Owens By and Through Owens v. Garfield

• Decision Date: 29 December 1989
• Docket Number: No. 870026,870026
• Citation: 784 P.2d 1187
• Parties: Matthew Frank OWENS, a minor, By and Through his guardian ad litem, Kathy J. OWENS, and Kathy J. Owens, individually, Plaintiffs and Appellants, v. Eileen GARFIELD, Robert F. Suchyta, M.D., Salt Lake County, and State of Utah, Defendants and Appellees.
• Court: Utah Supreme Court

Page 1187

784 P.2d 1187

Matthew Frank OWENS, a minor, By and Through his guardian ad

litem, Kathy J. OWENS, and Kathy J. Owens, individually, Plaintiffs and Appellants, v. Eileen GARFIELD, Robert F. Suchyta, M.D., Salt Lake County, and State of Utah, Defendants and Appellees.

No. 870026.

Supreme Court of Utah.

Dec. 29, 1989.

W. Brent Wilcox, Colin P. King, Edward B. Havas, Salt Lake City, for plaintiffs and appellants.

Brad L. Swaner, Salt Lake City, for Garfield.

Stewart M. Hanson, Francis J. Carney, Salt Lake City, for Suchyta.

David E. Yocom, Patricia J. Marlowe, Jerry G. Campbell, Salt Lake City, for Salt Lake County.

R. Paul Van Dam, Linda Lunistra, David J. Schwendiman, Salt Lake City, for State.

DURHAM, Justice:

Plaintiffs appeal the trial court's grant of summary judgment in favor of defendants Salt Lake County and the State of Utah. ¹ Plaintiffs argue that (1) the lower court erred in holding that defendants owed no duty to plaintiffs and (2) summary judgment was inappropriate since genuine issues of fact exist. We affirm the decision of the trial court. Neither defendant owed a legal duty to plaintiffs, and therefore no cause of action for negligence lies.

In a case decided on summary judgment, the facts are considered in the light most favorable to the party opposing summary judgment. Hill v. State Farm Mut. Auto. Ins. Co., 765 P.2d 864, 866 (Utah 1988). The recitation of the facts in this case follows that principle.

Eileen Garfield was selected as the daytime babysitter for Matthew Owens by his mother, Kathy Owens. On December 10, 1981, Matthew, then seven months old, was left in Ms. Garfield's care all day and part of the evening. Early the next morning, Ms. Owens discovered that Matthew was ill. He was taken to the hospital, where it was determined that he had sustained numerous injuries. Garfield was subsequently convicted of second degree felony child abuse for the battering of Matthew, who is permanently and seriously impaired, mentally and physically, because of his injuries.

Prior to Garfield's abuse of Matthew, the State, through its Division of Family Services (DFS), and the County suspected Garfield of abusing other children in her care. In 1975, two reports were filed with the DFS against Garfield for suspected abuse. Both incidents were investigated by the Salt Lake County Sheriff's office, and one charge of reckless conduct resulted. In August 1980 and March 1981, two more reports accusing Garfield of child abuse were filed with the DFS. These cases were turned over to the County. Following investigation, the County filed criminal charges against Garfield on July 2, 1981. These charges were pending at the time Matthew was abused by Garfield.

Another investigation, which did not result in criminal charges against Garfield, was conducted in March 1981. The DFS was notified by the parent of a child in Garfield's care of a suspected incident of abuse. The County was notified of this incident, conducted an investigation, and determined, upon the advice of the county attorney, that charges should not be filed. This decision was based on delay in reporting the incident, which prevented accurate documentation of the child's injuries, and uncertainty on the part of the parent and a doctor who examined the child as to whether the injuries were the result of abuse.

The same parent also expressed concern that Garfield was tending too many children and that she was unlicensed. This led to investigatory visits by both the DFS and an officer from the Salt Lake County Sheriff's office. Garfield was warned by the DFS that she would have to reduce the number of children in her care in order not to be in violation of Utah's day-care licensing laws. The laws in effect at that time required anyone caring for three or more children in his or her home to be licensed. Utah Code Ann. §§ 55-9-1 to -5 (Supp.1981) (repealed 1987; comparable provisions codified at Utah Code Ann. §§ 62A-2-101 to-116 (1989)). She was also advised that she would not be eligible for licensure because of the 1975 child abuse charge. A follow-up visit found Garfield in compliance with the licensing laws.

Plaintiffs argue that the State and the County breached their duty to Matthew Owens by not attempting to prevent Garfield from babysitting prior to Matthew's injuries and by not warning the parents of children in her care about their concerns regarding Garfield. As discussed below, however, we agree with the trial court that neither the State nor the County owed a legal duty to Matthew Owens and therefore could not be found negligent. ² Because we hold as a matter of law that no legal duty was owed to Matthew Owens by defendants, we do not address plaintiffs' claim that summary judgment was inappropriate because of the existence of genuine issues of material fact. ³

An essential element of a negligence claim is a duty owed by the defendant to the plaintiff. Beach v. University of Utah, 726 P.2d 413, 415 (Utah 1986). Traditionally, the common law has not required a defendant to prevent harm when doing so requires that the defendant control the conduct of another person or warn others about such conduct. There are two exceptions to this rule. There is a duty to control the conduct of a third person or warn another of such conduct if

(a) a special relation exists between the [defendant] and the third person which imposes a duty upon the [defendant] to control the third person's conduct, or

(b) a special relation exists between the [defendant] and the other which gives to the other a right to protection [from the third person].

Hale v. Allstate Ins. Co., 639 P.2d 203, 205 (Utah 1981) (quoting Restatement (Second) of Torts § 315 (1964)). Thus, in order to find a duty on the part of defendants to prevent Garfield from babysitting or to warn plaintiffs of problems regarding Garfield, a special relationship must have existed between defendants and Garfield or defendants and Matthew Owens.

It is difficult to conceive, and plaintiffs do not attempt to construct, an argument that defendants had a sufficiently close relationship in a legal sense with Garfield to give rise to a duty to control her activities. Although both the DFS and the County had been investigating Garfield, she was not in their custody, she was not under their direct supervision, and she was not required to be licensed by the State to be a day-care provider. Two courts have decided cases where governmental liability was premised on a duty created under the state's day-care licensing statutes. See e.g., Andrade v. Ellefson, 391 N.W.2d 836 (Minn.1986); Brasel v. Children's Servs. Div., 56 Or.App. 559, 642 P.2d 696 (1982). In both of these cases, a duty to prospective users of licensed day-care providers was found under the statute. Garfield was not included in the class of day-care providers required to be licensed under the Utah day-care licensing laws. Because this case does not involve a licensed day-care provider, no duty can be predicated on the licensing provisions.

A more significant relationship between Garfield and defendants than existed here would be required in order to impose a legal duty upon either defendant to take the actions plaintiffs allege they should have taken to control Garfield's activities. See, e.g., Cansler v. State, 234 Kan. 554, 675 P.2d 57 (1984) (incarcerated criminal); Petersen v. State, 100 Wash.2d 421, 671 P.2d 230 (1983) (confined mental patient); Division of Corrections v. Neakok, 721 P.2d 1121 (Alaska 1986) (parolee who had exhibited dangerous tendencies in prison).

Plaintiffs focus on the alternative argument that a special relationship existed between defendants and Matthew Owens which created a duty to protect Matthew. They claim that this relationship arose from a statutory duty created by Utah's child abuse reporting statute, Utah Code Ann. §§ 78-3b-1 to -16 (Supp.1981) (repealed and recodified in 1988), see note 5, infra, as read in pari materia with the Federal Child Abuse Prevention and Treatment Act, 42 U.S.C. §§ 5101-5106h (1982). We first address plaintiffs' claim that the terms of the federal statute must be incorporated into our construction of the Utah statute.

The Federal Child Abuse Prevention and Treatment Act deals with appropriation of federal funds for state child abuse prevention and treatment services. It contains guidelines for the states and suggests ten elements to be considered in setting up child abuse prevention and treatment services. ⁴ However, the statute is not intended to serve as mandatory model legislation. In fact, the regulations promulgated under the statute provide that the "enactment of identical laws and procedures in the states is not necessary." 45 C.F.R. § 1340.3-3 (1981).

Plaintiffs' perception of the role of the federal legislation is incorrect. The court in Jensen v. Conrad, 570 F.Supp. 91 (D.S.C.1983), aff'd, 747 F.2d 185 (4th Cir.1984), cert. denied, 470 U.S. 1052, 105 S.Ct. 1754, 84 L.Ed.2d 818 (1985), interpreted the same federal statute in a case similar to this. Jensen dealt with a claim that a child abuse victim had been deprived of a right to life by the failure of the state's department of social services to protect her from abusive parents. One basis for the right alleged by the plaintiffs was the Federal Child Abuse Prevention and Treatment Act. The court held the statute to be a "mere federal-state funding [statute]." Id. at 113. The court also noted:

[The statute] do[es] address by means of federal appropriations, the problem of child abuse and neglect in the individual states. However, the fact that abused children are the indirect recipients of federal largess does not, in and of itself, create enforceable "rights" in the statute itself.

Id. at 112 (citation omitted).

The reasoning of Jensen is applicable to plaintiffs' argument in this case. The federal statute is a funding statute that suggests how child abuse prevention and treatment programs...