Cuyler v. U.S.

• Decision Date: 30 March 2004
• Docket Number: No. 03-2298.,03-2298.
• Citation: 362 F.3d 949
• Parties: Gretchen D. CUYLER, Special Administrator of the Estate of Christian Cuyler, deceased, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

362 F.3d 949

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

No. 03-2298.

United States Court of Appeals, Seventh Circuit.

Argued February 26, 2004.

Decided March 30, 2004.

William L. Suhadolnik (argued), Waukegan, IL, for Plaintiff-Appellee.

William G. Cole (argued), Department of Justice Civil Division, Appellate Section, Washington, DC, Jack Donatelli, Office of the United States Attorney, Chicago, IL, for Defendant-Appellant.

Before BAUER, POSNER, and KANNE. Circuit Judges.

POSNER, Circuit Judge.

This is a suit for wrongful death brought against the United States under the Federal Tort Claims Act, which, with limitations that we can ignore, makes the federal government liable for the torts of its employees to the same extent that they would be liable under the law of the place where the tort was committed, in this case Illinois. A trial in the district court resulted in a judgment for the plaintiff for $4 million, from which the government appeals.

In August of 1994, a woman named Higgs, babysitting for the family of a Navy enlisted man named Norman who was stationed at the Great Lakes Naval Base near Chicago, abused Norman's 14-month-old son. The abuse resulted in injuries that required the child's hospitalization at Great Lakes Naval Hospital, a federal facility. The medical personnel at the hospital, who are federal employees, failed to report the incident to the Illinois Department of Children and Family Services, as required by the state's Abused and Neglected Child Reporting Act (ANCRA), 325 ILCS 5/1 et seq. That it is a federal hospital that may or may not be subject to ANCRA is irrelevant to the government's liability under the tort claims act, for reasons explained in Carter v. United States, 333 F.3d 791, 795 (7th Cir.2003).

Higgs said that the child's injuries had been caused by his falling down "the steps," presumably accidentally, but the medical personnel should have realized that the child was a victim of abuse rather than of accident. Indeed, they seem to have been suspicious, and asked the child's father whether he suspected abuse. He said he didn't know. They asked him whether he wanted them to report the incident as abuse, and he replied, "if that's what you're supposed to do, do your job." Mrs. Norman told her husband, "it doesn't look like [the child] fell down the steps; he was beat up," but it is unclear whether she told the medical personnel this.

The Act provides that any of a very long list of persons, ranging from physicians to foster parents, homemakers, and childcare workers and clearly encompassing the medical personnel who examined the Norman child, "having reasonable cause to believe a child known to them in their professional or official capacity may be an abused child or a neglected child shall immediately report or cause a report to be made to the Department." 325 ILCS 5/4. The statute provides criminal and disciplinary sanctions for willful violations, id., 5/4.02, but does not specify any purely civil sanctions, such as damages or injunctive relief. The government concedes that the medical personnel at Great Lakes Naval Hospital violated the Act by failing to report possible abuse of the Norman child.

Twenty-eight days after that incident, Higgs babysat for another Navy family at Great Lakes Naval Base, the Cuylers. Higgs abused the Cuylers' child, inflicting injuries that this time were fatal, and precipitating this lawsuit. (Higgs, though convicted of involuntary manslaughter for the death of the child, is not a defendant in this suit.) The plaintiff argues that her child's death was caused by the Navy personnel's violation of the Illinois abuse-notification statute in regard to the Norman child, and that either there is an implied right of action for damages under the statute, or, if not, then because the statute is intended for the protection of children such as the abused Cuyler child a violation of it is prima facie evidence of negligence under the common law of Illinois. The district court agreed with the plaintiff's second ground and therefore did not address the first, but the plaintiff as is her right asks us to affirm on the first if we disagree with the district court on the second. We begin with the second since it's the one the district court considered.

A conventional principle of tort law, in Illinois as elsewhere, is that if a statute defines what is due care in some activity, the violation of the statute either conclusively or (in Illinois) presumptively establishes that the violator failed to exercise due care. E.g., Abbasi ex rel. Abbasi v. Paraskevoulakos, 187 Ill.2d 386, 240 Ill. Dec. 700, 718 N.E.2d 181, 185 (1999); Marquay v. Eno, 139 N.H. 708, 662 A.2d 272, 277 (1995); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 36 (4th ed.1984). But the statutory definition does not come into play unless the tort plaintiff establishes that the defendant owes a duty of care to the person he injured (ordinarily the plaintiff, though in this case the plaintiff's decedent), because tort liability depends on the violation of a duty of care to the person injured by the defendant's wrongful conduct. E.g., Ward v. K Mart Corp., 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223, 226-27 (1990); Kirk v. Michael Reese Hospital & Medical Center, 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387, 395-96 (1987); Swett v. Village of Algonquin, 169 Ill.App.3d 78, 119 Ill.Dec. 838, 523 N.E.2d 594, 597 (1988).

Ordinarily the scope of the tort duty of care — whether it extends to bystanders, customers, investors, unforeseeable plaintiffs (as in the famous Palsgraf case), and so forth, see Edwards v. Honeywell, Inc., 50 F.3d 484, 488-90 (7th Cir. 1995), and cases cited there — is given by the common law. E.g., Ward v. K Mart Corp., supra, 143 Ill.Dec. 288, 554 N.E.2d at 226-27; Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991); Dunphy v. Gregor, 136 N.J. 99, 642 A.2d 372, 377 (1994); Calkins v. Cox Estates, 110 N.M. 59, 792 P.2d 36, 39 and n. 1 (1990); Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or. 329, 83 P.3d 322, 328-29 (2004); Bernethy v. Walt Failor's, Inc., 97 Wash.2d 929, 653 P.2d 280, 282 (1982). And although the legislature can and sometimes does create a duty of care to a new class of injured persons, the mere fact that a statute defines due care does not in and of itself create a duty enforceable by tort law. E.g., Board of Education v. Du Page County Election Comm'n, 341 Ill.App.3d 327, 276 Ill.Dec. 195, 793 N.E.2d 954, 957-58 (2003). The distinction is well explained in Marquay v. Eno, supra, 662 A.2d at 277: "whether or not the common law recognizes a cause of action, the plaintiff may maintain an action under an applicable statute where the legislature intended violation of that statute to give rise to civil liability. The doctrine of negligence per se, on the other hand, provides that where a cause of action does exist at common law, the standard of conduct to which a defendant will be held may be defined as that required by statute, rather than as the usual reasonable person standard." See also Kansas State Bank & Trust Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 819 P.2d 587, 603 (1991). Otherwise every statute that specified a standard of care would be automatically enforceable by tort suits for damages — every statute in effect would create an implied private right of action — which clearly is not the law. The only modification required to make the passage that we quoted from the Marquay case an accurate statement of Illinois law is that in Illinois the violation of a statutory standard of care is prima facie evidence of negligence rather than negligence per se.

From this analysis it follows that only if the Illinois common law of torts imposed on the medical personnel of the Great Lakes Naval Hospital a duty of care to the Cuylers' child would the Illinois notification statute specify the level of care that they owed the child — specify, that is, that due care required taking steps to prevent Higgs from further babysitting until the circumstances in which the Norman child had been injured were clarified. In general, however, tort law imposes on people only a duty to take reasonable care to avoid injuring other people, and not a duty to rescue others from injuries by third parties, though there are exceptions. For the rule and its exceptions, see our recent discussion in Stockberger v. United States, 332 F.3d 479, 480-82 (7th Cir.2003); for the rule in Illinois, see, e.g., Parra v. Tarasco, Inc., 230 Ill.App.3d 819, 172 Ill. Dec. 516, 595 N.E.2d 1186, 1187-90 (1992) ("the common law recognizes no general duty to aid a person in peril"). In other words, there is no general duty in the common law duty to be a "good Samaritan." This principle is well settled in Illinois, as elsewhere. Besides the Parra case, see, e.g., Rhodes v. Illinois Central Gulf R.R., 172 Ill.2d 213, 216 Ill.Dec. 703, 665 N.E.2d 1260, 1270 (1996); Handzel v. Kane-Miller Corp., 244 Ill.App.3d 244, 185 Ill.Dec. 72, 614 N.E.2d 206, 208 (1993); Traudt v. City of Chicago, 98 Ill.App.2d 417, 240 N.E.2d 188, 191-92 (1968); Lee v. GNLV Corp., 117 Nev. 291, 22 P.3d 209, 212 (2001); Restatement (Second) of Torts § 314 (1965); Keeton et al., supra, § 56, pp. 375-76. That is why the plaintiff in this case needs the abuse-notification statute to maintain this suit; she has no common law tort claim. (Needless to say, we have no authority to create good Samaritan liability under Illinois law.)

As we noted in Stockberger, "If A saw that B was about to be struck on the head by a flowerpot thrown from a tenth-story window, and A knew that B was unaware of the impending catastrophe and also knew that he could save B with a shout, yet he did nothing and as a result B was killed, still, A's inaction, though gratuitous (there was no risk...