Marks v. Tenbrunsel

• Decision Date: 22 April 2005
• Docket Number: 1031515.
• Citation: 910 So.2d 1255
• Parties: David Kenneth MARKS v. Dr. Thomas W. TENBRUNSEL et al.
• Court: Alabama Supreme Court

910 So.2d 1255

David Kenneth MARKS v. Dr. Thomas W. TENBRUNSEL et al.

1031515.

Supreme Court of Alabama.

April 22, 2005.

COPYRIGHT MATERIAL OMITTED

David K. Marks, pro se.

Robert E. Parsons and Dorothy A. Powell of Parsons, Lee & Juliano, P.C., Birmingham; and John J. Callahan, Jr., of Richardson Callahan, LLP, Huntsville, for appellees.

LYONS, Justice.

David Kenneth Marks sued Dr. Thomas W. Tenbrunsel, Dr. Lois H. Pope, and Alabama Psychological Services Center, LLC. The defendants filed a motion for a Rule 12(b)(6), Ala. R. Civ. P., dismissal of the case for failure to state a claim, which the trial court granted. Marks appeals; we affirm.

I. Facts and Procedural History

Marks contacted Alabama Psychological Services Center, LLC, to obtain psychological treatment. Marks met with Dr. Thomas W. Tenbrunsel, a psychologist employed by Alabama Psychological Services, at its offices. According to Marks, Dr. Tenbrunsel assured him that anything Marks disclosed during their meeting would remain confidential. Marks then admitted to fondling the genitals of two females under the age of 12. Marks claims that "[a]fter consulting with a colleague, Dr. Tenbrunsel announced to Marks that he would not honor [the confidentiality agreement]." (Marks's brief at xvi.) Marks alleges in his complaint that Dr. Lois H. Pope was the colleague with whom Dr. Tenbrunsel consulted. Marks further alleges that Dr. Tenbrunsel informed him that "a report [of the suspected child abuse] would be made to Child Protective Services at the Madison County Department of Human Resources."

Marks sued Dr. Tenbrunsel, Dr. Pope, and Alabama Psychological Services, alleging malpractice, misrepresentation of material facts, fraud, and fraudulent deceit. According to Marks, the defendants' actions caused Marks to be prosecuted for his admitted sexual misconduct. He also alleged other damage, including mental anguish, health problems, and monetary loss.

Dr. Tenbrunsel, Dr. Pope, and Alabama Psychological Services moved for a judgment of dismissal pursuant to Rule 12(b)(6), Ala. R. Civ. P., on the basis that Marks had failed to state a claim upon which relief could be granted. The trial court granted that motion, and this appeal followed.

II. Standard of Review

"On appeal, a dismissal is not entitled to a presumption of correctness. Jones v. Lee County Commission, 394 So.2d 928, 930 (Ala.1981); Allen v. Johnny Baker Hauling, Inc., 545 So.2d 771, 772 (Ala.Civ.App.1989). The appropriate standard of review under Rule 12(b)(6) is whether, when the allegations of the complaint are viewed most strongly in the pleader's favor, it appears that the pleader could prove any set of circumstances that would entitle [him] to relief. Raley v. Citibanc of Alabama/Andalusia, 474 So.2d 640, 641 (Ala.1985); Hill v. Falletta, 589 So.2d 746 (Ala.Civ.App.1991). In making this determination, this Court does not consider whether the plaintiff will ultimately prevail, but only whether [he] may possibly prevail. Fontenot v. Bramlett, 470 So.2d 669, 671 (Ala.1985); Rice v. United Ins. Co. of America, 465 So.2d 1100, 1101 (Ala.1984). We note that a Rule 12(b)(6) dismissal is proper only when it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle the plaintiff to relief. Garrett v. Hadden, 495 So.2d 616, 617 (Ala.1986); Hill v. Kraft, Inc., 496 So.2d 768, 769 (Ala.1986)."

Nance v. Matthews, 622 So.2d 297, 299 (Ala.1993).

III. Analysis

A. Statutory Immunity

The defendants argue that they are immune from civil liability arising from their reporting of suspected child abuse. Section 26-14-9, Ala.Code 1975, grants immunity to certain persons, firms, corporations, and officials who report child abuse to the appropriate authorities. Included in those granted immunity by that section are persons and entities that are required, pursuant to § 26-14-3, Ala.Code 1975, to report suspected child abuse. Section 26-14-3 states:

"(a) All hospitals, clinics, sanitariums, doctors, physicians, surgeons, medical examiners, coroners, dentists, osteopaths, optometrists, chiropractors, podiatrists, nurses, school teachers and officials, peace officers, law enforcement officials, pharmacists, social workers, day care workers or employees, mental health professionals, members of the clergy as defined in Rule 505 of the Alabama Rules of Evidence, or any other person called upon to render aid or medical assistance to any child, when the child is known or suspected to be a victim of child abuse or neglect, shall be required to report, or cause a report to be made of the same, orally, either by telephone or direct communication immediately, followed by a written report, to a duly constituted authority."

(Emphasis added.) Marks argues that the defendants in this case were not "called upon to render aid or medical assistance to any child" within the meaning of § 26-14-3 and therefore are not entitled to the immunity afforded by § 26-14-9.

Section 26-14-3, however, is not the only Code section that authorizes the reporting of suspected child abuse. Section 26-14-4, Ala.Code 1975, provides: "In addition to those persons, firms, corporations, and officials required by Section 26-14-3 to report child abuse and neglect, any person may make such a report if such person has reasonable cause to suspect that a child is being abused or neglected." (Emphasis added.) In the instant case, because Marks admitted the abuse to Dr. Tenbrunsel, the defendants had reasonable cause to suspect that a child was being abused. Therefore, while Dr. Tenbrunsel and Dr. Pope were not required by § 26-14-3 to report the abuse, they were permitted to do so under § 26-14-4.

In Hall v. Van's Photo, Inc., 595 So.2d 1368 (Ala.1992), a case ignored by Marks, the plaintiffs sued a photography shop after its vice president notified the FBI that the plaintiffs had the photo shop develop nude pictures of their three-year-old son. This Court held that the photo shop had reasonable cause to make the report pursuant to the permissive reporting provision of § 26-14-4. The Court also applied § 26-14-9, as that section provided at the time Hall was decided, and affirmed the trial court's summary judgment for the photo shop based on the immunity provided by § 26-14-9. At the time Hall was decided, § 26-14-9 read:

"`Any person, firm, corporation or official participating in the making of a report or the removal of a child pursuant to this chapter, or participating in a judicial proceeding resulting therefrom, shall, in so doing, be immune from any liability, civil or criminal, that might otherwise be incurred or imposed.'"

595 So.2d at 1370. The plaintiffs in Hall argued that there existed a genuine issue of material fact as to whether the photo shop had promised to keep the photographs confidential. This Court rejected that argument and held that the photo shop was entitled to immunity under § 26-14-9. Therefore, even if we assume that Marks could prove a promise of confidentiality or some other similar understanding between him and Dr. Tenbrunsel, Marks would have no remedy in damages for a breach of that promise if the defendants are afforded immunity under § 26-14-9.

The Legislature amended § 26-14-9 in 1998. That section now provides:

"Any person, firm, corporation or official, including members of a multidisciplinary child protection team, quality assurance team, child death review team, or other authorized case review team or panel, by whatever designation, participating in the making of a good faith report in an investigation or case review authorized under this chapter [Chapter 14] or other law or department practice or in the removal of a child pursuant to this chapter, or participating in a judicial proceeding resulting therefrom, shall, in so doing, be immune from any liability, civil or criminal, that might otherwise be incurred or imposed."

(Emphasis added.) We conclude that the initial reporting of suspected child abuse to the appropriate authorities is part of the investigation contemplated by Chapter 14, Ala.Code 1975. Therefore, a person who makes such a report or causes such a report to be made is to be considered a person who "participat[es] in the making of a good faith report in an investigation or case review authorized under [Chapter 14]," and is therefore entitled to the benefit of the immunity granted by § 26-14-9 as amended. See Preamble to Act No. 98-371, Ala. Acts 1998 ("An Act, To amend Section[]... 26-14-9 ... to provide immunity from liability for investigations and actions to members of multidisciplinary child protection and other case review teams and for good faith reporting of suspected child abuse or neglect."). Construing § 26-14-9 to limit the availability of immunity from liability to only those persons reporting suspected child abuse after an investigation has already begun would deprive persons of the incentive to make an initial report of child abuse, thereby drastically frustrating the legislative purpose in enacting Chapter 14.¹ See Ex parte Meeks, 682 So.2d 423, 428 (Ala.1996) ("`A construction [of a statute] resulting in absurd consequences as well as unreasonableness will be avoided.'" (quoting Norman J. Singer, Sutherland Statutory Construction, § 45.11, p. 61 (5th ed. 1993))).

The immunity from liability provided by § 26-14-9 for reporting suspected child abuse applies only to one who makes such a report in good faith. The year before the Legislature adopted the "good faith" requirement, this Court, in Evans v. Waddell, 689 So.2d 23 (Ala.1997), construing the predecessor to § 26-14-9, held that defendants who had allegedly induced others to make false reports of child abuse were protected by absolute statutory immunity from liability for those reports. In the next session of the Legislature, § 26-14-9 was amended to add the requirement that the report of suspected child abuse be made in "good faith" as a prerequisite to immunity...