Cuyler v. U.S.

• Decision Date: 09 March 1999
• Docket Number: No. 98 C 3786.,98 C 3786.
• Citation: 37 F.Supp.2d 1099
• Parties: Gretchen D. CUYLER, Special Administrator of the Estate of Christian Cuyler, deceased, Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Illinois

37 F.Supp.2d 1099

Gretchen D. CUYLER, Special Administrator of the Estate of Christian Cuyler, deceased, Plaintiff, v. The UNITED STATES of America, Defendant.

No. 98 C 3786.

United States District Court, N.D. Illinois, Eastern Division.

March 9, 1999.

Randall F. Peters, Randall F. Peters & Associates, Chicago, IL, William Lawrence Suhadolnik, Simonian & Suhadolnik, Waukegan, IL, for plaintiff.

Matthew David Tanner, Asst. U.S. Atty., United States Attorney's Office, Chicago, IL, for defendant.

MEMORANDUM OPINION AND ORDER

MAROVICH, District Judge.

Plaintiff Gretchen D. Cuyler ("Cuyler"), Special Administrator of the Estate of Christian Cuyler ("Decedent"), deceased, filed a Complaint against the United States of America ("United States") pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The United States presently moves to dismiss Cuyler's Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court denies the motion.

BACKGROUND¹

For "a long period of time prior to September 1, 1994," Edwena D. Higgs ("Higgs") allegedly operated and provided unauthorized, officially unapproved and unlicenced day care and babysitting services. (Cmplt.¶ 6.) Higgs, a dependant of an enlisted individual with the Navy, allegedly provided these services in officially assigned United States Naval Housing in Great Lakes, Illinois "with the actual and/or constructive knowledge of the United States Navy." (Id.)

On or about August 1, 1994 through August 4, 1994, Higgs babysat Antonious Norman ("Baby Norman"), the sixteen month old son of an active Navy enlisted man, Anthony Norman ("Norman"). Cuyler alleges that, during the babysitting, Higgs physically beat and abused Baby Norman, causing him to sustain certain external and readily-apparent visible injuries. When Norman observed his son's injuries after picking him up from Higgs' residence on August 4, 1994, Norman took his son to the Great Lakes Naval Hospital for emergency medical care and treatment.

At the hospital, the hospital personnel who examined and treated Baby Norman, including certain nurses and doctors, were allegedly advised of the suspected beating committed upon the baby by Higgs at her base housing. The various medical personnel, including nurses and attending physicians, allegedly advised Norman that "they would, pursuant to standing orders, procedures and protocol, report and undertake an investigation of his report and suspicions of physical abuse and the beating of his son by ... Higgs while he was being provided babysitting and day care services at the ... base housing." (Id. ¶ 10.) Cuyler's Complaint alleges, however, that Higgs' alleged abuse of Baby Norman went unreported.

On September 1, 1994, Higgs babysat the Decedent at her Navy base housing. Allegedly, Higgs negligently and/or intentionally physically abused the Decedent, resulting in the Decedent sustaining personal injuries which ultimately resulted in his death later in the day on September 1, 1994.

Cuyler's Complaint alleges that the United States had a duty, through its agents, to provide safety and security for the foreseeable and intended Navy personnel and dependents, including the Decedent. Cuyler alleges that the United States breached that duty by:

• negligently and carelessly fail[ing] to follow "NAVHOSPGLAKESINST 6320.57C" in direct contradiction and contravention of standing orders, regulations and protocol of the Department of Defense and Department of Navy;

• negligently and carelessly fail[ing] to advise the Nurse of the Day, the Medical Officer of the Day or Family Advocacy Representative of the suspected severe physical abuse perpetrated by ... Higgs on [Baby] Norman, while said child was in her exclusive care, custody and control on or about August 4, 1994 and the days preceding that date, in violation of NAVHOSPGLAKESINST 6320 .57C and/or other orders, regulations or protocol;

• negligently and carelessly fail[ing] to advise or report procedures of all suspected child abuse/neglect to the State of Illinois Department of Children and Family Services ("DCFS") on the 24 hour hotline, as required by NAVHOSPGLAKESINST 6320.57C and/or other orders, regulations, or protocol; and

• were otherwise careless and negligent in the administration and operation of the Great Lakes Naval Hospital.

(Id. ¶ 13.) Cuyler alleges that the above breaches of duty by agents of the United States were the proximate cause of the Decedent's injuries and subsequent death.

On or about August 26, 1996, Cuyler presented her claim for personal injuries to the Commanding Officer of the Naval Legal Services Officer, Great Lakes, Illinois. On December 19, 1997, Cuyler's claim was denied by the Commanding Officer of the Judge Advocate General's Corps, Navy Legal Service Office Central in Pensacola, Florida.

On June 18, 1998, Cuyler filed her Complaint in this Court, seeking compensatory damages for wrongful death (Count I) and survival (Count II). The United States now moves to dismiss Cuyler's Complaint pursuant to Fed.R.Civ.P. 12(b)(6), asserting that Cuyler's Complaint fails to state a claim upon which relief can be granted.

DISCUSSION

I. Standards for Motion to Dismiss

When reviewing a motion to dismiss, the Court examines the sufficiency of the complaint rather than the merits of the lawsuit. Triad Assoc. v. Chicago Hous. Auth., 892 F.2d 583, 586 (7th Cir.1989). "[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence that supports the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). A motion to dismiss will be granted only if the Court finds that the plaintiff can put forth no set of facts that would entitle her to relief. See Venture Assoc. Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 432 (7th Cir.1993); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). On a motion to dismiss, the Court draws all inferences and resolves all ambiguities in the plaintiff's favor and assumes that all well-pleaded facts are true. See Dimmig v. Wahl, 983 F.2d 86, 87 (7th Cir.1993).

II Liability under the Federal Tort Claims Act

The Federal Tort Claims Act ("FTCA") grants the federal district courts jurisdiction over a category of claims for which the United States has waived its sovereign immunity and rendered itself liable. See 28 U.S.C. § 1346(b); Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 477, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). Under the FTCA, the government is liable for the negligent conduct of an employee "while acting within the scope of his office or employment" under circumstances where "a private person[] would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1).

The Supreme Court has "consistently held that § 1346(b)'s reference to the `law of the place' means law of the State — the source of substantive liability under the FTCA." Meyer, 510 U.S. at 478, 114 S.Ct. 996. As such, "for liability to arise under the FTCA, the plaintiff's cause of action must be `comparable' to a `cause of action against a private citizen' recognized in the jurisdiction where the tort occurred, and the allegations, taken as true, must satisfy the necessary elements of that comparable state cause of action." Bergquist v. United States, 849 F.Supp. 1221, 1232 (N.D.Ill.1994) (quoting Chen v. United States, 854 F.2d 622, 626 (2d Cir. 1988)).

As an initial matter, Cuyler asserts that her allegation that the government violated particular Naval regulations, by itself, supports a negligence claim. (Pl. Resp. at 2.) The Court disagrees. "Simply alleging violations of the Federal Constitution, federal statutes or federal regulations does not satisfy the FTCA's `law of the place' requirement." Bergquist, 849 F.Supp. at 1232. "The negligent performance of duties embodied in federal statutes and regulations may give rise to a claim under the FTCA, but only if there are analogous duties under local tort law." Id. (citing Art Metal-U.S.A., Inc. v. United States, 753 F.2d 1151, 1157-58 (D.C.Cir. 1985)). Thus, for Cuyler's action to be cognizable under the FTCA, Illinois law — the law of the place where the alleged negligent acts occurred — must recognize a claim for negligence under the circumstances here.

In answering the above issue, there are some undisputed matters. First, Illinois, like many states, has enacted a statute — the Abused and Neglected Child Reporting Act (the "Child Abuse Reporting Act") — mandating that medical caregivers, teachers and designated others promptly report signs of child abuse to the appropriate authorities. See 325 ILCS 5/1 et seq. Second, the Child Abuse Reporting Act provides for criminal penalties (or, in the case of physicians, professional discipline) for willful failure to report. See 325 ILCS 5/4.02. Third, no Illinois court has expressly addressed whether, in light of the Illinois reporting statute or otherwise, there is a private cause of action based on a failure to report suspected child abuse.

In its motion to dismiss, the United States asserts that Illinois courts would not recognize a civil cause of action under the circumstances here. As support, the government directs this Court to precedent from other states which have declined to create a private cause of action in similar situations involving state reporting statutes. See Perry v. S.N., 973 S.W.2d 301, 309 (Tex.1998); Letlow v. Evans, 857 F.Supp. 676, 678 (W.D.Mo.1994); Vance v. T.R.C., 229 Ga.App. 608, 494 S.E.2d 714, 716-17 (1997); J.A.W. v. Roberts, 627 N.E.2d 802, 813 (Ind.Ct.App.1994). The government further asserts that even if Illinois recognized a private cause of action for failure to report, extending the government's duty to a child who is not the same child whose abuse it failed to report would be unprecedented.

For starters, this Court need...