Mallette v. Children's Friend and Service

• Decision Date: 30 June 1995
• Docket Number: No. 94-96-M,94-96-M
• Citation: 661 A.2d 67
• Parties: Thomas D. MALLETTE, Jr., et al. v. CHILDREN'S FRIEND AND SERVICE. P.
• Court: Rhode Island Supreme Court

Page 67

661 A.2d 67

Thomas D. MALLETTE, Jr., et al. v. CHILDREN'S FRIEND AND SERVICE.

No. 94-96-M.P.

Supreme Court of Rhode Island.

June 30, 1995.

Stephen P. Sheehan, Wistow & Barylick, Providence, for plaintiff.

Anthony E. Angeli, Jr., DCYF, Mark P. Dolan, Rice, Dolan & Kershaw, Providence, for defendant.

OPINION

MURRAY, Justice.

This case comes before us on the petition of the defendant adoption agency Children's Friend and Service (CFS or the agency), for writ of certiorari. The agency contends that the trial justice erred in denying its motion to dismiss the plaintiffs' amended complaint. To the extent noted below, we affirm the trial justice.

This action arises out of the 1983 adoption of Christopher Mallette (Christopher) by the plaintiffs Thomas D. Mallette, Jr., and Deborah Mallette (the Mallettes). In 1981 the Mallettes sought to adopt a child through CFS. Shortly thereafter, in 1982, the Mallettes were informed by CFS that a child was available whom they might be interested in adopting. According to the Mallettes' amended complaint, at this time employees of CFS negligently misrepresented and omitted material information concerning Christopher's medical and family history. ¹ Christopher, now thirteen years old, is mentally retarded and severely disturbed.

In an affidavit submitted in opposition to CFS's motion to dismiss, Deborah Mallette asserts that beginning in July 1991 she and her husband first began to learn the true state of the medical and genetic history of Christopher's biological family: Christopher's biological mother had been diagnosed as possessing macrocephaly, pseudoepicanthal folds, a high-arched palate, tachycardia, small clinodactyly of the fifth fingers, tremors of the hands, and poor coordination. It is alleged that all these conditions were known by CFS prior to Christopher's adoption.

The affidavit also states that prior to the adoption, the Mallettes had been informed by CFS that Christopher's biological mother suffered from learning disabilities caused solely by head trauma as a young child. The Mallettes allege, however, that at the time of the adoption CFS possessed a document entitled "Medical History For Christopher Mallette" indicating that Christopher's biological mother had been diagnosed as mildly to moderately retarded with only a "possibility" that such retardation resulted from head trauma. The document candidly admitted that no medical documentation existed to support such a possible conclusion. The Mallettes also contend that the same document described Christopher's biological maternal grandmother as "intellectually limited." According to the Mallettes, CFS never disclosed this information prior to Christopher's adoption.

Following these revelations, the Mallettes instituted this action against CFS on December 3, 1991. ² Their amended complaint specifically alleges that CFS was negligent in failing to provide information and records regarding Christopher's background, including his family and medical history; in misrepresenting information concerning Christopher's medical and family history; and in failing to inform them of Christopher's probable need for future treatment and care. As a consequence of the agency's alleged negligence, the Mallettes aver that they suffer great mental anguish and emotional distress, have incurred enormous expenses for medical and psychiatric treatment of Christopher, and have lost opportunities for proper medical and psychiatric treatment for Christopher.

The agency moved to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Superior Court Rules of Civil Procedure on the ground that it failed to state a claim upon which relief could be granted. On February 1, 1994, the trial justice denied the motion without much comment. The agency immediately filed a petition for writ of certiorari with this court, which we granted on April 29, 1994. The sole issue for our review is whether the Mallettes have stated a cause of action under Rhode Island law. ³

Before reaching the merits of the instant case, we note that the trial justice apparently relied on matters outside the pleadings in rendering his decision, thereby converting the motion to dismiss into one for summary judgment. See Ouimette v. Moran, 541 A.2d 855 (R.I.1988) (if trial justice considers matters outside the scope of the complaint in reviewing a Rule 12(b)(6) motion, the motion is converted into one for summary judgment). As such our review of the trial justice's decision will proceed under well-settled principles governing summary judgment.

A motion for summary judgment is a harsh remedy and must be applied cautiously. Golderese v. Suburban Land Co., 590 A.2d 395 (R.I.1991). In ruling on a motion for summary judgment, the trial justice considers all pleadings, affidavits, and other appropriate evidence in the light most favorable to the opposing party. Textron, Inc. v. Liberty Mutual Insurance Co., 639 A.2d 1358 (R.I.1994). The entry of summary judgment is appropriate if no material facts exist, and the moving party is entitled to judgment as a matter of law. DiQuinzio v. Panciera Lease Co., 612 A.2d 40 (R.I.1992). With these principles in mind, we turn to the instant case.

American jurisprudence has begun only recently to recognize causes of action for "wrongful adoption." See Burr v. Board of County Commissioners of Stark County, 23 Ohio St.3d 69, 491 N.E.2d 1101 (1986) (recognizing a claim for intentional misrepresentation in the adoption context). Unfortunately, courts and commentators have injected some confusion into this area by employing the term "tort of wrongful adoption" to encompass a variety of distinct common law causes of action. See, e.g., Juman v. Louise Wise Services, 211 A.D.2d 446, 620 N.Y.S.2d 371 (1995) (fraud and misrepresentation); Note, When Love Is Not Enough: Toward a Unified Wrongful Adoption Tort, 105 Harv. L.Rev. 1761, 1762 (1992) (negligent or intentional misrepresentation). Recently courts have begun to discard the term, realizing that the question of whether to recognize causes of action for "wrongful adoption" simply requires the straightforward application and extension of well-recognized common-law actions, such as negligence and fraud, to the adoption context and not the creation of new torts. See Roe v. Catholic Charities of the Diocese of Springfield, 225 Ill.App.3d 519, 588 N.E.2d 354, 357, appeal denied, 146 Ill.2d 651, 602 N.E.2d 475 (1992) ("[r]ecognition of this cause of action is not a dramatic, radical departure from the well-established common law * * * [i]t is rather an extension of the doctrine of the common law fraud"); Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882, 886 (1994) ("causes of action for wrongful adoption are no more than an extension of common law principles to the adoption setting"). With the common law as guidance, we now turn to the instant case.

Although the Mallettes' amended complaint suggests a number of different causes of action sounding in negligence, their fundamental claim appears grounded in the common-law tort of negligent misrepresentation. We note that in order to establish a prima facie case of negligent misrepresentation, the plaintiff must establish the following elements:

"(1) a misrepresentation of a material fact; (2) the representor must either know of the misrepresentation, must make the misrepresentation without knowledge as to its truth or falsity or must make the representation under circumstances in which he ought to have known of its falsity; (3) the representor must intend the representation to induce another to act on it; and (4) injury must result to the party acting in justifiable reliance on the misrepresentation." Gibbs, 538 Pa. at 193, 647 A.2d at 890; see also, Wallerstein v. Hospital Corp. of America, 573 So.2d 9, 10 (Fla.Dist.Ct.App.1990); see generally Halpert v. Rosenthal, 107 R.I. 406, 413-15, 267 A.2d 730, 734-35 (1970).

With these elements in mind, the narrow issue confronting this court, which is one of first impression, becomes whether to recognize the tort of negligent misrepresentation in the adoption context.

The agency contends that this court should refuse to extend such a cause of action to the adoption context because the agency owed no duty of care to the Mallettes to support any claims of negligence and that Rhode Island public policy militates against such an extension. We disagree.

It is well established in Rhode Island that a defendant cannot be held liable under a negligence theory unless the defendant owes a duty of care to the plaintiff and that duty has been breached. Hydro-Manufacturing, Inc. v. Kayser-Roth Corp., 640 A.2d 950 (R.I.1994); Ryan v. State Department of Transportation, 420 A.2d 841 (R.I.1980). Whether such a duty exists in a particular factual situation is a question of law for the court's determination. Ferreira v. Strack, 636 A.2d 682 (R.I.1994). In determining whether such a duty exists, the court considers "all relevant factors, including the relationship of the parties, the scope and burden of the obligation to be imposed upon the defendant, public policy considerations and notions of fairness." Kenney Manufacturing Co. v. Starkweather & Shepley, Inc., 643 A.2d 203, 206 (R.I.1994). With these principles in mind, we turn to the instant case to address CFS's first contention that it owed no duty to the Mallettes.

The agency correctly states that Rhode Island is one of only a handful of states that lacks a statute requiring adoption agencies to disclose relevant information to potential adopting parents. See Paula K. Bebensee, In the Best Interests of Children and Adoptive Parents: The Need for Disclosure, 78 Iowa L.Rev. 397, 404 n. 65 (1993) (noting that Rhode Island, Nevada, and Alaska do not require agencies to collect or to disclose information on an adoptee's medical or social background; Minnesota and Kansas require the collection of such information but fail to mandate explicitly its release to...