Purdy v. Fleming

• Decision Date: 11 December 2002
• Docket Number: No. 22181.,22181.
• Parties: Ann PURDY, natural mother of the Deceased, in her personal capacity and as Administrator of the Estate of Amanda Froistad, Deceased, Plaintiff and Appellant, v. Lisa FLEMING, in her personal and representative capacities; Wendy Cummings, in her personal and representative capacities; and Dr. Frank Buzzetta, (Deceased), Defendants and Appellees.
• Court: South Dakota Supreme Court

655 N.W.2d 424

2002 SD 156

Ann PURDY, natural mother of the Deceased, in her personal capacity and as Administrator of the Estate of Amanda Froistad, Deceased, Plaintiff and Appellant, v. Lisa FLEMING, in her personal and representative capacities; Wendy Cummings, in her personal and representative capacities; and Dr. Frank Buzzetta, (Deceased), Defendants and Appellees.

No. 22181.

Supreme Court of South Dakota.

Argued October 8, 2002.

Decided December 11, 2002.

Alicia D. Garcia, Michael Abourezk of Abourezk Law Firm, P.C., Rapid City, South Dakota, Attorneys for plaintiff and appellant.

Neil Fulton of May, Adam, Gerdes & Thompson, LLP, Pierre, South Dakota, Attorney for defendants and appellees Fleming and Cummings. Catherine M. Sabers, Thomas G. Fritz of Lynn, Jackson, Shultz & Lebrun, Rapid City, South Dakota, Attorneys for defendant and appellee Buzzetta.

GILBERTSON, Chief Justice.

[¶ 1.] Ann Purdy (Purdy), as administrator of the Estate of Amanda Froistad, and as the natural mother of the deceased, brought actions against several defendants relating to the investigation of the abuse and the resultant death of her daughter. The defendants, Dr. Frank Buzzetta (deceased), and Department of Social Service employees, Lisa Fleming and Wendy Cummings, moved for summary judgment, which the trial court granted. Purdy brings this appeal asking us to review the trial court's order. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Amanda Marie Froistad (Amanda) was born on August 4, 1989. Tragically, when she was five years old, she died in a house fire in Bowman, North Dakota. At the time of Amanda's death, she was living with her father, Larry Froistad (Froistad) who had physical custody of her. Initially, the police determined the fire to be accidental. However, three years later, Froistad confessed in an Internet chatroom that he had murdered his daughter. Several members of the chat group reported this information to law enforcement officials. After a criminal investigation, it was revealed he had been sexually abusing Amanda for years before her murder.¹ Subsequently, Froistad pled guilty to North Dakota State charges of Class AA Murder and federal charges of sexual exploitation of a minor.²

[¶ 3.] The criminal investigation also revealed that social service agencies in both South Dakota and North Dakota had received reports of the abuse of Amanda. These reports were made in July of 1994 at the time Purdy, Amanda's mother, had custody of her daughter in South Dakota. During this period, Amanda's parents shared custody of Amanda, with Froistad having custody during the school year and Purdy having custody during the summer.

[¶ 4.] After Amanda's day care provider told Purdy that she should seek professional counseling for Amanda because of Amanda's aggressive behavior, Purdy brought Amanda to Liz Thorn, M.A., a psychologist. During the course of this initial interview, Amanda revealed to Thorn that her dad had been touching her genital area with his hands and with "his a stick" [sic]. As a result of these disclosures, Thorn referred Amanda to the South Dakota Department of Social Services.

[¶ 5.] On approximately July 13, 1994, Wendy Cummings (Cummings), a Department of Social Service supervisor, assigned Amanda's case to Lisa Fleming (Fleming). After interviewing Amanda, Fleming relayed to Purdy the information she received from Amanda. The details of this conversation between Fleming and Purdy are disputed. Purdy claims Fleming told her that Amanda did not repeat her allegations of sexual abuse and that she sounded like "an angry child." However, Fleming testified that Amanda indicated possible sexual abuse but did not provide confirming details. Whatever the case, Fleming and Cummings believed that South Dakota lacked jurisdiction for any abuse and neglect or criminal action, because it was their belief that the alleged abuse occurred in North Dakota when Froistad had legal and physical custody of Amanda. They, therefore, referred the information obtained in the interview to North Dakota Social Services. The Department of Social Services in North Dakota believed South Dakota had jurisdiction of this matter because Amanda was visiting in this state with her mother at the time of the referral.

[¶ 6.] Because of Amanda's allegations against her father, Purdy moved to have the custody arrangement modified in North Dakota. Froistad hired Dr. Frank Buzzetta, a licensed psychologist, to present a custody report. The North Dakota court ordered that the entire family be seen by Dr. Buzzetta prior to the court's rendering a decision on Purdy's petition for a change in custody. Dr. Buzzetta's final recommendation to the North Dakota custody court indicated that he believed that the sexual abuse allegations against Froistad were false. Ultimately, Purdy's motion to change the custody of Amanda was denied and custody remained as it had originally been set, with Purdy having custody of Amanda only during the summer months.

[¶ 7.] After Amanda's death and Froistad's confession in the Internet chatroom, Purdy filed claims against Fleming and Cummings, under state wrongful death and survival causes of actions.³ Purdy also brought claims against Cummings alone for negligent hiring, training, and supervision. She additionally presented a claim that Amanda's substantive due process right of bodily integrity under the Fourteenth Amendment was violated.

[¶ 8.] Furthermore, Purdy brought claims against Dr. Buzzetta because he was the author of the report to the North Dakota court recommending that custody should remain unchanged. Purdy's claim against this Defendant alleged a cause of action for wrongful death, claiming Dr. Buzzetta had breached various duties owed to Amanda, including a duty to report suspected abuse.

[¶ 9.] All three of the defendants moved for summary judgment, which the trial court granted. The trial court found that the claims against Dr. Buzzetta were barred based upon the statute of limitations and good faith immunity. Summary judgment for the state claims was granted in Fleming and Cummings' favor based on Purdy's failure to give notice within 180 days of injury. Additionally, the trial court granted summary judgment on the federal claim because of qualified immunity.

[¶ 10.] Purdy appeals the grant of summary judgment in favor of the South Dakota Department of Social Services defendants, raising the following issues for appeal:

1. Whether Purdy failed to comply with the notice requirements of SDCL 3-21-2 and the applicable statute of limitations.

2. Whether Fleming and Cummings are entitled to good faith immunity under SDCL 26-8A-14.

3. Whether Cummings is entitled to sovereign immunity from Purdy's negligent supervision, hiring, and training claim.

4. Whether Purdy's federal claim under 42 USC § 1983 is barred by qualified immunity.

Purdy appeals the grant of summary judgment in Dr. Buzzetta's favor, raising the following issues for appeal:

1. Whether the causes of action against Dr. Buzzetta were barred by the applicable statute of limitations.

2. Whether Dr. Buzzetta is entitled to good faith immunity under SDCL 26-8A-14.

STANDARD OF REVIEW

[¶ 11.] Summary judgment is authorized "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law." Holzer v. Dakota Speedway, Inc., 2000 SD 65, ¶ 8, 610 N.W.2d 787, 791-792 (citing SDCL 15-6-56(c)). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. Id. (citing Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987)). All reasonable inferences drawn from the facts must be viewed in favor of the nonmoving party. Id. (citing Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990)). The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. Id. (citing Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968)). "Summary judgment will be affirmed if there exists any basis which would support the trial court's ruling." Id. (citing Wolff v. SD Game, Fish and Parks Dept., 1996 SD 23, ¶ 32, 544 N.W.2d 531, 537 (citing St. Paul Fire & Marine Ins. v. Schilling, 520 N.W.2d 884, 886 (S.D.1994)) (emphasis added).

[¶ 12.] Our review of the constitutionality of a statute is de novo. Green v. Siegel, Barnett & Schutz, 1996 SD 146, ¶ 7, 557 N.W.2d 396, 398

(citing Kyllo v. Panzer, 535 N.W.2d 896, 897 (S.D.1995)).

ANALYSIS AND DECISION

Claims against Cummings and Fleming

[¶ 13.] 1. Whether Purdy failed to comply with the notice requirements of SDCL 3-21-2 and the applicable statute of limitations.

[¶ 14.] Purdy's state law claims included actions for wrongful death, claims in the nature of survival actions, claims for negligence, claims for gross negligence, and claims for negligent hiring, training, and supervision. Cummings and Fleming argue that Purdy did not meet the notice requirements provided for under SDCL 3-21-2. Specifically, this statute provides:

No action for the recovery of damages for personal injury, property damage, error or omission or death caused by a public entity or its employees may be maintained against the public entity or its employees unless written notice of the time, place and cause of the injury is given to the public entity as provided by this chapter within one hundred eighty days after the injury.

(emphasis added). Purdy concedes that she had not substantially complied with the notice requirement until August of 1998, a date more than three years after Amanda's death, which occurred on or about May 31, 1995. However, Purdy contends that the date of discovery should trigger the 180-day notice period. For this proposition, she cites to Myears v. Charles Mix County, 1997 SD 89, 566...