Little v. Utah State Div. of Family Services

• Decision Date: 01 July 1983
• Docket Number: No. 18113,18113
• Citation: 667 P.2d 49
• Parties: Jonathan LITTLE and Hanna Little, Plaintiffs and Respondents, v. UTAH STATE DIVISION OF FAMILY SERVICES, Defendant and Appellant.
• Court: Utah Supreme Court

Page 49

667 P.2d 49

Jonathan LITTLE and Hanna Little, Plaintiffs and Respondents, v. UTAH STATE DIVISION OF FAMILY SERVICES, Defendant and Appellant.

No. 18113.

Supreme Court of Utah.

July 1, 1983.

David L. Wilkinson, Atty. Gen., Sharon Peacock, Craig L. Barlow, Asst. Attys. Gen., Salt Lake City, for defendant and appellant.

David E. Littlefield of Littlefield, Cook & Peterson, Salt Lake City, for plaintiffs and respondents.

HOWE, Justice:

The State appeals from a judgment in favor of the plaintiffs awarding them damages for the wrongful death of their infant daughter.

On March 16, 1977, a warrant and order of temporary placement directed to Jennifer Little, 2 1/2 year old daughter of plaintiffs, was issued by the juvenile court as the result of a petition filed by the Utah Division of Family Services (hereinafter Family Services or State). The juvenile court made the following findings:

Said child is dependent through no fault of the parents in that (1) said minor has not developed properly and manifests autistic behavior; (2) said minor is in need of specialized assistance which the parents are emotionally unable to provide.

Family Services obtained custody and guardianship of Jennifer and placed her Jennifer died on June 4, 1977 of a massive hemorrhage of the right half of the brain. A post mortem examination revealed symptoms resembling the battered child syndrome. The exterior autopsy disclosed that her body was covered with bruises suffered at intervals. An interior examination revealed areas of hemorrhage scattered from the forehead to the parietal region, again of varying colorations, ergo of different ages. The medical expert concluded that the aggregate trauma sustained by Jennifer over an extended period of time was a significant contributing factor to the child's death. He was unable to attribute death to a single incident, as he could not ignore the fact "that there were various areas of injury on the same area of the body, and various stages of healing and various intensities." A police report made on the day of Jennifer's death divulged that the child was left for several hours with another foster child, a mildly retarded boy of 17 years of age, who apparently slapped her in the face when she fussed about going to the bathroom. Testimony revealed that the boy was a trusted babysitter with neighbors and had no history of aggressive behavior. No charges were ever preferred against him.

with therapeutic foster parents for handicapped children and children with special problems. Arrangements were made for medical and psychological treatment to begin at some future date as openings became available. Shortly after placement, the foster mother noticed that Jennifer would periodically bang her head against the floor, furniture and walls and pull out hair from her scalp. She notified the Family Services case worker of this behavior and attempted to shield Jennifer from injury by holding her until she stopped and by keeping her away from sharp objects as much as she could. She was told by the case worker that Jennifer definitely had problems but was never given any explanation of her autism nor instructions on remedying her behavior. No medication was prescribed and no physical shield was provided to protect the child against injury. Jennifer manifested facial bruises which were brought to the attention of the case worker by both her foster mother and Mrs. Little, her mother. Mrs. Little was told that it was natural for children to bruise. The Orientation To Therapeutic Child Care, a workbook for child care parents distributed by Family Services to the foster parents, contained a short paragraph on autism but made no reference to head banging and other acts of self-mutilation. Family Services expected the foster parents to monitor and report unusual behavior, but provided no specific instructions.

Plaintiffs filed suit against Family Services alleging its negligent conduct culminated in the death of their daughter. The lower court found that Family Services had owed Jennifer a duty of protection, that that duty had been breached, and that her death was proximately caused by the negligent conduct of Family Services. Judgment was entered in favor of the Littles for $20,000 damages plus funeral expenses and costs.

The State bases its claim for reversal of the judgment on (1) the Utah Governmental Immunity Act under the two alternate theories that Family Services was immune from suit for injuries which resulted (a) from its exercise of a governmental function, or (b) from its performance of, or its failure to perform, a discretionary function; (2) erroneously admitted testimony of plaintiffs' expert witness; and (3) an erroneous finding that Family Services was negligent, and that negligence was the proximate cause of the death of Jennifer Little. We address those issues in their order.

GOVERNMENTAL IMMUNITY

Under the Utah Governmental Immunity Act, U.C.A., 1953, § 63-30-1, et seq.:

[e]xcept as may be otherwise provided in this act, all governmental entities are immune from suit for any injury which results from the exercise of a governmental function, governmentally-owned hospital, nursing home, or other governmental health care facility, and from an approved medical, nursing, or other professional The plaintiffs and the State are in sharp disagreement whether Family Services' Foster Care Program is a governmental function. It is unnecessary for us to here decide that question. For the purposes of this case we will assume that it is a governmental function and proceed to determine whether that immunity has been waived by the Act. Section 63-30-10 provides:

health care clinical training program conducted in either public or private facilities.

Immunity from suit of all governmental entities is waived for injury proximately caused by a negligent act or omission of an employee committed within the scope of his employment except if the injury:

(1) arises out of the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused, or

* * *

* * *

The State contends that the death of Jennifer arose out of its failure to perform a discretionary function and that its immunity has therefore not been waived. We cannot agree.

Utah's exceptions to waiver of governmental immunity closely parallel those enumerated under 28 U.S.C., § 2680(a) of the Federal Tort Claims Act. This Court has followed the lead of cases interpreting that act. Frank v. State, Utah, 613 P.2d 517 (1980). Beginning with the two root cases of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) and Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the lines in federal cases have been consistently drawn between those functions ascribable to the policy making level and those to the operational level. State law has followed along analogous lines. Where the responsibility for basic policy decisions has been committed to one of the branches of our tri-partite system of government, the courts have refrained from sitting in judgment of the propriety of those decisions. Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968). If the State posits immunity on such an exercise of discretion, it must make a showing that a conscious balancing of risks and advantages took place. Id. 73 Cal.Rptr. at 249, n. 8, 447 P.2d at 361, n. 8. To be purely discretionary, an act by the state must be affirmed under 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?

Evangelical United Brethren Church of Adna v. State, 67 Wash.2d 246, 407 P.2d 440 (1965).

The acts complained of here are the State's failure to properly evaluate the home into which Jennifer was to be placed, failure to properly supervise her placement, and failure to protect her from harm, when the State knew or should have known that such harm was likely. Assuming that the decision to place Jennifer in a foster home was a discretionary one, once that decision was made and the placement occurred, the question was no longer whether the child was to receive foster care but whether due care was exercised under a duty assumed. Where a breach of that duty can be shown, the government is held to the same standard as private individuals and cannot cloak itself with the mantle of discretion. There is ample precedent for that requirement in our forum. Frank v. State, supra; Bigelow v. Ingersoll, Utah, 618 P.2d 50 (1980); Andrus v. State, Utah, 541 P.2d 1117 (1975); Carroll v. State Road Commission, 27 Utah 2d 384, 496 P.2d 888 (1972).

Negligence under the Federal Tort Claims Act has been consistently held actionable where the conduct involved a nondiscretionary duty to perform a professional function unrelated to policy decisions. See Payton v. United States, 679 F.2d 475 (5th Cir.1982), decision of attorney general to place an insane prisoner in a mental institution and decision of parole board to release prisoner on parole are discretionary functions; not so, the failure of the prison medical board to examine the allegedly insane prisoner. Rise v. United States, 630 F.2d 1068 (5th Cir.1980), Army's decision to provide medical care for dependents is discretionary; not so, the admission of the patient...