MILLER V MARTIN AND THE DEPARTMENT OF SOCIAL SERVICES, STATE OF LOUISIANA AND METHODIST HOME FOR CHILDREN [2002] CC 0670 LOUISIANA SUPREME COURT
VICARIOUS LIABILITY
FACTS:-
The Claimant was the mother of two children, CVM who was born in July 1989 and CM, a male who was born in February 1987. She alleged that the Defendants were liable for injuries sustained by her children. From 1994 to 1996, the State of Louisiana was given legal and physical custody of her children, and they were placed in the foster home of the Martins. It was alleged that their foster father sexually abused CVM and physically abused CM, and that the State was negligent in failing to properly screen, investigate, train, supervise and monitor the foster parents, as well as failing to investigate reports of abuse from its foster children. Furthermore it was alleged that the State was strictly liable and vicariously liable to the Claimants. The Methodist Home for Children was added to the action later, as it was alleged that they had a contract with the State to share the responsibility for screening, investigating, approving and/or supervising the Martins as foster parents. The Defendants applied to strike out the case but this was opposed by the Claimant, who relied on two cases:-
The Methodist Home for Children’s application was allowed and they were no longer in the action. However the issue of whether the State could be held to be vicariously liable for abuse inflicted by foster parents was allowed to go before the Supreme Court of Louisiana.
HELD:-
Justice Kimball (expressing the view of the majority of the court) said that in the case of Vonner a five year old child in the legal custody of the State was beaten to death by his foster mother. The Supreme Court of Louisiana held that the State was vicariously liable for the tortious acts of the foster parents insofar as they breached the Departments duty to ensure the well-being of children in its custody. The court based its decision that the State was vicariously liable for the foster parents’ tortious acts on the fact that Louisiana law imposed a non-delegable duty upon the State to provide for the well being of a child in its custody.
The Supreme Court had begun its analysis by looking at the definition of “custody.” This meant the control of the actual physical care of the child and included the right and responsibility to provide for the physical, mental, moral and emotional well-being of the child and all other rights and responsibilities of a parent toward his child except those pertaining to custody. Therefore if the State was given custody of children, it became directly responsible for their care and well-being. The State had chosen to fulfil its custodial responsibility by entering into a foster home contract with the foster parents as permitted by statute. However the relevant statute did not authorise the State to divest itself of the responsibilities of custody by such contracts. The law did not authorise the State to delegate its legal responsibility to care for children in its custody.
The children of the state were its most precious resource. The ultimate duty of care in this case fell on the State and was non delegable.
“Custody” related to those rights and responsibilities as exercised either by a child’s parent or parents or by a person or organization granted custody by a court of competent jurisdiction. It did not exist by virtue of mere physical possession of a child.
Therefore when the State was awarded legal custody of a child, the law imposed upon the State the duty of care and protection of the child. Having determined the custodial duty placed upon the State, the court had now to determine whether the legislature intended to change the nature of the duty that the court had previously determined to be non-delegable. Previously the law did not allow the State to divest itself of its custodial responsibility, and it had not changed. Underlying the rationale in the case of Vonner was the recognition of the state’s policy regarding the importance of children. The very purpose of placing children in the state’s custody was to protect those children who were not adequately cared for by their natural parents. Thus, once the State obtained custody of a child, the law imposed upon the State the ultimate duty of care, which was non-delegable.
Kimball J considered the non delegable duty of protection. A master or other principal might be liable, although without personal fault, for conduct of his servants or agents, whether or not they were acting in the scope of their employment. It was difficult to suggest any criterion by which the non-delegable character of such duties might be determined, other than the conclusion of the courts that the responsibility was so important to the community that the employer should not be permitted to transfer it to another.
In cases such as these, once the State was granted legal custody of children in need of care, its custodial duty to those children was so great that it could not be delegated to foster parents. Thus if foster parents failed in their own duty and abused the children, the Department was vicariously liable for those acts.
Thus if the State undertook a non-delegable custodial duty such that it became vicariously liable when foster parents intentionally abused children in its custody. This was not affected by the role that the Methodist Home for Children played in placing the children.
Victory J dissented from the majority of the court. He took the view that Vonner was wrongly decided. The vast majority of states had determined that a state was liable only for its own negligence. This imposition of vicarious liability was unjustified and unfounded and would impose a burden on the state far in excess of that imposed on parents for protection of their children. A parent might hire a nanny, carry out all the relevant checks but then find that their child had been abused by that nanny. Did that make the parent vicariously liable? There was nothing in the legislation that indicated that the legislature intended to impose a duty of care more stringent than that imposed on parents.
VICARIOUS LIABILITY
FACTS:-
The Claimant was the mother of two children, CVM who was born in July 1989 and CM, a male who was born in February 1987. She alleged that the Defendants were liable for injuries sustained by her children. From 1994 to 1996, the State of Louisiana was given legal and physical custody of her children, and they were placed in the foster home of the Martins. It was alleged that their foster father sexually abused CVM and physically abused CM, and that the State was negligent in failing to properly screen, investigate, train, supervise and monitor the foster parents, as well as failing to investigate reports of abuse from its foster children. Furthermore it was alleged that the State was strictly liable and vicariously liable to the Claimants. The Methodist Home for Children was added to the action later, as it was alleged that they had a contract with the State to share the responsibility for screening, investigating, approving and/or supervising the Martins as foster parents. The Defendants applied to strike out the case but this was opposed by the Claimant, who relied on two cases:-
- Vonner v State through Department of Public Welfare 273 So.2d 242 (La.1973)
- Cathey v Bernard 467 So.2d 0 (La.App.1 Cir.1985)
The Methodist Home for Children’s application was allowed and they were no longer in the action. However the issue of whether the State could be held to be vicariously liable for abuse inflicted by foster parents was allowed to go before the Supreme Court of Louisiana.
HELD:-
Justice Kimball (expressing the view of the majority of the court) said that in the case of Vonner a five year old child in the legal custody of the State was beaten to death by his foster mother. The Supreme Court of Louisiana held that the State was vicariously liable for the tortious acts of the foster parents insofar as they breached the Departments duty to ensure the well-being of children in its custody. The court based its decision that the State was vicariously liable for the foster parents’ tortious acts on the fact that Louisiana law imposed a non-delegable duty upon the State to provide for the well being of a child in its custody.
The Supreme Court had begun its analysis by looking at the definition of “custody.” This meant the control of the actual physical care of the child and included the right and responsibility to provide for the physical, mental, moral and emotional well-being of the child and all other rights and responsibilities of a parent toward his child except those pertaining to custody. Therefore if the State was given custody of children, it became directly responsible for their care and well-being. The State had chosen to fulfil its custodial responsibility by entering into a foster home contract with the foster parents as permitted by statute. However the relevant statute did not authorise the State to divest itself of the responsibilities of custody by such contracts. The law did not authorise the State to delegate its legal responsibility to care for children in its custody.
The children of the state were its most precious resource. The ultimate duty of care in this case fell on the State and was non delegable.
“Custody” related to those rights and responsibilities as exercised either by a child’s parent or parents or by a person or organization granted custody by a court of competent jurisdiction. It did not exist by virtue of mere physical possession of a child.
Therefore when the State was awarded legal custody of a child, the law imposed upon the State the duty of care and protection of the child. Having determined the custodial duty placed upon the State, the court had now to determine whether the legislature intended to change the nature of the duty that the court had previously determined to be non-delegable. Previously the law did not allow the State to divest itself of its custodial responsibility, and it had not changed. Underlying the rationale in the case of Vonner was the recognition of the state’s policy regarding the importance of children. The very purpose of placing children in the state’s custody was to protect those children who were not adequately cared for by their natural parents. Thus, once the State obtained custody of a child, the law imposed upon the State the ultimate duty of care, which was non-delegable.
Kimball J considered the non delegable duty of protection. A master or other principal might be liable, although without personal fault, for conduct of his servants or agents, whether or not they were acting in the scope of their employment. It was difficult to suggest any criterion by which the non-delegable character of such duties might be determined, other than the conclusion of the courts that the responsibility was so important to the community that the employer should not be permitted to transfer it to another.
In cases such as these, once the State was granted legal custody of children in need of care, its custodial duty to those children was so great that it could not be delegated to foster parents. Thus if foster parents failed in their own duty and abused the children, the Department was vicariously liable for those acts.
Thus if the State undertook a non-delegable custodial duty such that it became vicariously liable when foster parents intentionally abused children in its custody. This was not affected by the role that the Methodist Home for Children played in placing the children.
Victory J dissented from the majority of the court. He took the view that Vonner was wrongly decided. The vast majority of states had determined that a state was liable only for its own negligence. This imposition of vicarious liability was unjustified and unfounded and would impose a burden on the state far in excess of that imposed on parents for protection of their children. A parent might hire a nanny, carry out all the relevant checks but then find that their child had been abused by that nanny. Did that make the parent vicariously liable? There was nothing in the legislation that indicated that the legislature intended to impose a duty of care more stringent than that imposed on parents.