Williams v. Coleman

Decision Date06 July 1992
Docket NumberDocket No. 126124
Citation194 Mich.App. 606,488 N.W.2d 464
PartiesJennifer WILLIAMS, Personal Representative of the Estate of Nicole Williams, Plaintiff-Appellee, v. Rhonda COLEMAN and Janet Heyward, Defendants-Appellants.
CourtCourt of Appeal of Michigan — District of US

Julie H. Hurwitz, P.C. by Julie H. Hurwitz, and Theodore F. Spearman, P.C. by Theodore F. Spearman and Mark Granzotto, Detroit, for plaintiff.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., and Stewart H. Freeman and Margaret A. Nelson, Assts. Atty. Gen., for defendants.

Before GRIBBS, P.J., and SAWYER and FITZGERALD, JJ.

FITZGERALD, Judge.

Defendants appeal as of right a January 31, 1990, order denying their motions for judgment notwithstanding the verdict and a new trial in this wrongful death action, originally filed on May 25, 1982. 1 On August 21, 1989, a jury rendered a $900,000 verdict 2 for plaintiff. Defendants were foster-care social workers working for the Wayne County Department of Social Services. Pursuant to Sec. 623(1) of the Child Protection Law, 3 defendants were required to report child abuse and neglect to the protective services division of the DSS. Plaintiff, decedent's sister, brought suit under M.C.L. Sec. 722.633; M.S.A. Sec. 25.248(13), which provides for civil liability for failure to report child abuse or neglect. 4 We affirm.

FACTS

On March 4, 1981, twenty-three-month-old nicole Williams was found dead by police at her mother's residence. Nicole weighed twenty pounds and died of long-term nutritional deprivation or failure to thrive. Testimony revealed that although Nicole had been in the ninetieth percentile for height at the time of her birth, she was below the first percentile for her age group for both height and weight at the time of her death.

The record indicated that Josephine Williams, Nicole's mother, previously had four children removed from her custody because of her inability to care for them. Josephine Williams had a long history of hospitalizations and erratic behavior due to schizophrenia. DSS records indicated that attempts to reunite the older children with their mother were unsuccessful because of her ongoing mental health problems. Nicole, the fifth child, was born after the four older children had been removed from the mother's home. DSS workers knew that a fifth child was due, but their records contained no reference to Nicole until she was eight months of age, when plaintiff complained about her care to the DSS in December of 1979. At that time, defendant Coleman reported the concern to the protective services unit within the DSS, which investigated and found that although the conditions were marginal, Nicole was not neglected.

Plaintiff contends that defendants received additional reports of neglect both from herself and from Katie Edwards, a foster-care mother, and did not report those concerns to protective services. Plaintiff and Edwards evidently did not report their concerns directly to protective services because defendant Coleman advised them that she would act on their complaints. Two weeks before Nicole's death, Edwards talked with defendant Coleman about the poor care Nicole was receiving and her need to be cared for away from her mother. Other than the initial 1979 report, defendant Coleman and her supervisor, defendant Heyward, did not report any subsequent suspected problems to protective services, nor did they assess whether there was a need for foster-care placement.

Coleman testified that on the occasions that she saw Nicole she seemed adequately cared for. Coleman stated that she lost track of Mrs. Williams in March of 1980 and did not obtain her new address until after Nicole's death a year later. She attempted to find Williams through the client information system. Defendants claimed that no one else contacted them with complaints or concerns about Nicole, and they did not have a sufficient basis to warrant subsequent referrals to protective services after December of 1979.

I

We are presented with the question whether governmental immunity applies to foster-care workers where they fail to report child abuse or neglect. M.C.L. Sec. 722.623(1); M.S.A. Sec. 25.248(3)(1) 5 imposes a statutory duty on social workers and others to make a report when they have "reasonable cause to suspect child abuse or neglect." M.C.L. Sec. 722.633(1); M.S.A. Sec. 25.248(13)(1) 6 provides a civil cause of action for damages proximately caused by failure to report abuse or neglect against persons required to make reports. We find that whether this issue is analyzed from a statutory-construction and legislative-intent framework or from a Ross 7 immunity framework, the result is the same. Under the facts before us, the social workers were not immune.

Plaintiff first argues that the prescribed reporting mechanism in the Child Protection Law eliminates any choices related to reporting and any immunity defense that defendants might otherwise have. Defendants argue that they still must exercise some judgment in deciding how much information will give them reasonable cause to suspect abuse or neglect. Defendants also assert that although the Legislature created immunity for good-faith reporting, 8 it did not specifically limit any other immunity arising from sources other than the Child Protection Law. Plaintiff responds that the Legislature, by implication, rejected other forms of immunity when it made no provision for any other form of immunity in the Child Protection Law.

In its ruling on immunity, the trial court stated that immunity for a government employee was statutory and that the Child Protection Law imposed specific duties and liability that rendered defendants not immune. Defendants argue that the trial court erred in relying on the assumption that immunity for governmental employees was created by statute, because individual employee immunity was not at that time a creature of statute, but of the common law, as articulated in Ross v. Consumers Power Co. (On Rehearing), 420 Mich. 567, 363 N.W.2d 641 (1984). We agree. In 1984, before the Legislature's enactment of the tort reform amendments, the Supreme Court noted that whatever immunity that existed for public employees in Michigan was provided by the common law. Id. at 678-679, 363 N.W.2d 641. Defendants argue that the Child Protection Law must be strictly construed because common-law defenses such as immunity may not be abolished absent a clear legislative intent to do so. Rusinek v. Schultz, Snyder & Steele Lumber Co., 411 Mich. 502, 507-508, 309 N.W.2d 163 (1981). However, a statute must be construed sensibly and in harmony with the legislative purpose, id. 411 Mich. at 508, 309 N.W.2d 163; In re Cameron's Estate, 170 Mich. 578, 582, 136 N.W. 451 (1912), and statutes should be construed to effectuate their purpose, In re Barnhart Estate, 127 Mich.App. 381, 387, 339 N.W.2d 28 (1983). In addition, a remedial statute, such as the Child Protection Law, that attempts to protect the public health and general welfare should be liberally construed. Soap & Detergent Ass'n v. Natural Resources Comm., 415 Mich. 728, 740, 330 N.W.2d 346 (1982), citing 3 Sands, Sutherland Statutory Construction (4th ed.), Sec. 65.03, p. 163.

If the maxim expressio unius est exclusio alterius § applied to the Child Protection Law, plaintiff's argument that the specifics of the Child Protection Law negate governmental immunity for those persons required to report is reasonable. In Feld v. Robert & Charles Beauty Salon, 435 Mich. 352, 363, n. 11, 459 N.W.2d 279 (1990), the Court cited the interpretation of the maxim in 2A Sands, Sutherland Statutory Construction (4th ed.), Sec. 47.23, p. 194:

[Expressio unius est exclusio alterius ] is applied to statutory interpretation, where a form of conduct, the manner of its performance and operation, and the persons and things to which it refers are designated, there is an inference that all omissions should be understood as exclusions. "Where what is expressed in a statute is creative, and not in a proceeding according to the course of the common law, it is exclusive, and the power exists only to the extent plainly granted. Where a statute creates and regulates, and prescribes the mode and names the parties granted right to invoke its provisions, that mode must be followed and none other, and such parties only may act." The method prescribed in a statute for enforcing the rights provided in it is likewise presumed to be exclusive.

The statute prescribes that the social workers and others are required to report suspected child abuse or neglect. The reporting mechanism is designated, and the listed reporters are assured of immunity for good-faith reporting and are informed of the potential liabilities of failing to report. The list of persons required to report includes many persons who could be government employees. 9 By providing immunity for reporting, the Legislature by specific implication negated other forms of immunity these persons might have.

Even though the immunity status of governmental employees in 1981 was provided by the common law, the general language of the Child Protection Law reveals the Legislature's intent to apply the statute to the persons listed, regardless of their employment status. A review of the legislative history of the Child Protection Law reveals that the Legislature recognized the need to strengthen the reporting requirement in order to protect abused and neglected children. It was noted that there were many problems caused by delays in reporting incidents of child abuse and negligent under the prior law, which had not required prompt reporting and had required the reporting person to have the child suspected of being abused examined by a physician before reporting the abuse to the DSS. House Legislative Analysis, HB 4214, September 26, 1975. This requirement was...

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