and that the report would have triggered actions to protect the
  plaintiff.  We noted that the defendant did not dispute the plaintiff's
  legal analysis, but claimed he did not receive the allegations.  LaShay,
  160 Vt. at 66, 625 A.2d  at 228.

       Although the legal theory of LaShay is different, we believe its
  analysis of qualified immunity is determinative, as discussed below.


FN4.  It would also mean, of course, that no individual could ever be
  liable because the Commissioner is entitled to absolute immunity.  See
  LaShay, 160 Vt. at 64, 625 A.2d  at 227.