Nelson v. Freeman, 80-0874-CV-W-1.

• Decision Date: 07 April 1982
• Docket Number: No. 80-0874-CV-W-1.,80-0874-CV-W-1.
• Citation: 537 F. Supp. 602
• Parties: Amy NELSON, by her next friend, Robert J. Wharton, et al., Plaintiffs, v. David R. FREEMAN, et al., Defendants.
• Court: U.S. District Court — Western District of Missouri

537 F. Supp. 602

Amy NELSON, by her next friend, Robert J. Wharton, et al., Plaintiffs, v. David R. FREEMAN, et al., Defendants.

No. 80-0874-CV-W-1.

United States District Court, W. D. Missouri, W. D.

April 7, 1982.

John E. McKay, Benson & McKay, Kansas City, Mo., J. D. Williamson, Jr., Independence, Mo., for plaintiffs.

John Ashcroft, Atty. Gen., State of Mo., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, Mo., for State defendants.

MEMORANDUM AND ORDERS GRANTING MOTION FOR SUMMARY JUDGMENT IN FAVOR OF STATE DEFENDANTS

JOHN W. OLIVER, Senior District Judge.

Pending are (1) plaintiffs' motion for summary judgment and sanctions pursuant to Rule 37, Fed.R.Civ.P. and (2) defendants'¹ motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. Plaintiffs' motion will be denied and defendants' motion will be granted for reasons we now state.

I.

This case stems from the tragic incident of child abuse that caused the untimely death of eight year old Tammy Nelson. Plaintiffs are Amy, Frank and Mike Nelson, minor sister and brothers, respectively, of the deceased Tammy Nelson, proceeding by their next friend, Robert W. Wharton; and James A. Nelson, natural father of Tammy Nelson. Defendant Freeman is named in the complaint in his official capacity as State Director of the Missouri Division of Family Services (hereinafter referred to as D. F. S.); Lewis is named as Jackson County Director of D. F. S.; Donaldson² is named as supervisor of defendants Keatings and White; Keatings and White are named as employees of D. F. S. whose duties include investigation of "hotline" calls wherein child abuse and mistreatment of Missouri children are reported.

The complaint alleges that:

10. On or about January 1, 1978 and continuing thereafter at 1935 Belleview, Kansas City, Jackson County, Missouri, defendant Audrey Nelson performed various acts of perversion and sex with several men including defendant Theodore Gulley, John Doe One, John Doe Two, and John Doe Three.

11. Tammy Nelson, Amy Nelson, Frank Nelson, and Mike Nelson were required to watch and/or participate in said acts of perversion and sex with the aforenamed person or persons, all of which constituted child abuse and mistreatment of said children.

12. On or about January 1, 1978 and continuing thereafter, several concerned citizens reported said child abuse and mistreatment of said children to D. F. S. pursuant to the hotline call system wherein child abuse and mistreatment of Missouri children are reported. Also the reputations and prior bad acts of defendant Audrey Nelson and defendant Gulley were reported to D. F. S.

13. Acting under the direction and control of their aforenamed supervisors, and in the regular and ordinary course of their duties as investigators for D. F. S., defendants Keatings and White undertook to investigate some but not all of the hotline calls concerning the aforenamed Nelson children.

14. From January 1, 1978 until August 10, 1979 the actions of D. F. S., its aforenamed directors and aforenamed investigators were negligent in the following respects, to wit:

(a) not investigating all hotline calls concerning said Nelson children;

(b) failing to adequately investigate or detect the aforedescribed child abuse and mistreatment of the Nelson children through hotline calls and/or welfare investigations of Audrey Nelson;

(c) failing to adequately investigate the aforedescribed reputations and prior bad acts of defendant Audrey Nelson and defendant Theodore Gulley;

(d) improperly classifying said hotline calls and/or welfare investigations as unsubstantiated, thereby foreclosing future investigation of the plight of the Nelson children;

(e) failing to remove the Nelson children from the residence and custody of Audrey Nelson either when D. F. S., its directors and investigators knew or should have known that the environment of said children was injurious to their welfare;

(f) failing to report said child abuse and mistreatment of the Nelson children to the Jackson County Court or prosecutor or to request the Court or prosecutor to detain the children out of Audrey Nelson's custody.

15. Further, the actions or omissions of defendants David R. Freeman, J. Joseph Lewis, and Anita Donaldson in the following respects, to wit:

(a) constituted a willful refusal to perform the duties enumerated in paragraph 14(a)-(f) herein;

(b) constituted negligence in the hiring, training and continued employment of defendant Keatings and/or defendant White, each of whom were known or should have been known to be unqualified, unable or negligent with regard to fulfilling the responsibilities of an investigator of D. F. S., and in particular the duties and responsibilities enumerated in paragraph 14(a)-(f) herein;

(c) constituted direction, encouragement, personal cooperation in and/or ratification of the aforedescribed acts or omissions of defendants Keatings and White.

16. Further, the actions of defendants Keatings and White constituted willful refusal to perform the duties and responsibilities of a D. F. S. investigator as applied to plaintiffs.

17. On July 25, 1979 at 1935 Belleview, Kansas City, Jackson County, Missouri defendant Audrey Nelson continued her course of child abuse and mistreatment of said children by selling eight-year old Tammy Nelson for approximately Forty Dollars ($40.00) to defendant Theodore O. Gulley for the purpose of performing various acts of perversion and sex. Defendant Gulley shortly thereafter, while in the children's home and in front of the remaining children, performed various acts of perversion and sexual intercourse upon eight-year old Tammy Nelson.

18. As a direct and proximate result of defendants' individual and several actions and inaction, each and every child received severe and continuing injuries of a permanent and progressive nature including pain, suffering, mental distress, loss of sleep, nightmares, and loss of appetite. In addition, Tammy Nelson suffered massive bleeding and tearing of her entire body.

19. As a direct and proximate result of defendants' individual and several acts and inaction aforedescribed, Tammy Nelson was hospitalized and died on August 10, 1979; thereby, plaintiff James A. Nelson, the natural father of Tammy Nelson, suffered direct pecuniary loss, both past and future, including travel and lodging expenses, time off work, loss of services, loss of companionship, loss of comfort, all as the direct and proximate result of his daughter's death.

* * * * * *

21. The individual and several acts and omissions of defendants David R. Freeman, J. Joseph Lewis, Anita Donaldson, Ertha Keatings, and Dinah White showed complete indifference to or conscious disregard for the safety of others.

II.

Plaintiffs' motion for summary judgment and sanctions is premised upon the failure of defendants to file a timely answer to plaintiffs' first amended complaint of July 29, 1981. As noted, the first amended complaint is identical to the original complaint but for the addition of defendant Donaldson. Defendants' answer to the amended complaint was filed October 26, 1981. Plaintiffs did not object to the filing of the answer at that time. The Court finds that defendants' neglect to file a timely answer to plaintiffs' amended complaint is excusable and that plaintiffs were not prejudiced as a result. Plaintiffs' motion for summary judgment and for sanctions will therefore be denied.

In defendants' response to plaintiffs' motion for summary judgment and sanctions, defendants move the Court for entry of an order granting leave to file the October 26, 1981 answer out of time. That motion will be granted nunc pro tunc.

III.

Plaintiffs invoke only this Court's diversity jurisdiction. This Court is therefore under duty to apply the law of Missouri to the claims alleged in plaintiffs' complaint. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). It should be kept in mind that plaintiffs do not even attempt to allege a Section 1983 action.

Defendants state the following three State law grounds in support of their motion for summary judgment: (1) the doctrine of official immunity protects each defendant from liability; (2) Section 210.135, R.S.Mo. (1978) immunizes the defendants from liability, and (3) the plaintiffs' complaint does not state a claim upon which relief can be granted because, under applicable Missouri law, the defendants, as officials and employees of the State of Missouri, owed no specific duty to plaintiffs.

The first two State law grounds raise defenses of immunity; the third ground presents the question of whether, under Missouri tort law, a cause of action has been stated by the allegations of the complaint. Because we conclude that no cause of action has been stated under Missouri law, we need not and therefore do not reach the first two grounds asserted in support of defendants' motion for summary judgment.

IV. The Missouri Child Abuse Statute

The current child abuse statute in Missouri, §§ 210.110-210.160, V.A.M.S. (1981 Supp.), is designed to encourage the reporting of suspected cases of child abuse to the Missouri Division of Family Services. See generally, Krause, Child Abuse and Neglect Reporting Legislation In Missouri, 42 Mo.L.Rev. 207 (1977). It is also designed to fulfill "the promise of case-finding legislation ... that when a case is found, something will be done about it." Paulsen, The Legal Framework For Child Protection, 66 Colum.L.Rev. 679, 716 (1966).

The first objective is accomplished by creation of a statutory duty in a class of professional persons and others "with responsibility for the care of children" to report known or suspected cases of child abuse. § 210.115(1). All other persons are permitted to make reports under § 210.115(4).

The second objective is furthered by requiring the local D. F. S. office to investigate reported cases of child abuse and, if necessary, provide "protective services" or contact the appropriate law...