Stone v. Glass

• Decision Date: 04 February 2000
• Docket Number: No. 1998-CA401973-MR.,No. 1998-CA-002062-MR.,1998-CA401973-MR.,1998-CA-002062-MR.
• Citation: 35 S.W.3d 827
• Parties: Anna M. STONE, Appellant/Cross Appellee. v. Leslie B. GLASS Appellee/Cross-appellant.
• Court: Kentucky Court of Appeals

Page 827

35 S.W.3d 827

Anna M. STONE, Appellant/Cross Appellee. v. Leslie B. GLASS Appellee/Cross-appellant.

No. 1998-CA401973-MR.

No. 1998-CA-002062-MR.

Court of Appeals of Kentucky.

February 4, 2000.

Discretionary Review Denied February 14, 2001.

David C. Stratton, Pikeville, Kentucky, for appellant/cross-appellee.

Daniel E. Murner, David W. Zahniser, Lexington, Kentucky, for appellee/cross-appellant.

Before: JOHNSON, KNOPF, and SCHRODER, Judges.

OPINION

SCHRODER, Judge:

This is an appeal from a judgment of the Fayette Circuit Court on claims for professional malpractice and outrageous conduct. Because appellee is entitled to quasi-judicial immunity, we reverse the decision of the Fayette Circuit Court.

Appellant, Anna Stone (Stone), was married to Charles Walton (Walton) in August, 1986. They had two children, Hank, born in March, 1990, and Zachary, born in February, 1988. They were divorced in December, 1991 by the Pulaski Circuit Court, and agreed to joint custody of the children.

On March 26, 1992, Stone filed a motion in Pulaski Circuit Court seeking sole custody of the children. Stone contacted appellee, Leslie Glass (Glass), a licensed clinical social worker, about performing a custodial evaluation. Walton agreed to the selection of Glass. Glass would only agree to perform the evaluation if she were appointed by the court. Stone then sought and obtained Glass's appointment in a court order dated April 14, 1992. In Glass's report, dated June 2, 1992, she stated that both Stone and Walton were good parents, but recommended that Walton be given sole custody of the children.

On August 31, 1992, the court awarded sole custody of the children to Walton. Stone was given visitation, including six weeks during summer vacation, Thanksgiving, Christmas Eve, Christmas Day, Easter Sunday, spring break, Mother's Day, and the children's birthdays in alternate years. Stone was ordered to pay child support in the amount of $759.00 per month.

Stone made a motion for the court to set forth specific findings of fact for the custody award. On October 21, 1992, the court amended its previous order and explained its findings of fact stated in the August 31, 1992 order. Among its reasons, the court stated that from the testimony of Glass, it found that the children had a significant bond with their father, and the children were more attached to their father. The judge further noted that Glass's testimony indicated that Walton had made the children his number one priority, whereas Stone had not. (It should be noted that Stone appealed the sole custody award to this court, which, in an unpublished opinion rendered on May 5, 1995 reversed the award of sole custody to Walton and remanded to Pulaski Circuit Court to reinstate joint custody. In November, 1995, Stone again moved the Pulaski Circuit Court to modify the custody order, and the court awarded sole custody to Walton, finding that joint custody was no longer workable. This Court affirmed the trial court's order in an unpublished opinion rendered on August 14, 1998.)

On July 9, 1993, Stone filed suit against Glass in Fayette Circuit Court, alleging, among other claims, professional negligence and outrageous conduct in the performance of her custodial evaluation. A jury trial commenced on April 27, 1998. The issues of liability and damages were ordered bifurcated by the court. At the close of Stone's case in the liability portion of the trial, Glass moved for a directed verdict, arguing, among other things, that she was entitled to immunity as a courtappointed social worker. The court denied the motion.

The jury found for Stone on the negligence claim, and for Glass on the outrageous conduct claim. The court then excluded the jury and held hearings regarding the evidence Stone intended to offer regarding her claimed damages, ruling that certain damages claimed were improper and not recoverable as a matter of law and that certain evidence Stone intended to present regarding such damages was inadmissible. As a result, Stone was unable to present any evidence on any items of damages, and the jury was dismissed. Judgment was entered on July 14, 1998, and this appeal followed. Glass filed a cross-appeal.

On appeal, Stone alleges that the trial court: 1) erred in bifurcating the issues of liability and damages; 2 erred in its refusal to allow Stone to introduce evidence subsequent to August 31, 1992, the date of the Pulaski Circuit Court's issuance of its original findings of fact; 3) erred in prohibiting Stone from presenting evidence of damages; 4) erred in denying Stone's motion to treat the allegations in her complaint as a claim for violation of KRS 403.300 and erred in its refusal to offer instructions on the same; 5) erred in its refusal to admit into evidence the custodial report of Glass, as well as Glass's underlying notes and data; 6) erred in its finding that Stone was not entitled to taxable costs; and 7) erred in denying Stone's motion for refusal. On cross-appeal, Glass argues, among other things, that as a court-appointed social worker, she was entitled to quasi-judicial immunity from suit. Therefore, Glass argues that the trial court erred by denying her motion for directed verdict and not giving her immunity. We agree that Glass was entitled to immunity.

It has long been the established rule that a witness, even if he knowingly gives false testimony, is entitled to absolute immunity from civil damages. Lawson v. Hensley, Ky.App., 712 S.W.2d 369 (1986). It is clear, therefore, that Glass is immune from suit arising from her testimony in court. The issue presented in this case is, however, whether a social worker appointed by the court to perform a custody evaluation can, nevertheless, be sued for professional malpractice or outrageous conduct with regards to the procedures she used which gave rise to the testimony given in court.

Kentucky recognizes the concept of quasi-judicial immunity. Dugger v. Off 2nd, Inc., Ky.App., 612 S.W.2d 756 (1980). However, Kentucky case law does not address the issue of quasi-judicial immunity for social workers who provide custody evaluations. Other jurisdictions have addressed this issue, and differ as to whether persons appointed by the court to perform custody evaluations are entitled to such immunity. For example, in Elling v. Graves, 94 Ohio App.3d 382, 640 N.E.2d 1156 (1994), a husband sued a psychologist who was appointed by the court to perform psychological evaluations of the parties, alleging that the psychologist's negligence in performing the evaluations resulted in an award of custody of the children to the wife. The Ohio Court of Appeals stated that the appellant could not pursue a civil action based upon the statements made by the psychologist in court, or in his report, because the statements made in the report and in the testimony were part of and relevant to a judicial proceeding, and therefore protected by absolute immunity. However, the Court stated the...