Sabia v. Neville, No. 95-405

• Docket Nº: No. 95-405
• Citation: 165 Vt. 515, 687 A.2d 469
• Case Date: October 18, 1996
• Court: United States State Supreme Court of Vermont

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687 A.2d 469 165 Vt. 515 Terri A. SABIA
v.
Anna NEVILLE, Meta Strick & Dennis LaPlant. No. 95-405. Supreme Court of Vermont. Oct. 18, 1996.

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[165 Vt. 516] Kurt M. Hughes of Murdoch & Hughes, Burlington, for plaintiff-appellant.

Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O. Duane, Assistant Attorney General, Waterbury, for defendants-appellees.

Before ALLEN, C.J., and GIBSON, DOOLEY and JOHNSON, JJ., and TEACHOUT, Superior Judge, Specially Assigned.

DOOLEY, Judge.

This is a companion case to Sabia v. State, 164 Vt. 293, 669 A.2d 1187 (1995) (Sabia I ), in which we decided that two sexually abused minors could bring a tort action against the State of Vermont when state social workers neglected their statutory duty to provide assistance to stop the abuse. While Sabia I was pending in the trial court, one of the plaintiffs in that action brought this separate suit against the social workers, Anna Neville and Meta Strick, in their personal capacities, and against the alleged abuser, plaintiff's stepfather Dennis LaPlant. The Chittenden Superior Court granted summary judgment for the social workers (hereinafter, defendants), holding that they enjoyed qualified immunity from the tort claims [165 Vt. 517] against them. ¹ Plaintiff challenges this ruling, as well as defendants' other arguments in support of dismissal of the complaint. We reverse and remand.

The basic allegations were stated in Sabia I as follows:

Plaintiff Toni Patterson, who was twenty-two years old when she filed suit in May 1992, was first sexually abused by her stepfather, Dennis Laplant, at the age of six or seven. She was thirteen years old in 1983 when she reported the abuse to a teacher, who informed SRS. An SRS supervisor

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met with Toni and the teacher in March 1983, at which time the supervisor stated that she would be in touch, and that either Toni or her stepfather would be removed from the home. No action was taken.

Plaintiff Terri Sabia, who is three years younger than her sister, was sexually abused by her stepfather beginning at age five. When Terri was approximately seven years old, a babysitter reported to SRS that she had observed physical signs of sexual abuse while bathing Terri. Apparently, nothing was done in response to the report. In 1983, when Terri was eleven years old, she reported to the school nurse and principal that Laplant had sexually assaulted her. School officials notified the director of the Franklin County Family Center, who investigated and reported to SRS that Laplant had admitted having sexual intercourse with Toni and "touching" Terri. SRS took no action in response to the report. The continuing abuse was reported to SRS again in 1986, but again nothing was done. Laplant's sexual abuse of plaintiffs continued unabated until 1987.

Id. at ----, 669 A.2d at 1190.

The above facts were based solely on the allegations in the complaint. As discussed below, this action has had some factual development in support of the cross-motions for summary judgment, and defendants have denied any knowledge of the sexual abuse of plaintiff. Also, plaintiff's sister, Toni Patterson, has not joined in this action.

In her complaint, plaintiff alleged that defendants were negligent and grossly negligent and that they intentionally inflicted emotional [165 Vt. 518] distress on plaintiff. Defendants immediately moved to dismiss the negligence counts on the ground that a damage action based on the negligence of a state employee must be brought against the state. See 12 V.S.A. § 5602(a). The court granted the motion to dismiss, and plaintiff has not contested that decision on appeal.

Defendants moved for summary judgment on the remaining counts based on affidavits that are summarized below. Defendants argued that based on the undisputed facts they were not grossly negligent and did not intentionally inflict emotional distress on plaintiff. They also argued that their actions were protected by qualified immunity. After plaintiff responded with affidavits, the superior court granted summary judgment for defendants based on qualified immunity and did not reach defendants' other arguments. Plaintiff argues here that the qualified immunity decision is erroneous and further that none of defendants' grounds for summary judgment are valid. We agree that it was error to grant summary judgment based on qualified immunity, but do not reach the other arguments because they have not been considered by the trial court.

Plaintiff has relied upon three affidavits in opposition to defendants' motion for summary judgment. The affidavit of plaintiff states that Dennis LaPlant sexually abused her from age five and had sexual intercourse with her from age six. The acts continued until she was at least fifteen years old. She stated that the acts were first disclosed in 1979 to a neighbor who reported them to SRS.

According to plaintiff's affidavit, her older sister Toni reported the ongoing sexual abuse of herself to a school teacher in 1982. The report was relayed to defendants, and defendant Strick interviewed Toni Sabia, who was then thirteen years old. At the interview, Toni told Strick that she had been sexually abused by LaPlant since she was six or seven years old. Defendant Strick promised to remove Toni or LaPlant from the home.

Also according to the affidavit, plaintiff reported the ongoing sexual abuse to a school nurse, who reported it to the director of the Franklin County Family Center. The director interviewed Dennis LaPlant, who admitted sexual abuse of both Toni and plaintiff. The director "reported the results of her investigation to SRS."

Finally, plaintiff stated in her affidavit that she reported the abuse to an SRS investigator in 1986. According to the affidavit, she reported to the investigator that LaPlant had touched her under her clothes, the abuse was ongoing, and it had not been discontinued.

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She stated she was scared during the interview.

[165 Vt. 519] The teacher submitted an affidavit, dated April 15, 1993, confirming what plaintiff stated about her actions. There is no specific statement in this affidavit that Toni disclosed that plaintiff was also being sexually abused by LaPlant. Her affidavit ends, however, with the following paragraph:

12. It is very clear to me that the failure of SRS to act on Toni's report that she and Terri were being sexually abused was directly responsible for extreme emotional distress on the part of both girls, not to mention myself.

The teacher also submitted an affidavit for defendants. This affidavit, dated December 20, 1994, states that neither Toni nor plaintiff told her of LaPlant's abuse of plaintiff at any time during the 1980s. She states that she first learned of the abuse of plaintiff from Toni following the institution of criminal charges against LaPlant in 1991.

The director of the Franklin County Family Center prepared an affidavit on October 14, 1983, stating that she had learned of the sexual abuse of Toni from a school guidance counselor and that she interviewed Toni. Toni at first stated that she did not believe that LaPlant had sexually abused plaintiff, but on September 21, 1983 called the director to tell her that LaPlant "had molested Terry." The director met that day with Toni and the neighbor to whom, according to her affidavit, plaintiff had first reported the sexual abuse. The neighbor described being present in the bathroom of plaintiff's house, while plaintiff was bathing, and noticing that plaintiff's vagina was red and swollen. The neighbor started asking plaintiff questions, and plaintiff disclosed LaPlant's sexual abuse in response. The director then met with plaintiff, who described the sexual abuse, and the mother of Toni and Terri, who admitted it was happening.

The affidavit goes on to an entry for the next day as follows: "Contacted SRS 9/22--Spoke to Meada regarding this family." On the same day Dennis LaPlant called for an appointment, which was set up for September 29th. According to the affidavit, the director again contacted SRS on the 29th and "spoke to Meada to see if Gary could be present when Dennis would be there." The "Gary" in the affidavit is apparently Gary Greenfield, an investigator for the Franklin County State's Attorney. The affidavit goes on to describe the director's meeting with LaPlant, in which he admitted the sexual abuse of both Toni and Terri.

Defendants submitted affidavits which contradicted in numerous respects the statements contained in the affidavits submitted by [165 Vt. 520] plaintiff. Generally, defendants denied knowledge of LaPlant's abuse of plaintiff.

Defendant Neville states that she was the...