LaShay v. Department of Social and Rehabilitation Services

• Citation: 625 A.2d 224,160 Vt. 60
• Decision Date: 15 January 1993
• Docket Number: No. 92-118,92-118
• Parties: David LaSHAY v. DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES; William Young, Commissioner of Social and Rehabilitation Services; P. Lawrence Belove and Ricky Lee Rice.
• Court: United States State Supreme Court of Vermont

Page 224

625 A.2d 224

160 Vt. 60

David LaSHAY v. DEPARTMENT OF SOCIAL AND REHABILITATION SERVICES; William Young, Commissioner of Social and Rehabilitation Services; P. Lawrence Belove and Ricky Lee Rice.

No. 92-118.

Supreme Court of Vermont.

Jan. 15, 1993.

Motion for Reargument Denied Feb. 24, 1993.

William M. McCarty and Bruce Hesselbach of McCarty Law Offices, Brattleboro, for plaintiff-appellant.

John A. Serafino of Ryan Smith & Carbine, Ltd., Rutland, for defendants-appellees.

Before ALLEN, C.J., GIBSON, DOOLEY and JOHNSON, JJ., and BRYAN, Supr.J., Specially Assigned.

GIBSON, Justice.

Plaintiff David LaShay appeals from a summary judgment order entered in favor of defendants Social and Rehabilitation Services (SRS); William Young, Commissioner of SRS; and P. Lawrence Belove, a former SRS employee. Plaintiff claims that the court erred in concluding that defendants are immune from plaintiff's suit, which alleges that he was sexually abused by his foster father after SRS received warnings concerning the placement. We affirm the decision with regard to defendant Young but reverse with regard to defendants Belove and SRS.

In reviewing a decision to grant summary judgment, we regard all allegations made in opposition to the motion as true if supported by affidavits or other evidentiary material. Messier v. Metropolitan Life Ins. Co., 154 Vt. 406, 409, 578 A.2d 98, 99-100 (1990). As a result, we summarize the facts as advanced by plaintiff.

On February 1, 1985, plaintiff was in the custody of the Commissioner of SRS ¹ who placed him in the foster home of defendants Ricky Lee Rice and Donna Rice. The Rices had submitted an application to SRS for a foster home license that was pending at the time of placement. Plaintiff was fourteen years old.

On about February 11, 1985, upon learning that plaintiff had been placed with the Rices, William Wait, plaintiff's former foster parent, telephoned SRS employees repeatedly to warn them that plaintiff should be removed from the Rices' home immediately. Mr. Wait knew that defendant Rice had asked another foster child in Mr. Wait's care to engage in sexual activity with him. Mr. Wait spoke with defendant Belove, the case worker supervisor, among others at SRS. Plaintiff was not removed from the Rice household, nor did SRS investigate the allegations.

During the latter part of February and March 1985, defendant Rice sexually abused plaintiff on three occasions. Plaintiff was removed from the Rice household on April 19, 1985, after SRS received complaints about the abuse via plaintiff's natural mother.

Plaintiff filed a complaint against defendants Rice, Young, Belove and SRS in May 1989, alleging three counts of assault; negligent placement, supervision and investigation; breach of statutory duties; and deprivation of liberty under Chapter I, Article 1 of the Vermont Constitution. ² On June 28, 1991, defendants Young, Belove and SRS moved for summary judgment on the ground that each was immune from suit for the actions alleged. ³ The superior court granted the motion, holding that (1) defendants Young and Belove are shielded from suit under the doctrine of official immunity, and (2) SRS is shielded from suit under the doctrine of sovereign immunity. Plaintiff appeals this decision.

We first address a procedural issue raised by defendants. They claim this Court has no jurisdiction to consider this appeal until a final judgment is entered regarding the claims against defendant Rice. Defendants maintain that the Court cannot consider an appeal in the absence of a final order unless the collateral order exception to the finality rule applies. See V.R.A.P. 5.1. We do not address defendants' argument because the trial court has entered final judgment regarding defendants Young, Belove and SRS.

Under V.R.A.P. 4, when the notice of appeal is filed prior to entry of final judgment but after a decision has been announced, the notice is treated as filed on the day that final judgment is entered. In this case, the decision was announced on January 28, 1992, in the court's summary judgment order. Plaintiff filed a notice of appeal on February 26, 1992, and the court entered final judgment pursuant to V.R.C.P. 54(b) on September 23, 1992. Consequently, we treat the notice of appeal as though filed on September 23. See V.R.A.P. 4.

I.

We next consider the issues of immunity. The first issue is whether defendants Young and Belove are entitled to immunity from suit based on the facts alleged. Under some circumstances, official immunity shields state officials and employees from lawsuits based on their activities. Levinsky v. Diamond, 151 Vt. 178, 183, 559 A.2d 1073, 1077 (1989), overruled on other grounds, Muzzy v. State, 155 Vt. 279, 583 A.2d 82 (1990). We have recognized two degrees of official immunity: absolute immunity and qualified immunity. Id., 151 Vt. at 184-85, 559 A.2d at 1078. Absolute immunity applies to judges, legislators and the state's highest executive officers when they are acting within their respective authorities. Id. at 185, 559 A.2d at 1078. Because defendant Young is the highest executive officer at SRS, he is entitled to absolute immunity, if he was acting within the scope of his authority. See Curran v. Marcille, 152 Vt. 247, 249, 565 A.2d 1362, 1363 (1989) (Commissioners of Department of Motor Vehicles and Department of Corrections entitled to absolute immunity); Levinsky, 151 Vt. at 185, 559 A.2d at 1079 (Commissioner of Department of Social Welfare entitled to absolute immunity).

The scope of authority of the Commissioner of SRS is defined, in part, by 3 V.S.A. § 3052, which provides:

Mandatory duties

(a) The commissioner shall determine the policies of the department, and may exercise the powers and shall perform the duties required for its effective administration.

(b) In addition to other duties imposed by law, the commissioner shall:

(1) Administer the laws assigned to the department.

(2) Coordinate and integrate the work of the divisions.

(3) Supervise and control all staff functions.

Plaintiff alleges that defendant Young (1) violated the Foster Home Regulations by placing and maintaining plaintiff in an unlicensed home and (2) failed to train and supervise employees adequately regarding the reporting and investigating of allegations of child abuse. All of these actions fall within the scope of the Commissioner's authority to "[a]dminister the laws assigned to the department" and to "[s]upervise and control all staff functions," 3 V.S.A. § 3052; therefore, defendant Young is entitled to absolute immunity.

Unlike defendant Young, defendant Belove is not among the state's highest executive officers. Qualified immunity, however, protects lower-level officers, employees and agents "(1) acting during their employment and acting, or reasonably believing they are acting, within the scope of their authority; (2) acting in good faith; and (3) performing discretionary, as opposed to ministerial acts." Levinsky, 151 Vt. at 185, 559 A.2d at 1078. Plaintiff concedes that the alleged conduct of defendant Belove was in the course of his employment. He disputes, however, whether defendant Belove met the other two elements.

"Good faith exists where an official's acts did not violate clearly established rights of which the official reasonably should have known." Murray v. White, 155 Vt. 621, 630, 587 A.2d 975, 980 (1991). In Murray, we held that the defendant SRS case worker was immune from suit for conducting an allegedly inadequate and one-sided investigation following a report of child sexual abuse. Id. at 632, 587 A.2d at 981. The plaintiff in that case argued that the investigation had not been carried out in good faith, and that, therefore, the defendant was not entitled to immunity. There, however, the defendant had complied with 33 V.S.A. § 4915 by conducting an investigation immediately after receiving the report, and the investigation was in conformance with statutory guidelines and the SRS Policy Manual. Id. at 631-32, 587 A.2d at 981. We concluded that because the defendant's investigation was in compliance with statutory requirements, the case worker should not reasonably have known that she was obligated to investigate further. Therefore, we held that her investigation was undertaken in good faith. Id. at 632, 587 A.2d at 981.

Under the third element, a discretionary duty is one requiring judgment in performance. Libercent v. Aldrich, 149 Vt. 76, 81, 539 A.2d 981, 984 (1987). A ministerial duty is a definite duty imposed by law under the conditions shown to exist. Id. In Libercent, we held that the duty to maintain and repair a state motor vehicle was a ministerial duty where the defendants had an absolute duty to the plaintiff to perform periodic inspections to ensure roadworthiness and plaintiff had made several reports concerning the condition of the vehicle. Id. at 82, 539 A.2d at 984. Thus, we concluded that "to the extent the defendants' acts or omissions were breaches of their ministerial duties, they are not immune from tort liability." Id.

In the instant case, plaintiff argues that, after receiving the warning on February 11, 1985, concerning plaintiff's placement with defendant Rice, defendant Belove had a duty to report to the Commissioner that plaintiff was threatened with a substantial risk of physical or mental injury. See 33 V.S.A. §§ 4912-4914. According to plaintiff, Mr. Wait called SRS repeatedly on or about February 11, 1985, to urge SRS employees to remove plaintiff from the home of defendant Rice. Mr. Wait spoke with defendant Belove during at least one of these calls. Plaintiff maintains that defendant Belove reasonably should have known that he was required to report to the Commissioner, and, thus, the failure to report constitutes a failure to act in good faith. Moreover, plaintiff argues that because reporting is mandatory, the act is ministerial, not discretionary. Plaintiff's argument regarding...