Miss. Dep't. of Human Serv. v. S. W
| Docket Number: | 2005-CA-00227-COA Linked Case(s): 2005-CA-00227-COA2005-CT-00227-SCT |
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| Oral Argument: | 03-28-2007 | |
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| Court of Appeals: |
Opinion Link Opinion Date: 08-07-2007 Opinion Author: CARLTON, J. Holding: Affirmed in part; Reversed and Remanded in part |
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| Additional Case Information: |
Topic: Personal injury - Immunity - Section 11-46-9(1)(d) - Section 43-15-5 - Breach of duty - Amount of award - Section 11-46-15(1) Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Procedural History: Jury Trial Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 09-17-2004 Appealed from: Hinds County Circuit Court Judge: Winston Kidd Disposition: JUDGMENT ENTERED FOR DEFENDANT Case Number: 251-01-123CIV |
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| Party Name: | Attorney Name: | |||
| Appellant: | MISSISSIPPI DEPARTMENT OF HUMAN SERVICES |
JAMES P. STREETMAN
DAVID LEE GLADDEN |
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| Appellee: | S. W. | CARLTON W. REEVES J. DOUGLAS MINOR |
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| Topic: | Personal injury - Immunity - Section 11-46-9(1)(d) - Section 43-15-5 - Breach of duty - Amount of award - Section 11-46-15(1) |
| Summary of the Facts: | S. W. filed a negligence suit against the Mississippi Department of Human Services, alleging that DHS breached its statutory duties to him while he was in its care and custody, allowing him to be sexually abused by employees of the child care facilities in which he was placed. The trial judge, sitting without a jury, entered judgment against DHS in the amount of $750,000. DHS appeals. |
| Summary of Opinion Analysis: | Issue 1: Immunity DHS argues that the alleged negligent conduct was discretionary in nature and, therefore, immune from suit under section 11-46-9(1)(d). A duty is discretionary if the government actor is required to exercise his or her judgment or discretion in performing the duty. Section 43-15-5 requires DHS to administer or supervise all public children welfare services, and to provide for the care of dependant and neglected children in foster family homes or in institutions. To carry out these duties, DHS has developed formal guidelines and procedures outlined in detail in the DHS’s policy manual. The manual generally requires weekly contact with a foster child during the first month of placement, and continuous monthly face to face visits with the child. Because DHS employees have no discretion to make less than the required contact, DHS’s duty to contact S. W. in accordance with the minimum mandatory directives of DHS regulations is ministerial in nature and the discretionary function exemption does not bar a cause of action for S. W.’s complaint of insufficient contact. The manual sets forth the procedure by which investigations of reported abuse are to take place. Generally, the social worker is required first to investigate the report and subsequently to decide whether the report is substantiated based on the results of the investigation. The manual requires, among other things, that children should be interviewed privately, separately, and in a non-threatening place, an unannounced visit is required to the residential facility for interview with the administrator, DHS review the facility’s policy and procedures, and the alleged perpetrator be interviewed. DHS has no discretion to prematurely terminate an investigation without fully performing the outlined duties; to do so violates specific mandatory directives. To this extent, the discretionary function exemption does not bar a claim against DHS for S. W.’s claim of insufficient investigation. DHS has the responsibility to secure dental, medical and psychological services for the children in their custody. DHS employees are required to call upon their own policy-based judgment to determine whether the child needs a particular service – in the instant case, mental health treatment. However, once the determination is made, DHS is ultimately required to ensure that the child receives the service. The duty to ensure that the child receives the needed service involves no policy-based judgment or discretion. Therefore, the discretionary function exemption does not bar S. W.’s claim for DHS’s failure to ensure that his medical needs were being met. Issue 2: Breach of duty DHS argues that monthly face-to-face contact is not required for children in their custody when these children are placed in a licensed child care facility such as CDU or SNIPS. The general requirement of monthly face-to-face contact is irreconcilably inconsistent with the provision which requires quarterly face-to-face contact. The provision requiring only quarterly face-to-face contact pertains specifically to children placed in a licensed child care facility; therefore, it controls. Thus, the court erred in finding that DHS was under a duty to make monthly face-to-face contact. However, this error was harmless because DHS failed to even make quarterly face-to-face contact with S. W. By making only two face-to-face contacts in nine months DHS breached its duty to care. DHS also argues that DHS and its employees conducted the ministerial act of investigation into the reported abuse, and in their discretion, determined that the allegations were unsubstantiated. While DHS is immune from liability arising from their discretionary act of deciding that the allegations were unsubstantiated, the decision whether to substantiate the report requires, as a precondition, that the DHS conduct investigation of the alleged abuse. DHS’s investigation was grossly inadequate. In derogation of DHS’s policy to interview the child privately, separately and in a non-threatening place, S. W. was interviewed in a group of persons. Additionally, the record contains no evidence that DHS complied with policy by making an unannounced visit to the residential facility to conduct and interview with the administrator, reviewing the facility’s policy and procedures, or interviewing the alleged perpetrators. Thus, the trial judge did not err in finding that DHS breached its duty to sufficiently investigate the reported abuse. Issue 3: Amount of award DHS argues that S. W. failed to produce sufficient evidence to support the trial judge’s award of $750,000 and that the award was in contradiction to the statutory limitations of section 11-46-15(1). The trial judge failed to disclose how he arrived at the $750,000 damage award. This information is crucial because the separate breaches identified by the trial judge occurred during two separate periods of time, each carrying a different statutory limitation of liability under subsection (1)(a) and (b). Under any calculation, the award of $750,000 is above the statutory limitation of section 11-46-15(1). Therefore, the case is reversed and remanded for a new trial on damages only. |
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