Department of Health and Rehabilitative Services v. Yamuni

• Decision Date: 02 June 1988
• Docket Number: No. 69602,69602
• Parties: 13 Fla. L. Weekly 354 DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. Stella YAMUNI, as adoptive mother, next friend and guardian of Sean Yamuni a minor, Respondent.
• Court: Florida Supreme Court

Page 258

529 So.2d 258

13 Fla. L. Weekly 354

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Petitioner, v. Stella YAMUNI, as adoptive mother, next friend and guardian of Sean Yamuni a minor, Respondent.

No. 69602.

Supreme Court of Florida.

June 2, 1988.

Rehearing Denied Aug. 26, 1988.

Joan S. Buckley and Douglas H. Stein of Walton, Lantaff, Schroeder & Carson, Miami, for petitioner.

Ralph O. Anderson of Daniels & Hicks, P.A., Miami, and George, Hartz & Lundeen, P.A., Miami, for respondent.

SHAW, Justice.

We review State of Florida, Department of Health and Rehabilitative Services v. Yamuni, 498 So.2d 441 (Fla. 3d DCA 1986), to answer a certified question of great public importance.

Has the State of Florida, pursuant to section 768.28, Florida Statutes (1983), waived sovereign immunity for liability arising out of the negligent conduct of an HRS case worker?

Id. at 444. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

Briefly stated, the facts of this case are that during the period December 1979 to August 1980, the Department of Health and Rehabilitative Services (HRS) received numerous reports that an infant, Sean Yamuni, was being physically abused. The department investigated, but the infant was allowed to remain in the custody of its natural mother and HRS failed to place the infant under protective supervision as it was directed to do by court order in January 1980. In August 1980, Sean was admitted to a hospital with severe burns and two fractures to his arm. The arm was medically amputated the following day. The jury found HRS guilty of negligence and returned a verdict of 3.1 million dollars which was reduced to $50,000 pursuant to section 768.28(5), Florida Statutes (1979). The district court affirmed, holding that HRS had a statutory and common-law duty to Sean and that there was no sovereign immunity shielding the HRS case-worker's operational level activities. We agree and approve the decision below.

The HRS presents two issues for our consideration. The threshold issue is whether the actions of its caseworkers were planning level activities which were sovereignly immune under Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010 (Fla.1979). In Commercial Carrier, we recognized the broad scope of the legislative waiver of sovereign immunity in section 768.28, Florida Statutes (1975), but nevertheless carved out an exception to the waiver not contained in the statute for "policy-making, planning or judgmental government functions." Id. at 1020. We recognized that identification of these immune functions would be difficult and adopted a case-by-case method of identifying these functions based on Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440 (1965), and Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968). We adopted a test from Evangelical consisting of four preliminary questions:

(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved. (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision.

Under Commercial Carrier, if these preliminary questions can be clearly and unequivocally answered yes, then the challenged act is probably policy-making, planning, or judgmental activity which is immune from tort liability. If the answer to any of the questions is no, the activity is probably operational level which is not immune. In either case, further examination is required using the Johnson analysis.

Applying the Evangelical questions to the case at hand, only number four can be clearly and unequivocally answered yes. ¹ As the district court held, these negative answers indicate that the caseworker actions do not rise to the level of basic policy making which is a prerequisite to immunity under Commercial Carrier. The HRS nevertheless argues that the caseworkers were exercising discretion in handling the reported child abuse and that their actions were planning level activity under Commercial Carrier. This argument is grounded on the definitional approach to "discretion" which we, and the Johnson court, rejected because "all governmental functions, no matter how seemingly ministerial, can be characterized as embracing the exercise of some discretion in the manner of their performance." 371 So.2d at 1021. We have no doubt that the HRS caseworkers exercised discretion in the dictionary or English sense of the word, but discretion in the Commercial Carrier sense refers to discretion at the policy making or planning level. We agree with the district court that the actions of caseworkers investigating and responding to reports of child abuse simply cannot be elevated to the level of policy-making or planning. To accept the HRS argument would require that we recede from Commercial Carrier by negating any meaningful distinction between operational and planning level activity. We firmly rejected this argument in Commercial Carrier and decline to recede therefrom. We hold that the caseworker activities were operational level for which there is a waiver of immunity. We answer the certified question with a qualified no, noting that we adopted a case-by-case approach in Commercial Carrier and it is at least theoretically conceivable, although pragmatically unlikely, that some action of a caseworker might rise to the level of basic policy making. We acknowledged in Commercial Carrier and acknowledge again, that the case-by-case approach is difficult to apply. It requires minute examination of the alleged negligent actions of the government unit to determine if they are operational or planning level as each case comes to court.

The HRS also argues that its activities here were exclusively governmental and are not performed by private persons. Therefore, HRS reasons that there has been no waiver of sovereign immunity because section 768.28(1) only waives immunity "under circumstances in which the state or such agency or subdivision, if a private person, would be liable." (Emphasis supplied.) This reasoning was presented and rejected in Commercial Carrier because to accept it "would be to essentially emasculate the [waiver of immunity] and the salutory purpose it was intended to serve." 371 So.2d at 1017. The HRS argues that we used language in Reddish v. Smith, 468 So.2d 929, 932 (Fla.1985), which indicates the we now accept this reasoning. We agree that the language in Reddish is contrary to Commercial Carrier. We note, however, that this argument was not in fact presented by the parties in Reddish and that we gave no indication we were receding from the contrary Commercial Carrier holding. Moreover, Reddish was decided on the basis of the Commercial Carrier criteria and our contradictory statements were dicta. We recede from any suggestion in Reddish that there has been no waiver of immunity for activities performed only by the government and not private persons. The only government activities for which there is no waiver of immunity are basic policy making decisions at the planning level. Commercial Carrier. ²

The HRS next argues that it has no legal duty to protect children from abuse and, thus, as a matter of law, cannot be held liable for negligence in failing to prevent the injuries to the infant Sean. In support, HRS offers a number of points. First, it argues, HRS was exercising the police power in enforcing the law and protecting the public safety, which activity falls within category II of Trianon Park Condominium Association v. City of Hialeah, 468 So.2d 912, 919 (Fla.1985), and for which there is immunity and no duty of care. This argument is apparently grounded on the view that HRS's primary role in child abuse cases is to identify child abusers for prosecution much as a police department would do. We will have more to say on the HRS role but, for now, we agree with the district court below that the HRS child abuse role is to provide professional, educational, and general services for the health and welfare of citizens. These activities fall within category IV of Trianon for which there is a waiver of immunity and a duty of care. Moreover, the categories set out in Trianon offer only a rough guide to the type of activities which are either immune or not immune. The test for determining immunity, and for determining which category the activity falls into, is still Commercial Carrier's operational versus planning dichotomy. We have determined above that the activities here were operational and nothing in Trianon changes that result.

The HRS also argues that it has no statutory duty under chapter 827, Florida Statutes (1979), to prevent further injuries to abused children after reports of such abuse are received and, further, that section 827.07(7) statutorily immunizes HRS from liability. As we indicated above, it seems clear that HRS is being excessively modest concerning the importance of its role in preventing child abuse. The HRS is not merely a police agency and its relationship with an abused child is far more than that of a police agency to the victim of a crime. Chapter 827 designates children as a protected class of persons and requires that all other persons with knowledge or suspicion of child abuse report such abuse to HRS. Failure to so report is a criminal offense under section 827.07(18). The HRS is assigned the responsibility or duty to provide "ongoing protective ... services to, and on behalf of, children in need of protection to...