Jensen v. South Carolina Dept. of Social Services, 1273

• Decision Date: 07 December 1987
• Docket Number: No. 1273,1273
• Citation: 297 S.C. 323,377 S.E.2d 102
• Court: South Carolina Court of Appeals
• Parties: Karole K. JENSEN, As Administratrix of the Estate of Michael Clark, Deceased, Appellant, v. SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES et al., Defendants, Of Whom Virgil Conrad, in his individual and official capacity as Commissioner of the Department of Social Services, et al., are Respondents. . Heard

Page 102

377 S.E.2d 102

297 S.C. 323

Karole K. JENSEN, As Administratrix of the Estate of Michael Clark, Deceased, Appellant, v. SOUTH CAROLINA DEPARTMENT OF SOCIAL SERVICES et al., Defendants Of Whom Virgil Conrad, in his individual and official capacity as Commissioner of the Department of Social Services et al., are Respondents.

No. 1273.

Court of Appeals of South Carolina.

Heard Dec. 7, 1987.

Decided Dec. 28, 1988.

O. Fayrell Furr, Jr., Myrtle Beach, and Charles L. Henshaw, Jr., Columbia, both of Law Offices of O. Fayrell Furr, Jr., for appellant.

Joel H. Smith and Arthur L. Coleman, both of Nelson, Mullins, Riley & Scarborough, Mary Gordon Baker, of Nexsen, Pruet, Jacobs & Pollard, George C. Beighley, of Richardson, Plowden, Grier & Howser, Columbia, H. Grady Kirven, of Watkins, Vandiver, Kirven, Gable & Gray, of Anderson, and F. Dean Rainey, Jr., of Rainey Britton, Gibbes & Clarkson, Greenville, for respondents.

BELL, Judge:

Karole K. Jensen, administratrix of the estate of Michael Clark, brought wrongful death and survival actions alleging that numerous defendants negligently failed to prevent Michael's death. The original defendants included: the South Carolina Department of Social Services (DSS); Virgil Conrad, the Commissioner of DSS; the members of the State DSS Board; the members of the Anderson County DSS Board; and the following employees of the Anderson County DSS Board: Kenneth Pryor, Director; Dawn Hawkins, Program Director for Human Services; and Susan Straup and Charie Ann Jenkins, social workers. Pursuant to Rule 12(b)(6) of S.C.R.Civ.P., the defendants moved to dismiss for failure to state a cause of action. At the motion hearing, Jensen agreed to the dismissal of the State Department of Social Services and two members of the Anderson County DSS Board, Jerry Herd and Harold E. Simpson. The trial court granted the motion to dismiss as to the remaining defendants. Jensen appeals. We affirm in part, reverse in part and remand.

On appeal from granting a Rule 12(b)(6) motion, the reviewing court may not consider matters outside the pleadings; well pleaded facts are admitted, but inferences drawn by the plaintiff from such facts and conclusions of law are not admitted. Carolina Winds Owners Association, Inc. v. Joe Harden Builder, Inc., 297 S.C. 74, 374 S.E.2d 897 (Ct.App.1988).

In February 1980, a school teacher reported that Shane Clark, Michael's older brother, was being abused. The teacher suspected that Wayne Drawdy, a boy friend of Shane's mother, was beating the children in the Clark home. On the day of the report, Jenkins talked with Shane at the school. Shane had unexplained bruises on his face and body and expressed a fear of his "father," Drawdy.

In these circumstances, the South Carolina Child Protection Act ¹ required Jenkins to conduct "an appropriate and thorough" investigation to determine whether the report of abuse was "indicated" or "unfounded." Jenkins started the investigation by talking to Shane, but after that she gathered no further information for the file, because she was unable to contact the Clark family. She did not contact Shane's school or check the food stamp index in her attempt to locate them. If Jenkins had visited the home and determined Michael's welfare was threatened, the Act would have required her to petition the family court for his removal from the home. See Section 20-7-736, Code of Laws of South Carolina, 1976, as amended.

In May 1980, Jenkins and Straup closed the Clark file as "unfounded." Jenkins never located the Clark family. On June 23, 1980, Drawdy beat Michael to death.

Jensen brought suit claiming the defendants breached duties imposed on them by the South Carolina Act and the federal Child Abuse Prevention and Treatment Act of 1973. ² She maintains that if an appropriate investigation had been made and Michael had been removed from the home, as these statutes require, his death could have been prevented.

The purpose of the South Carolina Child Protection Act is set forth in the statute itself:

Recognizing that abused and neglected children in South Carolina need protection, it is the purpose of this article to save them from injury and harm by establishing an effective reporting system and encouraging the reporting of children in need of protection; ... by establishing fair and equitable procedures, compatible with due process of law to intervene in family life with due regard to the safety and welfare of all family members....

Section 20-7-480, Code of Laws of South Carolina, 1976, as amended.

The Act requires local child protection agencies: ³ (1) to commence a thorough investigation of all reports of suspected child abuse within twenty-four hours of receipt; (2) to make a determination whether a report is "unfounded" or "indicated" within sixty days of receipt of the report; (3) to base an "indicated" finding upon a determination that abuse is more likely than not to have occurred; and (4) to provide protective services to children if abuse is "indicated." Section 20-7-650, Code of Laws of South Carolina, 1976, as amended. If it appears the abuse is endangering the child's welfare, the Act requires the agency to petition the family court to remove the child from the home. Section 20-7-736, Code of Laws of South Carolina, 1976, as amended.

The trial court found the Act does not create a private right of action in favor of Jensen. The court also found any action at common law was precluded because the duties of these defendants are public in nature and cannot be privately enforced. Finally, the court found the defendants were entitled to official immunity.

I.

For convenience, the defendants can be divided into two groups: the statewide DSS officials and the officials and employees of the local child protection agency. We first address Jensen's claims against the statewide officials. She asserts these defendants had a duty to act to prevent Michael's death.

Ordinarily, the common law imposes no duty on a person to act. An affirmative legal duty exists only if created by statute, contract, relationship, status, property interest, or some other circumstance.

In order to show that the defendant owes him a duty of care arising from a statute, the plaintiff must show two things: (1) that the essential purpose of the statute is to protect from the kind of harm the plaintiff has suffered; and (2) that he is a member of the class of persons the statute is intended to protect.

Rayfield v. S.C. Department of Corrections, --- S.C. ---, 374 S.E.2d 910 (Ct.App.1988).

Although a statute may create an affirmative legal duty, the "public duty" rule presumes statutes creating or defining the duties of a public office have the essential purpose of providing for the structure and operation of the government or of securing the general welfare and safety of the public. Id. They create no duty of care towards individual members of the general public. ⁴ However, the Legislature may enact a statute with the essential purpose of protecting identifiable individuals from a particular harm. In such a case, the statute is said to create a "special duty" which will support an action for negligence. Id.

A special duty exists if: (1) an essential purpose of the statute is to protect against a particular kind of harm; (2) the statute, either directly or indirectly, imposes on a specific public officer a duty to guard against or not cause that harm; (3) the class of persons the statute intends to protect is identifiable before the fact; (4) the plaintiff is a person within the protected class; (5) the public officer knows or has reason to know of the likelihood of harm to members of the class if he fails to do his duty; and (6) the officer is given sufficient authority to act in the circumstances or he undertakes to act in the exercise of his office. Id.

Jensen alleges that the following duties imposed by the Child Protection Act were breached by the DSS officials at the state level:

(1) the members of the State DSS Board failed to implement the requirement that the full contents of telephone reports of suspected cases of child abuse be forwarded to local child protection agencies, see Section 20-7-640, Code of Laws of South Carolina, 1976, as amended;

(2) Conrad and the members of the State DSS Board failed to conduct training programs for the staff of the Anderson County child protection office, see Section 20-7-660, Code of Laws of South Carolina, 1976, as amended;

(3) Conrad failed to establish a separate organizational unit within DSS to fulfill the purposes of the Act, see Section 20-7-640, Code of Laws of South Carolina, 1976, as amended;

(4) Conrad and the State DSS Board failed adequately to assign and monitor child protection responsibility, and to provide assistance in diagnosing cases of child abuse, see Section 20-7-640, Code of Laws of South Carolina, 1976, as amended.

She claims that each of these statutes is the source of a duty of care to Michael Clark.

These sections deal with the organization and general management of the child protection program at the statewide level. They do not impose on these statewide officers any duties with respect to individual cases of child abuse. They provide no specific authority for these officers to intervene directly to protect individual children from abuse. For these reasons, we hold the DSS officials at the state level had no special duty to Michael Clark by virtue of the Act.

II.

Jensen alleges that the following duties imposed by the Child Protection Act were breached by the local child protection agency, its officers, and its employees.

(1) Hawkins and Pryor failed to conduct training programs for the staff of the Anderson County child protection office, see Section 20-7-660, Code of Laws of South Carolina, 1976, as amended;

(2) the Anderson County DSS Board, Hawkins and Pryor failed to adequately staff the Anderson County child protection office with persons trained in the...