Nelson by Wharton v. Missouri Div. of Family Services
| Decision Date | 16 May 1983 |
| Docket Number | No. 82-1898,82-1898 |
| Parties | Amy NELSON, By her next friend, Robert J. WHARTON; Frank Nelson, by his next friend, Robert J. Wharton; Mike Nelson, by his next friend, Robert J. Wharton; and James A. Nelson, Appellants, v. MISSOURI DIVISION OF FAMILY SERVICES, David R. Freeman, individually and as State Director; J. Joseph Lewis, individually and as director of the Jackson County Office; Anita Donaldson, individually and as an investigator for the Jackson County Office; Ertha Keatings, individually and as an investigator for the Jackson County Office; Dinah White, individually and as an investigator for the Jackson County Office, Appellees, Audrey Nelson; Theodore O. Gulley; John Doe, Number One; John Doe, Number Two; John Doe, Number Three. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John Ashcroft, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, Mo., for appellees.
John E. McKay, Kansas City, Mo., for appellants.
Before ARNOLD and BENNETT, * Circuit Judges, and HENLEY, Senior Circuit Judge.
Plaintiffs appeal the judgment of the district court 1 granting defendants'-appellees' motion for summary judgment. We affirm.
The complaint seeking damages in this diversity case alleges that appellees, various officials and employees of the Missouri Division of Family Services (DFS), failed to investigate adequately reports that the Nelson children were being sexually abused by their mother and certain men, and that as a result of defendants' negligence, the children continued to suffer abuse, ultimately leading to the death of eight-year-old Tammy Nelson. The plaintiffs are Tammy's surviving siblings and her natural father who at the time of the alleged sexual abuses was not living with the mother and children.
Pursuant to Mo.Ann.Stat. Sec. 210.145, DFS operates a "hotline" through which persons can report known or suspected instances of child abuse. Upon receiving a hotline report, DFS is required to conduct a "thorough investigation" within twenty-four hours. Id. DFS allegedly received several hotline calls concerning the Nelson children, but it appears that only two were investigated, one in November, 1978, and the second in May, 1979. The callers in both instances identified the Nelson children and gave information as to the nature of the alleged abuse and the names of witnesses. 2 Plaintiffs assert, however, that the investigators failed to conduct a thorough investigation as required by the statute. Both investigations basically consisted of a brief interview of Audrey Nelson and a brief interview of the children, possibly within hearing distance of Audrey. The children, as well as Audrey, denied the allegations of the callers. At least one witness testified that children often deny, especially in the presence of the abuser, that they are being abused. The investigators seem not to have interviewed the children individually or apart from their mother; nor did they interview possible witnesses or request physical examinations for the children.
The state defendants filed a motion for summary judgment on the grounds of immunity and failure to state a claim upon which relief can be granted. The district court did not address the issue of immunity but granted the motion on the ground that the defendants, as officials and employees of DFS, owed no duty to plaintiffs, a fundamental prerequisite to establishing negligence. 3 Dix v. Motor Market, Inc., 540 S.W.2d 927, 932 (Mo.App.1976), citing Vanacek v. St. Louis Public Service Co., 358 S.W.2d 808 (Mo.1962) (en banc). This conclusion was based primarily on Parker v. Sherman, 456 S.W.2d 577 (Mo.1970), in which the Missouri Supreme Court held that a public official is liable to an individual for failure to perform a statutory duty only if the statute creates a duty to the individual as opposed to a duty to the general public. The court in Parker concluded that the statutes prohibiting gambling and requiring the sheriff to enforce the law did not create a duty to the individual plaintiff who claimed that the sheriff's failure to enforce the gambling law caused damage to certain of plaintiff's investments.
Appellants attempt to distinguish Parker on the ground that the gambling statute in that case was a criminal statute intended to benefit the general public, whereas the civil statute in the present case is intended primarily to benefit a special class, abused children. See generally, Krause, Child Abuse and Neglect Reporting Legislation in Missouri, 42 Mo.L.Rev. 207 (1977). On this basis, appellants urge this court to conclude that the statute requiring DFS to conduct a thorough investigation within twenty-four hours of a hotline call creates a duty to the children who are reportedly abused.
Although we think that appellants' distinction between Parker and the present case is not without some merit, see Oleszczuk v. State, 124 Ariz....
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McLinn, Matter of
...judge sitting in that forum is entitled to substantial deference in absence of controlling state precedent.--Nelson By Wharton v. Missouri Div. of Family Services, 706 F.2d 276. C.A.Mo. 1983. Court of Appeals would defer to district court's interpretation of state law.--Glover v. Metropolit......
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