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Court says parents can sue social workers for negligence
Craig Jarvis, Staff Writer
RALEIGH -- A Wake County couple whose daughter was molested by a foster child they had taken in can sue the social workers who placed him there for not disclosing that he had previously been sexually abused, the state's appellate court said Tuesday.
The NC Court of Appeals said the couple cannot sue the six Wake County social workers as individuals but can sue them in their official capacity as county employees. The couple can also sue the county's mental health and social services departments, as well as the new department they have since merged into, and each department's director, the court ruled.
The couple's attorneys, Elizabeth F. Kuniholm and Toni M. Benham of Raleigh, said they were thrilled with the ruling. Kuniholm said the social workers and the agencies they work for should be held accountable.
Michael R. Ferrell, the county's attorney, said the ruling simply returns the lawsuit to the early stages of the process. Whether or not the couple's claims are true hasn't been addressed yet, he noted.
Although the courts in North Carolina have held that police and some other public employees cannot be sued for negligence, there are exceptions.
The appellate court said there are legitimate questions about whether or not the exceptions apply in this case, and so it was premature for Superior Court Judge James C. Spencer Jr. to dismiss the couple's lawsuit.
Judge Robert C. Hunter wrote the opinion reversing the dismissal. Judges James A. Wynn Jr. and Ralph A. Walker concurred.
The first judge to hear the lawsuit, Spencer, had agreed with the county that even if the couple's allegations were true, this wasn't enough to sue under any recognized legal theory. But the appellate judges disagreed.
The couple - a Methodist minister and his wife - decided to become foster parents after learning that there was a shortage of suitable foster homes in North Carolina. They had one child of their own, a 2-year-old girl.
In 1993, they were trained and licensed and were waiting for a child who was 8 or younger. After a few months, one of the social workers told them she had a 12-year-old boy who she thought would be right for their home.
The boy was placed there that summer. Two months later, the parents discovered that the boy had molested their daughter. He was subsequently convicted of a sex crime for that assault, according to the lawsuit.
It turned out that the boy's sisters had been sexually abused at home while living with their parents, and that he might have seen the abuse. The boy was later sexually abused in the group home where he was placed, according to the lawsuit.
The couple claims that none of the social workers ever told them that, and in fact had reassured them their daughter would be safe.
Their lawsuit says the social workers and the agencies they work for should have disclosed the sex abuse in the boy's past, saying a child is highly likely to re-enact abuse on younger, more vulnerable children.
The lawsuit was thrown out before the county even filed a formal response to the allegations. In his argument before the appellate court in April, Ferrell didn't address the parents' charges but instead argued that the legal doctrine known as "public duty" protected the defendants.
That concept typically applies to police officers, and says they cannot be sued for negligence for failing to prevent a crime from happening. Case law has established exceptions to that rule, saying that sometimes police or other public employees have a special duty when they have promised someone protection.
For example, the NC Supreme Court ruled that a city and a school crossing guard could be sued in a wrongful-death case involving a child who had been struck by a car after the guard signaled that it was safe to cross the street.
The appellate court's opinion says that the question of whether the social service agencies and their employees had a special duty to protect the parents is something that the lawsuit can attempt to answer.
The court also explained that the NC Supreme Court has recently made a distinction between "public officials" and "public employees."
A public employee is someone who is supposed to carry out specific duties, and now can be sued for negligence if he fails. A public official, on the other hand, is a higher-ranking employee who has some discretion in carrying out the duties of office that are protected by law.
State law was rewritten to give county social services directors the power to delegate their authority to staff members, essentially making the subordinate a public official. Still, the appellate court said, a public official can be sued in some cases.
The significance of an employee being sued in an official rather than individual capacity is that his employer would be responsible for paying his legal bills.
© 1999 by The News & Observer Pub. Co. Reprinted with permission of The News & Observer of Raleigh, North Carolina. Reproduction does not imply endorsement.