Sabia v. State

• Decision Date: 30 October 1995
• Docket Number: 93-596,Nos. 93-594,s. 93-594
• Citation: 164 Vt. 293,669 A.2d 1187
• Parties: Terri A. SABIA v. STATE of Vermont. Toni Lynn PATTERSON v. STATE of Vermont.
• Court: Vermont Supreme Court

Page 1187

669 A.2d 1187

164 Vt. 293

Terri A. SABIA v. STATE of Vermont.

Toni Lynn PATTERSON v. STATE of Vermont.

Nos. 93-594, 93-596.

Supreme Court of Vermont.

Oct. 30, 1995.

Kurt M. Hughes of Murdoch & Hughes, Burlington, for plaintiffs-appellants.

Jeffrey L. Amestoy, Attorney General, Montpelier, Michael O. Duane, Assistant Attorney General, Waterbury, and Jeffrey J. Nolan of Dinse, Erdmann and Clapp, Burlington, for defendant-appellee.

Before GIBSON, DOOLEY, MORSE ¹ and JOHNSON, JJ., and PECK, J. (Ret.), Specially Assigned.

JOHNSON, Justice.

Today, we consider whether the State of Vermont is immune from suit when state social workers neglect their statutory duty to provide assistance to children seeking protection from sexual abuse. Plaintiffs in this consolidated action are sisters claiming they were sexually assaulted by their stepfather during childhood and adolescence. They allege that the State, acting through employees of the Department of Social and Rehabilitation Services (SRS), failed to assist them, as required by law, despite their repeated reports of abuse, which were substantiated by other reliable sources. Based on our conclusion that the State waived sovereign immunity under the facts and circumstances of this case, we reverse the superior court's order granting judgment on the pleadings in favor of the State; however, we affirm the court's ruling that an implied cause of action is not available directly under either the federal or state constitution.

I. Facts

We must accept as true plaintiffs' allegations made in opposition to SRS's motion for judgment on the pleadings. Thayer v. Herdt, 155 Vt. 448, 456, 586 A.2d 1122, 1126 (1990). 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 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.

Plaintiffs filed suit in 1992, alleging that SRS breached its statutory duty to protect them from further abuse by failing "to take any steps to remove [them] from the home of Laplant, or to have Laplant removed from the home, and/or to formulate any plan to ensure [their] safety." Plaintiffs sought damages based on negligence, intentional infliction of emotional distress, and denial of due process of law. Concluding that the State had not waived its immunity to suit, and that a direct action was not available under either the federal or state constitution, the superior court granted judgment on the pleadings in favor of the State.

On appeal, plaintiffs argue that (1) Vermont's "good samaritan" law provides a private analog that permits this action against the State; (2) the State's purchase of liability insurance covering the alleged negligent acts and omissions also permits this action; ² and (3) they have claims under the federal and state constitutions.

II. Sovereign Immunity

We first consider whether the State has waived its sovereign immunity with respect to the present action. Sovereign immunity bars suits against the State unless immunity is expressly waived by statute. LaShay v. Department of Social & Rehabilitation Servs., 160 Vt. 60, 67, 625 A.2d 224, 228 (1993). The State has waived its immunity to certain types of suits under the Vermont Tort Claims Act, which provides, in part:

The state of Vermont shall be liable for injury to persons ... caused by the negligent or wrongful act or omission of an employee of the state while acting within the scope of employment, under the same circumstances, in the same manner and to the same extent as a private person would be liable to the claimant....

12 V.S.A. § 5601(a) (emphasis added). Thus, the State remains immune "for governmental functions for which no private analog exists." LaShay, 160 Vt. at 68, 625 A.2d at 229. Under the "private analog" analysis adopted by this Court, the State waives its immunity only to the extent a plaintiff's cause of action is comparable to a recognized cause of action against a private person. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 486, 622 A.2d 495, 498 (1993). As we stated in Denis, the threshold issue is whether the plaintiff's factual allegations "satisfy the necessary elements of a cause of action against the State comparable to one that may be maintained against a private person." Id. at 487, 622 A.2d at 498.

A. Statutory Duty

Plaintiffs' principal claim against SRS is one of negligence, which is predicated upon the Department's breach of a statutory duty of care. Denis requires that we determine whether such a duty exists under the circumstances of this case. Id. In its legal sense, duty is " 'an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.' " Id. (quoting W. Keeton, Prosser and Keeton on the Law of Torts § 53, at 358 (5th ed. 1984)). In determining whether a governmental body has undertaken a duty of care toward specified persons above and beyond its duty to the public at large, we consider (1) whether a statute sets forth mandatory acts for the protection of a particular class of persons; (2) whether the government has knowledge that particular persons within that class are in danger; (3) whether those persons have relied on the government's representations or conduct; and (4) whether the government's failure to use due care would increase the risk of harm beyond what it was at the time the government acted or failed to act. Id.

Each of these factors weighs heavily in favor of finding a duty in the present case. Regarding the first factor, statutory law provides that (1) SRS "shall cause an investigation to commence within seventy-two hours after receipt of a report" of child abuse, 33 V.S.A. § 4915(a) (emphasis added); (2) the investigation "shall include" a visit to the child's home and an interview with, or observation of, the child, and shall seek to determine, among other things, the identity of the abuser and the immediate and long-term risk if the child remains in the existing home, id. § 4915(b) (emphasis added); and (3) if the investigation produces evidence of abuse or neglect, SRS "shall cause assistance to be provided to the child and his family in accordance with a written plan of treatment." Id. § 4915(c) (emphasis added). Further, the stated purposes of the provisions requiring SRS to investigate reports of child abuse and render appropriate services are to "protect children whose health and welfare may be adversely affected through abuse or neglect," to "strengthen the family and make the home safe for children," and to "provide a temporary or permanent nurturing and safe environment for children when necessary." 33 V.S.A. § 4911. Thus, it is beyond dispute that the relevant statutory provisions create a duty on the part of SRS to assist a particular class of persons to which plaintiffs belong and to prevent the type of harm suffered by plaintiffs. See Restatement (Second) of Torts § 286 (1965) (court may adopt as standard of conduct requirements of statute whose purpose is to protect class of persons that includes plaintiff from type of harm suffered by plaintiff); cf. Cronin v. State, 148 Vt. 252, 255, 531 A.2d 929, 931 (1987) (no private cause of action available under state regulation not promulgated for plaintiff's special benefit).

As for the other three factors mentioned in Denis, the alleged facts indicate that SRS employees knew or strongly suspected that plaintiffs were being sexually abused, and thus were in danger. Further, plaintiffs contend that their reliance on SRS's promise to do something deterred them from seeking other avenues of relief. Finally, SRS's failure to act increased the risk of injury by allowing the harm to continue unabated, which may have encouraged the perpetrator by leading him to believe that he could continue abusing plaintiffs with impunity.

Accordingly, we conclude that SRS had a duty to protect plaintiffs under the circumstances of this case. In doing so, we join several courts in other jurisdictions that have found state social services agencies liable for violating their statutory duty to assist abused children. See, e.g., Mammo v. State, 138 Ariz. 528, 532, 675 P.2d 1347, 1351 (Ariz.Ct.App.1983) (because statute specifically set forth social workers' duties with regard to protection of threatened children, agency could be held liable for its failure to protect child murdered by boyfriend of custodial spouse following unheeded complaint of abuse); Turner v. District of Columbia, 532 A.2d 662, 675 (D.C.App.1987) (considering that social services agency was repeatedly notified of father's abuse and neglect of two children, and that agency was required by law to conduct prompt investigation and to take certain actions necessary to protect individually identified...