Rourk v. State

• Decision Date: 12 November 1991
• Docket Number: No. 1,CA-CV,1
• Citation: 170 Ariz. 6,821 P.2d 273
• Parties: Rebel Lynn ROURK, a single woman, Plaintiff-Appellant, v. The STATE of Arizona, Arizona Department of Economic Security, an agency of the State of Arizona, Donnovan Myers, William Blount and Debra Lynn Blount, husband and wife, Defendants-Appellees. 89-633.
• Court: Arizona Court of Appeals

Page 273

821 P.2d 273

170 Ariz. 6

Rebel Lynn ROURK, a single woman, Plaintiff-Appellant, v. The STATE of Arizona, Arizona Department of Economic Security, an agency of the State of Arizona, Donnovan Myers, William Blount and Debra Lynn Blount, husband and wife, Defendants-Appellees.

No. 1 CA-CV 89-633.

Court of Appeals of Arizona,

Division 1,

Department C.

Nov. 12, 1991.

[170 Ariz. 8] Charles Anthony Shaw, Prescott, and S. Alan Cook, Phoenix, for plaintiff-appellant.

Jones, Skelton & Hochuli by Don C. Stevens, II, Phoenix, Attorney for defendants-appellees.

OPINION

KLEINSCHMIDT, Judge.

The plaintiff, Rebel Lynn Rourk, was injured in an automobile accident when she was returning home from a teenage drinking party. She brought an action for negligent supervision against her foster parents and against the State of Arizona and the Arizona Department of Economic Security (DES) for negligently licensing the foster home in which she lived, and for negligently placing her in it. The trial judge granted partial summary judgment for the state and DES on the claim for negligent licensing. At the close of the plaintiff's case, he directed a verdict in favor of all defendants on all issues.

We hold that the parental immunity doctrine does not protect foster parents from suit for the negligent supervision of a foster child if the foster parents are not related to the child by blood, marriage or adoption, or are not providing long-term foster care in contemplation of adoption. We also hold that the negligence of the driver of the car in which Rebel Rourk was riding at the time of the accident was not a superseding cause of her injury that would preclude her recovery against the foster parents and the state. We also find sufficient evidence to support a finding that the state was grossly negligent in placing Rebel Rourk in the foster home and in failing to remove her from that home when it knew or should have known that she was not receiving adequate supervision. Accordingly, we reverse and remand for a new trial.

FACTS

The evidence, in the light most favorable to the plaintiff, is as follows. In December 1984, Rebel Rourk was a seventeen-year-old girl in the care and custody of DES. She was suicidal and had once overdosed on drugs. A psychologist, Jeffrey Hatch-Miller, recommended that Rebel be placed in a therapeutic, or class three, foster home where she could be closely supervised. He also recommended that she receive immediate therapy.

The DES maintains three classifications for foster homes. A level one home is for children and teenagers without significant behavioral or emotional problems. A level two home is equipped to handle foster children with moderate behavioral or emotional problems, and a level three home can accept children with more severe behavioral or emotional problems who require constant monitoring and twenty-four-hour supervision.

In the spring of 1985, Donnovan Myers, a DES employee, placed Rebel in a foster home maintained by William and Debra Blount. The Blount home was a level one home, although the psychologist, Jeffrey Hatch-Miller, was told, by whom is unspecified, that it was a level three home. No one from DES told the Blounts that Rebel had suicidal tendencies, that she suffered from severe depression, or that she had a problem with alcohol, although all of this was known to the state.

In addition to their own three children, the Blounts cared for four other foster children in their home. The foster children were frequently unsupervised and drank alcohol on several occasions. DES had been notified of at least two incidents involving lack of supervision and drinking. William Blount had a drinking problem and was frequently intoxicated. Debra Blount acted more like a friend to the children than a parent figure. Rebel was permitted to come and go as she pleased, and she was allowed to drink alcohol. She became intoxicated in the Blount home on five or six occasions. Debra Blount participated in drinking parties at the home and provided Rebel with a twelve-pack of beer on at least one occasion. The other foster children also drank alcohol and used drugs.

The week before the accident, Rebel and two other foster children had been given permission to go to the all-night movies, with a 3:00 a.m. curfew. During the course of the evening, Rebel met two men, Bruce Germain and Richard Tyree, who took her and the other foster children to a party at Lynx Lake, where young people were known to go to drink alcohol. Rebel became intoxicated on this occasion and did not arrive home until 4:00 a.m. She told Debra Blount that she had been at a party at Lynx Lake.

Rebel saw Germain and Tyree several times the following week with Debra Blount's knowledge. On Wednesday of that same week, Debra Blount went out of town, leaving all of the children in the care of her husband. Rebel asked William Blount for permission to go to Lynx Lake on Friday night. Blount agreed, and Rebel went to Lynx Lake with two other foster children and the two men, Germain and Tyree. Rebel had several drinks at the party, and she rode home with Germain, who had also been drinking. Germain was speeding and "playing chicken" when his vehicle was involved in an accident resulting in the death of two persons and serious injury to Rebel. Germain subsequently pled guilty to two counts of reckless manslaughter arising out of this accident.

Rebel sued the state, DES, Donnovan Myers and the Blounts, alleging that the state, DES and Myers had negligently licensed the Blounts as foster parents and had negligently supervised and monitored Rebel's placement with them. She alleged that the Blounts negligently failed to supervise her while she was in their care and that the state and DES were liable for the Blounts' negligent supervision. The trial court entered summary judgment in favor of the state and DES on the negligent licensing claim. At the subsequent trial, the court granted the defendants' motions for directed verdicts on all the remaining claims.

On an appeal from a directed verdict or summary judgment, the evidence must be viewed most favorably to the opposing party. Hoffman v. Greenberg, 159 Ariz. 377, 767 P.2d 725 (App.1988) (directed verdict); State ex rel. Corbin v. Challenge, Inc., 151 Ariz. 20, 725 P.2d 727 (App.1986) (summary judgment). A directed verdict is proper if reasonable minds could not differ on the inferences or conclusions that could be drawn from the evidence, and the party for whom it is granted is entitled to judgment as a matter of law. Robertson v. Sixpence Inns of America, Inc., 163 Ariz. 539, 789 P.2d 1040 (1990).

PARENTAL IMMUNITY

The question whether the parental immunity doctrine applies to foster parents has not been addressed by the Arizona courts. A foster home is defined as:

A home maintained by any individual or individuals having the care or control of minor children, other than those related to each other by blood or marriage, or related to such individuals, or who are legal wards of such individuals.

A.R.S. 8-501(4).

The doctrine of parental immunity originally prohibited a child from bringing a common law tort action against a natural parent. See generally W. Prosser & W. Keeton, Law of Torts, § 122 at 904-10 (5th ed. 1984); Schleier v. Alter, 159 Ariz. 397, 398, 767 P.2d 1187, 1188 (App.1989). It was first applied in this state to preserve family welfare and unity. Purcell v. Frazer, 7 Ariz.App. 5, 8, 435 P.2d 736, 739 (1967). The doctrine was partially abrogated in Streenz v. Streenz, 106 Ariz. 86, 471 P.2d 282 (1970), which held that an unemancipated minor could sue a parent for injuries sustained as a result of the parent's negligent driving. The court pointed out that common law has long permitted children to sue parents in property and contract and that the prevalence of liability insurance renders the "domestic tranquility argument" in favor of the parental immunity doctrine "hollow" because in reality the litigation is between the child and the parents' insurance carrier. The Streenz court specified that the parental immunity doctrine would continue to apply in two situations:

(1) Where the alleged negligent act involves an exercise of parental authority over the child; and

(2) Where the alleged negligent act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and dental services, and other care.

Id. at 89, 471 P.2d at 285. A later case holds that the parental immunity doctrine shields a parent from an action for negligent supervision if the parent's breach of duty was to the child alone, instead of to the world at large. See Sandoval v. Sandoval, 128 Ariz. 11, 623 P.2d 800 (1981) (leaving gate open so child could wander into street was a breach of duty to the child alone).

If this case involved a lawsuit against natural parents, the parental immunity doctrine would apply. Here, however, we are dealing with a lawsuit against foster parents. Other jurisdictions that have considered the question have concluded that the parental immunity doctrine does not apply to foster parents. See generally Annot., 55 A.L.R. 4th 778 (1987). For example, in Mayberry v. Pryor, 422 Mich. 579, 374 N.W.2d 683 (1985), the Michigan Supreme Court held that foster parents could not invoke parental immunity in an action brought by a foster child for negligent supervision. Michigan, like Arizona, had abolished the parental immunity doctrine except in situations involving supervision and the provision of ordinary care. The court first noted that the majority of cases that gave the benefit of the doctrine to persons standing in loco parentis to a child involved stepparents, adoptive parents, grandparents, and other "persons related by blood, marriage, or adoption." 374 N.W.2d at 685; see, e.g., Thelen v. Thelen, 174 Mich.App. 380, 435 N.W.2d 495 (1989) (doctrine applies to stepparents). However, with respect to foster parents, the...