Wednesday, March 26, 2008

DHS owes a duty of care to Children it Investigates.

Kaho'ohanohano v. Dept. of Human Services (HSC March 20, 2008)

Background. A two-and-a-half-year-old child broke her leg while under the custody of her mother and her mother’s boyfriend. While DHS investigated the matter as to whether it was child abuse, it allowed the child to stay with the mother and boyfriend. Before finishing the first investigation, the child suffered life-threatening abdominal injuries. DHS later determined that it was indeed child abuse and custody went over to the father. The father sued DHS alleging negligence in failing to protect the minor, take timely custody, and conduct a reasonable and competent investigation. After a 16-day bench trial, the circuit court found DHS liable for negligence and the negligent infliction of emotional distress. Damages were apportioned jointly and severally among the mother, her boyfriend, and DHS.

So you want to sue the State, huh? Sovereign immunity means that the State cannot be liable unless it has relinquished immunity or consented to being sued. Bush v. Watson, 81 Hawai‘i 474, 481, 918 P.2d 1130, 1137 (1996). Such an exception is the State Tort Liability Act. Under HRS § 662-2, when a State employee commits a tort, the State is also liable “in the same manner and extent as a private individual under like circumstances.” The HSC calls this the private analog exception to sovereign immunity. The HSC read this exception to SI as a narrow one. The State is only liable for torts for which a private entity would be liable; it’s still immune to novel theories of liability.

DHS Liability arose from its Special Relationship to Children. The HSC, after examining cases in federal courts and other jurisdictions, held that the Kaho'ohanohanos demonstrated a private analog. In a negligence action, there must be a breach of a duty of care. Logically, this means that there must be a duty. The HSC agreed with the Kaho'ohanohanos and found that DHS had a duty to control a 3d party from harming the child. Normally, explained the HSC, there is no duty to protect people from the harm of another. Here, however, there was a “special relationship” between the child and DHS. Rest. Torts 2d § 315(b). From this special relationship arose the duty to prevent physical harm to the child.

Finding a duty from Legislation. The HSC then rejected DHS’s position that the Legislature clearly imposed no duty to protect children it investigates from harm. DHS maintained that there was no legislative intent or clear language showing that it must protect children from harm. The HSC, however, noted that the “foremost obligation” in interpreting statutes is to ascertain and give effect to the intention of the Legislature. It also noted that laws in pari materia (upon the same subject) must be construed “with reference to each other. What is clear in one statute may be called to aid to explain what is doubtful in another.” HRS § 1-16. The HSC examined the purposes and procedures of the Child Protective Act, HRS Ch. 587, which is designed to protect children from abuse, and authorizes DHS to investigate possible abuse of children, and provide immediate services to children being investigated, and make a clear and prompt decision as to whether the child is being abused. From these mandates, the HSC held that the Legislature created a “duty flowing to children specifically identified to DHS as being the subject of suspected abuse.”

Logic Prevails over plain Language? There appears to be no statute expressly stating that DHS owed a duty of care to children it investigates. Rather, there are entire chapters in the HRS explaining and mandating DHS to conduct investigations of child abuse, to evaluate whether there is abuse, and to act quickly when it determines that abuse exists. From these mandates, the HSC held that DHS owed a duty of care to children in question. The duty arose from an inference and with the in pari materia doctrine. But did the doctrine apply? After all, HRS § 1-16 allows a court to use the clear meaning of statute A to interpret statute B when statute B’s meaning is “doubtful” so long as both address the same subject. It seems that the meaning of statutes was not at issue, but rather whether the statutes spoke to a duty of care. In such a case, the clear meaning in the statutes were used to determine the meaning of not another statute, but to answer a legal question. This appears to be more of an exercise of logic based on the structure of the legislation than an orthodox application of the in pari materia doctrine (and the HSC does not say that it is an application of in pari materia, it merely quotes the doctrine).

Tort Liability for other Agencies? The HSC surveyed the legislation covering DHS and determined that the structure of the legislation and the mandates in that legislation have a legal effect that is not mentioned expressly in that legislation. It seems that this method of using statutes to answer difficult questions could apply to other agencies with investigative powers, like DLNR or the Dept. of Public Safety for instance.

Leave it to the Pros, the Standard of Care that is. Finding a duty is one thing, but whether the DHS breached that duty depends on the standard of care at work. DHS argued that, based on Youngberg v. Romeo, 457 U.S. 307 (1982), it is entitled to proper deference in exercising its professional judgment in dealing with the child. The HSC disagreed. First, Youngberg, where the US Sup. Ct. deferred to the "professional judgment" of an institution holding a profoundly retarded individual, did not apply. Second, because this was a negligence action, the applicable standard of care is measured against what a reasonable and prudent person would have done under the circumstances in determining whether the defendant breached its duty. Doe Parents No. 1, 100 Hawai‘i 34, 82, 58 P.3d 545, 593 (2002). The same degree of use, skill, knowledge, and experience of reasonably prudent professionals would apply here too. Similarly, the standard of care for a DHS social worker can be measured by the standards authorized by statute, regulations, and its guide given by DHS. The HSC also held that there was sufficient evidence showing a breach of the duty of care and legal causation, that is, the failure to intervene sooner was a substantial factor in the causation of the injuries.

Other Matters: NIED and Joint/Several Liability. After establishing a predicate physical injury to property or another person, plaintiffs may recover from negligent infliction of emotional distress when a reasonable person would be unable to adequately cope with the mental stress stemming from the circumstances. Doe Parents No. 1, 100 Hawai‘i at 69, 58 P.3d at 580. The HSC examined the findings of facts and found no error in finding DHS liable for NIED. The HSC also held that considerable amendments to joint and several liability statutes affecting the government-tortfeasor did not apply retroactively to divest the Kaho'ohanohanos of their substantive rights in this claim.

Justice Levinson’s Concurrence. Justice Levinson concurred with the result, but wrote separately to observe that he still disagreed with the decision in Lee v. Corregedore, 83 H. 154, 925 P.2d 324 (1996), which was cited by the majority in this case.

Justice Acoba’s Concurrence. Justice Acoba concurred and wrote separately because he believed that the better approach is to abandon physical injury as a predicate to NIED recovery and adopt generalized standards. Justice Acoba would prefer the HSC to find the standard articulated in Rodrigues v. State, 52 Haw. 156, 472 P.2d 509 (1970), which is essentially the same standard adopted by the majority sans the physical injury.

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