Andrade v. Ellefson
| Decision Date | 22 October 1985 |
| Docket Number | No. C4-85-554,C4-85-554 |
| Citation | 375 N.W.2d 828 |
| Parties | John ANDRADE, individually and as parent and natural guardian for Joseph J. Andrade, and Dennis W. Aasen, individually and as parent and natural guardian for Jerrett J. Aasen, Appellants, v. Elizabeth ELLEFSON, et al., Respondents, County of Anoka, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. Anoka County is not a state "employee" qualifying for immunity from liability under the State Tort Claims Act, Minn.Stat. § 3.736, subd. 3(j) (1984).
2. Anoka County owed a special rather than a public duty of care to the infants injured in the licensed day care home.
3. Whether the infants' severe injuries were the result of a superseding cause should be determined at trial.
F. Dean Lawson, John F. Laue, Minneapolis, for appellants.
Graham N. Heikes, St. Paul, Richard A. Beens, Anoka, for Elizabeth Ellefson, et al.
Robert M.A. Johnson, Anoka Co. Atty., Thomas G. Haluska, Asst. Anoka Co. Atty., Anoka, James R. Gowling, St. Paul, for Anoka County.
Heard, considered and decided by POPOVICH, C.J., and FOLEY and LESLIE, JJ.
The parents and guardians of two minor children sued Anoka County for negligence in supervising, inspecting and recommending licensing of the day care home where their infants were seriously injured. Appellants also sued the day care operators for their negligent operation, care and control of the facility. The county moved for summary judgment arguing: (1) it is immune from liability under Minn.Stat. § 3.736, subd. 3(j) (1984) when it acts as a state "employee" recommending the state's issuance of licenses; (2) it cannot be found negligent since it owed the infants only a general public duty rather than a special duty; (3) it is immune from liability because the licensing of day care homes is a discretionary act; and (4) the injuries were the result of a superseding cause.
The trial court granted the county's motion for summary judgment based on its ruling that the county acts as an employee of the state when it inspects and recommends licensing of day care facilities and is therefore immune from liability under section 3.736, subd. 3(j). Appellants appealed and Anoka County filed a notice of review. We reverse and remand for trial.
Respondent Anoka County learned in July 1974 that respondent Elizabeth Ellefson was providing day care services without a license in violation of state law. Ms. Ellefson was notified of this violation and proceeded to apply for a day care license. Her initial application was processed and her home was inspected by Terry Nagel, a former case aide with Anoka County Community Health and Social Services.
Nagel learned and recorded in her inspection report that Leslie Ansleigh, a 21-year-old male who was "possibly retarded," lived in the home. Nagel did not interview Ansleigh or run a background or police check on him. At her deposition she stated that Ms. Ellefson had told her that Ansleigh had been in a home for mentally retarded youth. Nagel recommended that the Ellefson home be licensed, and the license was issued allowing for the care of five preschool children.
In December 1975, Nagel conducted the annual relicensing inspection. Nagel recalled that, at that time, there were eight or nine children using the home, not necessarily at the same times of day. The home was relicensed upon Nagel's recommendation and following her inspections, in 1975, 1976, 1977, 1978 and 1979. Ms. Ellefson voluntarily quit day care in April 1979, then sought relicensing again for 1980. Following an inspection visit, at which time Ansleigh was again observed in the home, Nagel recommended relicensing for 1980. Nagel received several complaints from a neighbor of the Ellefsons who observed overcrowding at the Ellefson day care home. Apparently these complaints were not investigated.
The interrogatories indicate that Ansleigh was investigated for child molestation on at least one occasion. The mothers of two small girls who attended the Ellefson day care home submitted statements to Anoka County authorities in June 1983 regarding the sexual abuse of their daughters by Ansleigh in January 1977. The mothers stated that Ms. Ellefson promised to quit day care and obtain counseling for Ansleigh. The deposition of a psychologist indicates Ansleigh received counseling from October 1978 to January 1979.
Although there is no indication that the county learned of this information before Ms. Ellefson's license was suspended in 1983, the county did conduct a pre-licensing inspection of Ms. Ellefson in 1980 when she began day care again. At this time Ansleigh was not interviewed and no police check was conducted even though he was in the home at the time of the visit. The interrogatories indicate that Deputy Sheriff Roger Foss told appellants that "an employee of Elizabeth Ellefson's day care center had been investigated for child molestation on at least one occasion."
In 1981, James Eyer, a day care licenser for Anoka County, became responsible for inspecting, licensing and supervising the Ellefson day care home. He conducted the annual legally-mandated inspections in 1982 and 1983, recommending the relicensing of the Ellefson home. By apparent oversight, he failed to conduct such an inspection in 1981 but nevertheless recommended relicensing.
Eyer conducted his first licensing inspection of the operation in January 1982. At this unannounced inspection, he found the Ellefson home violating its license because six pre-school children were observed on the main floor of the home, the only floor he checked. He also met Ansleigh, an adult male living in the home whom he learned assisted Ms. Ellefson, at least on a part-time basis, in child care. Eyer did not speak with, investigate or run a police check on Ansleigh despite licensing rules requiring this. The home was recommended for relicensing.
Several complaints, discussed more fully in the analysis, were received by Eyer and his co-worker regarding overcrowding and abuse of children in the Ellefson home. Although Eyer drove by the home once to see if there were many children in the yard, as reported, he did not investigate the other complaints. Instead, he believed the complaints were made by a "troublemaker." His co-worker considered the frequent complaints "far-fetched."
On December 12, 1982, 7-month-old Joseph Andrade sustained serious injuries while at the Ellefson day care home. The interrogatories indicate that the Andrade infant was treated for a convex skull fracture, epilepsy and other injuries. Anoka County child protection worker Barbara Ingrassia investigated the injury. Written materials prepared by her were kept confidential in compliance with Minn.Stat. §§ 626.556 and 13.05, subd. 4 (1984). Records were subsequently destroyed between December 1982 and January 1985 according to Ingrassia, as required by section 626.556, subd. 11.
The Ellefson home was inspected and relicensing recommended by Eyer in January 1983. Solicited recommendations from parents included one favorable report from the mother of Joseph Andrade. She did not mention her child's injuries in her evaluation form.
On May 26, 1983, 7-month-old Jerrett Aasen was seriously injured in the Ellefson day care home. He stopped breathing, was resuscitated by Ms. Ellefson and then taken by ambulance to Unity Hospital. He was later transported to Minneapolis Children's Hospital for further treatment and evaluation. The injuries of the Aasen infant include sustained brain damage, visual loss and spastic quadriparesis, subarachnoid hemmorage, cerebral palsy, plus other possible injuries. The complaint alleges the children suffer from permanent and disabling injuries likely to prevent them from engaging in productive employment.
After Eyer learned from a neighbor about the ambulance appearing at the Ellefson home to take a baby away, he went to the Ellefsons where he learned:
I am fairly sure that she said that they had fed him and were taking him in for his nap, and enroute he just stopped breathing.
When asked:
Did she tell you, do you remember whether she told you whether she was taking him back to his bed or whether Leslie Ansleigh was taking him back to his bed?
Eyer responded:
I believe she said Leslie was.
Ingrassia stated in her report that one of the doctors she spoke with about the injuries of the 7-month old Aasen infant related to her that: "The reports which he had reviewed from the neurologist and the ophthalmologist indicated some acute and chronic eye ground hemorrhaging which was consistent with hard shaking." The report also revealed evidence of an arm fracture sustained 2-5 weeks earlier.
On June 2, 1983, after learning that the Aasen baby "was worse off than we had thought, and it may not have been just holding his breath, that there was possibly something else involved," Eyer and Ingrassia went to the Ellefson home. They found 13 children present on various floors of the home and two unattended in the yard. All were under the age of 3 1/2 years (6 were under 13 months of age). Leslie Ansleigh was also present. Ingrassia felt compelled to note her observations in her report on the investigation of the abuse of the Aasen baby:
From the outside of the house, it is apparent that all of the windows in the home are not only closed, but sealed with plastic on the outside. The temperature in the home was high, my guess would be at least 80 degrees. The draperies were mostly pulled and the only light on was a plant light in the living room. After the children left, Mrs. Johnson and I toured the premises where we noted two small bedrooms, probably no larger than 8 X 10 feet, each contained four cribs. The lights were out and the draperies were drawn. There was one crib in what is apparently the master bedroom, which is off the living room. There was also a crib in an unfinished attic, as well as the portable type crib...
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