Fuhrman v. State

• Decision Date: 24 January 2003
• Docket Number: No. S-01-767.,S-01-767.
• Citation: 265 Neb. 176,655 N.W.2d 866
• Parties: Taunia FUHRMAN, Appellee, v. STATE of Nebraska et al., Appellants.
• Court: Nebraska Supreme Court

655 N.W.2d 866

265 Neb. 176

Taunia FUHRMAN, Appellee, v. STATE of Nebraska et al., Appellants.

No. S-01-767.

Supreme Court of Nebraska.

January 24, 2003.

Don Stenberg, Attorney General, Royce N. Harper, and Michelle M. Lewon, Senior Certified Law Student, for appellants.

Michael F. Coyle and Timothy J. Thalken, of Fraser, Stryker, Meusey, Olson, Boyer & Bloch, P.C., Omaha, for appellee.

HENDRY, C.J., and WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

MILLER-LERMAN, J.

I. NATURE OF CASE

Taunia Fuhrman filed a petition under the State Tort Claims Act alleging the State of Nebraska; the Department of Health and Human Services, formerly known as the Department of Social Services (DHHS); and Pam Curry, a DHHS employee (collectively appellants), were liable to Fuhrman for damages she sustained on December 12, 1995, when a ward of the State assaulted Fuhrman at Immanuel Medical Center (Immanuel) in Omaha, Nebraska. Following a bench trial, the Douglas County District Court entered judgment in Fuhrman's favor in the amount of $171,829.59. Appellants filed this appeal. We affirm.

II. STATEMENT OF FACTS

Since November 23, 1988, DHHS has been the legal guardian of Jeffrey L., a minor born on December 4, 1981. After becoming a ward of the State, Jeffrey was placed in either foster care or a care facility. Prior to December 12, 1995, his placement had changed at least 36 times. The turnover was due in part to Jeffrey's physical violence against his caregivers and others. The record reflects that Jeffrey was large and strong for his age. On December 12, Jeffrey weighed approximately 200 pounds.

The history of Jeffrey's conduct was known to DHHS and documented in its records. Those records detailed 27 separate incidents in which Jeffrey assaulted a staff member or someone else at the location of his placement and which had occurred prior to October 1995, when he was transferred to Immanuel. These incidents included: (1) hitting a staff member who sustained injuries necessitating crutches; (2) attacking a staff member with a croquet mallet; (3) biting a staff member so that the staff member required a tetanus shot; (4) assaulting two staff members, as a result of which one required crutches and the other needed stitches; and (5) choking, punching, and pulling the hair of a staff member. As a result of these and other incidents, Jeffrey had been arrested and convicted of criminal assault on three separate occasions. Many of the attacks involved female staff members, and in this connection, DHHS' records indicated that Jeffrey was "more likely to become angry and aggressive with female authority figures" and that he might target females "in particular."

In October 1995, Jeffrey's DHHS caseworker was Susan Hensler. Hensler was aware of Jeffrey's history of physical violence and his assaultive behavior. Hensler had taken over responsibility for Jeffrey's file in June 1995, at which time, she had been advised by another DHHS caseworker that she should use caution in dealing with Jeffrey because he was violent and that Hensler ought not to be alone with him.

On October 19, 1995, Hensler received a telephone call from the director of the Boys and Girls Home and Family Services in South Sioux City, Nebraska (Boys and Girls Home), where Jeffrey was a resident, seeking the removal of Jeffrey from the facility. In the week prior to his discharge from the Boys and Girls Home, Jeffrey had had 13 aggressive episodes. According to the discharge papers, "[o]n three different occasions, [Jeffrey] bit staff members during physical confrontations. These bites broke the skin and required the staff members to seek medical attention. [Jeffrey] also engaged in self harming behaviors during his explosive episodes.... [Jeffrey] repeatedly threatened to kill himself and/or to kill others." The director of the Boys and Girls Home advised Hensler that he wanted Jeffrey transferred immediately. Although Hensler was not given the details regarding Jeffrey's recent behavior, Hensler testified that the director threatened that Jeffrey would simply be "dropped on the street[s] of Omaha" if alternate placement arrangements were not made.

As a result of the director's telephone call, Hensler arranged to place Jeffrey at Immanuel on October 19, 1995. Immanuel is an acute care center, which treats psychiatric patients who cannot be managed on an outpatient basis and who require immediate hospitalization for safety, diagnosis, and treatment. At no time did Hensler provide Immanuel with the details concerning why Jeffrey was being transferred from the Boys and Girls Home.

After making arrangements to place Jeffrey with Immanuel, pursuant to 474 Neb. Admin. Code, ch. 4, § 009.20E (1991), Hensler drove to the hospital to meet the Boys and Girls Home representative traveling with Jeffrey and to facilitate Jeffrey's admission into the hospital. Section 009.20E provides, in pertinent part, as follows:

Placement: At the time of placement, the [case]worker shall—

1. Accompany the parent(s) and child to the foster home or placement facility, observing reactions and answering relevant questions....

....

4. Give the ... caregiver a copy of the Child's Health Record, and discuss the ward's medical needs with the ... facility staff....

5. Answer the ... caregiver(s)' questions[.]

Further, pursuant to 474 Neb. Admin. Code, ch. 4, § 009.20B (1988), when preparing for the placement of a child under DHHS' authority, the caseworker is to gather certain information and provide it to the new caregiver. Included in the information to be provided to the receiving caregiver is information regarding "[t]he child's daily habits and behaviors, particularly any known or suspected tendencies which could be dangerous or detrimental to the child himself/herself, a foster or adoptive family member, facility staff, or other, including but not limited to ... [v]iolence...."

When Jeffrey had not arrived at Immanuel by 6:30 p.m. on October 19, 1995, and notwithstanding the requirements of § 009.20, Hensler left Immanuel. Later that evening, Hensler called the hospital and was told Jeffrey had arrived and had been admitted. That same evening, Hensler had a telephone conservation with someone at Immanuel's access center with respect to Jeffrey's admission. Hensler provided the hospital with Jeffrey's name, address, and insurance information. In this regard, Hensler testified that on October 19, she talked on the telephone to someone at the access center named "Peg." Hensler testified that during this conversation, she informed Peg that Jeffrey was physically aggressive. Hensler admitted that she did not know where Peg was physically located. "Peg" was not identified by any witness at trial.

It is undisputed that Hensler did not tell anyone at Immanuel that Jeffrey had assaulted at least 27 people, that he had three separate convictions for assault, or that he was likely to target female staff members. It is also undisputed that Hensler did not knowingly talk with any members of the psychiatric staff at Immanuel who were responsible for caring for or treating Jeffrey regarding Jeffrey's propensity for violence and his previous assaults. Furthermore, it is undisputed that despite the wealth of records DHHS possessed regarding Jeffrey's history of violence and Hensler's knowledge of Jeffrey's assaultive behavior, neither Hensler nor any other DHHS representative gave Immanuel the documentation concerning Jeffrey's numerous placements and violent behavior.

Following his admission to Immanuel, it is undisputed that Jeffrey acted out on several occasions. On December 12, 1995, while a patient at Immanuel, Jeffrey became angry and left his group therapy session. Fuhrman, a psychiatric technician with Immanuel, followed Jeffrey and convinced him to go to a "quiet room." On the way to the quiet room, Jeffrey ran down the hall, tore the holiday decorations off the wall, and turned to Fuhrman and said he was going to kill her. He then proceeded to choke her, knee her, and pull large portions of her hair from her scalp, while stating, "I'm going to kill her" and "She's not dead yet." It took 12 adults to pull Jeffrey off of Fuhrman. At the time of the attack, Fuhrman was 24 years of age, stood 5 feet 1 inch tall, and weighed 105 pounds. At the time of the attack, the record reflects that Jeffrey was 14 years old and weighed approximately 200 pounds.

Fuhrman was seriously injured as a result of Jeffrey's attack and incurred medical expenses in excess of $16,800. She was not able to return to her former position as a psychiatric technician and has held a variety of jobs since the incident. At trial, Fuhrman testified that she was never informed regarding Jeffrey's previous assaults on caregivers, was never told that Jeffrey would direct aggression at female caregivers, and did not know about his previous convictions for assault. Fuhrman filed a claim pursuant to the State Tort Claims Act. See Neb.Rev.Stat. § 81-8,209 et seq. (Reissue 1996 & Cum. Supp.2002). The State denied Fuhrman's claim, and thereafter, Fuhrman filed a lawsuit against appellants. In her amended and controlling petition, Fuhrman claimed that appellants were negligent in failing to disclose to Immanuel and its employees information regarding Jeffrey's "aggressive and uncontrollable assaultive behavior."

Fuhrman's case was tried to the district court on July 12 through 14, and 31, 2000. The record contains approximately 900 pages of testimony from 10 witnesses and 44 exhibits. Near the close of trial, appellants moved for leave to amend their answer to include the affirmative defenses of sovereign and qualified immunity, based on their understanding that Fuhrman was asserting that appellants had misrepresented Jeffrey's medical history. The district court denied appellants' motion.

In an order filed May 1, 2001, the district court made numerous findings of fact to the effect that DHHS possessed...