HomeMy WebLinkAbout97-4669 CivilSETH FITZGERALD ROBBINS,:
a minor, by ERIN ROBBINS
and KERRY ROBBINS, his
parents and natural guardians,
and ERIN ROBBINS and
KERRY ROBBINS, in their own
right,
Plaintiffs
Vo
CUMBERLAND COUNTY
CHILDREN AND YOUTH
SERVICES, THE COUNTY OF
CUMBERLAND, GARY I.
SHUEY, Individually and in his
Official Capacity as Agency
Administrator for Cumberland
County Children and Youth
Services, DIANE RUPP,
Individually and in her Official
Capacity as Case Worker Super-
visor for Cumberland County
Children and Youth Services,
CHRISTINA RUNYON,
Individually and in her Official
Capacity as Case Worker for
Cumberland County Children
and Youth Services,
WENDY B. HOVERTER,
Individually and in her Official
Capacity as Program Director
for Cumberland County Children
and Youth Services, and
DARLENE ORR, Individually
and in her official capacity as
Program Director for
Cumberland County Children
and Youth Services,
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
Defendants
Vo
SUSAN FITZGERALD,
Additional Defendant
NO. 97-4669 CIVIL TERM
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFFS' COMPLAINT
BEFORE HOFFER. P.J.. and OLER, J.*
ORDER OF COURT
d
AND NOW, this l~day of January, 1999, after careful consideration of Defendants'
preliminary objections to Plaintiffs' complaint, and for the reasons stated in the
accompanying opinion, the preliminary objections are sustained and Plaintiffs' complaint is
dismissed as to Defendants.
BY THE COURT,
~W-esley Oler, J(~., J. U
Richard B. Druby, Esquire
Metzger, Wickersham, Knauss & Erb, P.C.
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 17110-0300
Attorney for Plaintiffs
Richard P. Mislitsky, Esquire
Saidis, Shuff& Masland
26 West High Street
Carlisle, PA 17013
Attorney for Defendants
* Guido, J., did not participate in the consideration or disposition of this case.
SETH FITZGERALD ROBBINS,:
a minor, by ERIN ROBBINS :
and KERRY ROBBINS, his :
parents and natural guardians, :
and ERIN ROBBINS and :
KERRY ROBBINS, in their own :
right, :
Plaintiffs
CUMBERLAND COUNTY :
CHILDREN AND YOUTH :
SERVICES, THE COUNTY OF :
CUMBERLAND, GARY I. :
SHUEY, Individually and in his :
Official Capacity as Agency :
Administrator for Cumberland :
County Children and Youth :
Services, DIANE RUPP, :
Individually and in her Official :
Capacity as Case Worker Super- :
visor for Cumberland County :
Children and Youth Services, :
CHRISTINA RUNYON, :
Individually and in her Official :
Capacity as Case Worker for :
Cumberland County Children :
and Youth Services, :
WENDY B. HOVERTER, :
Individually and in her Official :
Capacity as Program Director :
for Cumberland County Children :
and Youth Services, and :
DARLENE ORR, :
Individually and in her official :
official capacity as Program :
Director for Cumberland :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY,PENNSYLVANIA
CIVIL ACTION - LAW
County Children and Youth
Services,
Defendants
Vo
SUSAN FITZGERALD,
Additional Defendant
NO. 97-4669 CIVIL TERM
IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS
TO PLAINTIFFS' COMPLAINT
BEFORE HOFFER, P.J., and OLER, J.~
OPINION and ORDER OF COURT
Oler, J., January , 1999.
In this civil case a child, by his adoptive parents, and the adoptive parents, have sued
a county, a county agency, and several county employees as the result of injuries allegedly
inflicted upon the child by his natural mother. The natural mother has been joined as an
additional defendant.
The allegations of the complaint suggest that Defendants failed to timely recognize
a personality disorder in the mother known as Munchausen Syndrome by Proxy.
"Munchausen Syndrome," according to Plaintiffs,
is a type of personality disorder in which the subject is eager to
be the object of attention and enjoys describing symptoms of
disease and presenting clinically believable pictures of acute
illness. Munchausen Syndrome by Proxy is a form of
Munchausen Syndrome in which a parent, usually the mother,
causes a child to have symptoms of disease in order for the
Guido, J., did not participate in the consideration or disposition of this case.
parent to gain attention.2
Plaintiffs' complaint contains nine counts, five of which charge federal civil rights
violations, one of which asserts violations of the Pennsylvania Constitution and the
remainder of which set forth claims for violation of a duty to protect, infliction of emotional
distress and punitive damages. For disposition at this time are preliminary objections in the
nature of demurrers3 to Plaintiffs' complaint, filed by Defendants.
For the reasons stated in this opinion, Defendants' preliminary objections will be
sustained and Plaintiffs' complaint will be dismissed as to Defendants.
STATEMENT OF FACTS
Plaintiffs' complaint in this case was filed on April 2, 1998. Its factual allegations
may be summarized as follows:
Plaintiffs are Seth Fitzgerald Robbins (date of birth December 14, 1991) and his
adoptive parents, Erin Robbins and Kerry Robbins.4 Defendants are Cumberland County,s
an agency of the county known as Cumberland County Children and Youth Services,6 the
Plaintiffs' Brief in Opposition to Defendants' Preliminary Objections, at 8 n.1.
In the alternative, Defendants' preliminary objections seek a more specific pleading.
Plaintiffs' complaint, paragraph 1.
Plaintiffs' complaint, paragraph 3.
Plaintiffs' complaint, paragraph 2.
3
administrator of the agency,7 two program directors of the agency,8 a casework supervisor
of the agency,9 and a caseworker of the agency,l° Additional Defendant Susan Fitzgerald is
the natural mother of the minor plaintiff,x~
In 1995, Additional Defendant Fitzgerald was living with and raising her three sons,
of whom the three-year-old minor plaintiff was the middle child, in Silver Spring Township,
Cumberland County, Pennsylvania.~2 As the result of the presentment of the older child at
a hospital with a second ann fracture in two days in February, 1995, the agency received a
referral and assigned the defendant caseworker to investigate?
The caseworker, accompanied by a township police officer, visited the Additional
Defendant's home on March 13, 1995.TM The investigation did not lead the caseworker to
believe that the child was the subject of abuse, the agency's file was closed and no criminal
charges were brought.15
7 Plaintiffs' complaint, paragraph 4.
s Plaintiffs' complaint, paragraphs 7-8.
9 Plaintiffs' complaint, paragraph 5.
~0 Plaintiffs' complaint, paragraph 6.
~l Plaintiffs' complaint, paragraph 10.
~2 Plaintiffs' complaint, paragraphs 10, 12, 15, 17.
~3 Plaintiffs' complaint, paragraphs 10-12.
~4 Plaintiffs' complaint, paragraph 15.
~5 Plaintiffs' complaint, paragraph 16.
4
The file was reopened when the agency learned that the minor plaintiff's other brother
sustained an arm fracture on March 28, 19957 The agency engaged the services of a
physician at the Hershey Medical Center and forwarded x-rays of the fractures to her for
review; the doctor recommended that a more thorough medical investigation be undertaken
in the event that additional fractures were incurred,l?
The first injury to the minor plaintiff occurred on June 2, 1995, in the form of a closed
head injury, multiple contusions and abrasions, and an arm fracture.~8 The minor plaintiff
was presented to a different hospital from that to which his brothers had been taken,~9 and
the agency's knowledge of this incident, if any, is not specified in the complaint.
At some point prior to June 19, 1995, the agency's caseworker made a second visit
to the Additional Defendant's home? This investigation again did not cause the caseworker
to believe that the children's mother was physically abusive, and the file was again closed?
A fair inference to be drawn from the complaint is that the caseworker failed to discern that
the Additional Defendant was afflicted with Munchausen Syndrome by Proxy,22 and that
~6 Plaintiffs' complaint, paragraphs 17-18.
17 Plaintiffs' complaint, paragraph 18.
18 Plaintiffs' complaint, paragraph 19.
~9 Plaintiffs' complaint, paragraph 19.
20 Plaintiffs' complaint, paragraph 20.
2~ Id.
22 Plaintiffs' complaint, paragraph 55.
injuries to her offspring which generated sympathy for her had actually been inflicted by her
for that purpose?
On August 29, 1995, the minor plaintiff's younger brother suffered a fatal seizure?
About two weeks later the agency effected the removal of the minor plaintiff and his older
brother from the home?
In the interim, several events occurred which precipitated the agency's action. On the
date of the brother's death, the county coroner reported the death to be suspicious and
ordered an autopsy;26 on the same day, the agency commenced its own investigation into the
death? On the following day, the agency received a report that the deceased child had
suffered from seizures in the past, and had sustained a broken arm in the recent past? The
next day, the caseworker visited the Additional Defendant's home for further investigation;29
23
24
Additional Defendant's children. Plaintiffs' complaint, paragraphs 29-33.
suggested in the complaint that the agency was aware of these incidents.
25 Plaintiffs' complaint, paragraph 52.
26 Plaintiffs' complaint, paragraph 37.
27 Plaintiffs' complaint, paragraph 36.
28 Plaintiffs' complaint, paragraph 3 8.
29 Plaintiffs' complaint, paragraph 40.
See note 2 supra and accompanying text.
Plaintiff's complaint, paragraphs 34-35.
In the interim, according to Plaintiffs' complaint, other injuries had occurred to two of the
However, it is not
on September 1, 1995, she requested medical records on all three of the children;3° an
additional home visit was scheduled by the caseworker for September 12, 1995.3~
On September 12, 1995, the minor plaintiff suffered a seizure.32 An emergency
meeting of a multi-disciplinary team within the agency resulted in the prompt withdrawal of
the children from the Additional Defendant's control.33
As the investigation continued, and notwithstanding additional evidence tending to
show that the Additional Defendant might have induced the seizures by means of suffocation
with pillows,34 the agency permitted her to visit with the minor plaintiff, over an unspecified
period of time.3s It is not suggested, however, that the visits were unsupervised or that the
minor plaintiff was subjected to abuse during any of the visitations.
The minor plaintiff suffered "physical injury, emotional and mental distress and
anguish, embarrassment and humiliation, and will, in the future, continue to undergo such
mental distress, anguish, embarrassment and humiliation," as a result of the incidents and
3o Plaintiffs' complaint, paragraph 41.
31 Plaintiffs' complaint, paragraph 45.
32 Plaintiffs' complaint, paragraph 47. The visit by the caseworker had been rescheduled at
the Additional Defendant's request. Id.
33 Plaintiffs' complaint, paragraphs 52-53.
34 Plaintiffs' complaint, paragraphs 61, 63, 65, 67.
35 Plaintiffs' complaint, paragraphs 60, 62, 64, 66, 68-71.
7
injuries recited? He "has undergone much pain, suffering, inconvenience, loss of enjoyment
of life and loss of life's pleasures and will in the future continue to suffer such losses.''37
Both he and his adoptive parents have incurred, and will incur, medical and other expenses
by reason of the incidents and injuries?
Count I of Plaintiffs' complaint asserts a civil rights claim under Section 1983 of Title
42 of the United States Code, based upon an alleged deprivation of liberty, the right to be
free from physical harm, and the right to procedural and substantive due process, arising out
of a "special relationship" between Defendants and the minor plaintiff. Count II asserts a
civil rights claim under Section 1983 based upon the aforesaid deprivations of rights, arising
out of a "state-created danger" to the minor plaintiff.
Count III asserts a civil rights violation under Section 1983 against all defendants
except the caseworker, based upon the aforesaid deprivations of rights, due to a failure to
properly train and supervise. Count IV asserts a civil rights violation under Section 1983
against these defendants based upon the aforesaid deprivations of rights, due to a failure to
obtain information as required by the Child Protective Services Law.
Count V asserts a civil rights violation under Section 1983 against the individual
defendants "in their individual capacities." This claim is based upon the aforesaid
36 Plaintiffs' complaint, paragraph 76.
37 Plaintiffs' complaint, paragraph 77.
38 Plaintiffs' complaint, paragraph 75.
deprivations of rights, due to Defendants' acts of "gross negligence, willful disregard for
and/or deliberate indifference to [the minor plaintiff's] safety and the safety of [his]
brothers."
Count VI advances a claim for violations of the Pennsylvania Constitution against all
defendants. This claim is predicated upon a deprivation of the minor plaintiff's "rights
guaranteed to him [under the Pennsylvania Constitution] including, but not limited to, his
right to be free from physical harm and his right to procedural and substantive due process
in violation of Article I, Section 1, Article I, Section 9, and Article I, Section 26 and other
relevant provisions of the [Pennsylvania] Constitution."
Count VII asserts a "cause of action under common law," against all defendants,
based upon a poor performance of a service undertaken to protect the minor plaintiff, leaving
him "in a worse position than when [they] took charge of him." Count VIII asserts a claim
for infliction of emotional distress against all defendants. Finally, Count IX purports to
assert an independent cause of action for punitive damages against all defendants.
Defendants, as noted previously, have filed preliminary objections in the nature of
demurrers to the various counts of Plaintiffs' complaint. The matter was argued on June 24,
1998.
DISCUSSION
Generalprinciples of law. Preliminary objections in the nature of a demurrer may be
sustained and the complaint dismissed where it appears that the claims of a plaintiff against
a defendant lack merit as a matter of law. Philmar Mid-Atlantic, Inc. v. York Street
Associates II, 389 Pa. Super. 297, 302, 566 A.2d 1253, 1255 (1989). "A complaint should
be dismissed [on a demurrer] only in clear cases .... "Graham v. Pinckiney, 125 Pa. Commw.
233,235, 557 A.2d 60, 61 (1989).
In the case of public servants whose duties involve the exercise of judgment and
discretion, public policy considerations militate against subjecting the employees to a risk
of personal liability for alleged errors of performance except in extreme cases. "[T]he
purpose [of this policy is] to alleviate the fear that every policy decision will subject them to
lawsuits .... When the nature of a public servant's decision may not be measured against a
predictable standard of care, the possibility of litigation may tend to discourage the making
of clear choices." Costopoulos v. Gibboney, 134 Pa. Commw. 263,268, 579 A.2d 985,988
(1990) (state troopers), appeal denied, 527 Pa. 619, 590 A.2d 759 (1991).
The sound exercise ofjudgrnent by public servants is fostered by an atmosphere "free
of the chilling effect that fear of unpredictable personal liability almost certainly would
impose .... "Simmons v. Cohen, 111 Pa. Commw. 267, 287, 534 A.2d 140, 149 (1987). In
this context, policies protective of public servants are intended to benefit the public, not the
servant. See generally McKibben v. Schmotzer, 700 A.2d 484 (Pa. Super. Ct. 1997).
The particular susceptibility of county child services workers to accusations of
wrongful conduct whether they do or do not act to separate a child from his or her parents
has been noted by the United States Supreme Court. DeShaney v. Winnebago County
10
Department of Social Services, 489 U.S. 189, 203, 109 S. Ct. 998, _, 103 L. Ed. 2d 249, 263
(1989). It is with an understanding of the public benefit to be derived from constraints upon
personal liability in certain governmental
Plaintiffs' claims should be undertaken.
Plaintiffs 'federal civil rights claims.
situations that an analysis of the validity of
The first five counts of Plaintiffs' complaint are
brought under Section 1983 of Title 42 of the United States Code. This section provides, in
pertinent part, as follows:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ... subjects, or causes
to be subjected, any citizen of the United States or other person
within the jurisdiction thereof, to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress .... 39
This provision derives from post-Civil War legislation.4° Its precursor was known as
the Ku Klux Klan Act,41 for obvious reasons associated with its initial purpose. It has been
held by the United States Supreme Court to be inapplicable in a case of the type subjudice.
In DeShaney v. Winnebago County Department of Social Services,42 a minor plaintiff
and his mother brought a civil rights action under Section 1983 against a county, county
39 42 U.S.C. {}1983 (1979).
40 Annot., 43 L. Ed. 2d 833,838 (1976).
41 Id.
42 489 U.S. 189, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989).
11
agency, and several agency employees, arising out of personal injuries inflicted upon the
child by his father. "The complaint alleged that respondents had deprived [the child] of his
liberty without due process of law, in violation of his rights under the Fourteenth
Amendment, by failing to intervene to protect him against a risk of violence at his father's
hands of which they knew or should have known.''43
The Court accepted for the sake of argument the proposition that "the state
functionaries [in DeShaney] ... stood by and did nothing when suspicious circumstances
dictated a more active role for them''44 and that as a consequence the minor plaintiff
"suffered brain damage so severe that he [was] expected to spend the rest of his life confined
to an institution for the profoundly retarded.''45 In concluding that the acts and omissions of
defendants had not constituted a deprivation of substantive due process rights, however, the
Court noted that,
[a]lthough the liberty protected by the Due Process Clause
affords a protection against unwarranted government
interference ..., it does not confer an entitlement to such
governmental aid as may be necessary to realize all the
advantages of that freedom.46
Stated more bluntly, as a matter of constitutional law "a State's failure to protect an
43 DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 193, 109
S. Ct. 998, _, 103 L. Ed. 2d 249, 257 (1989).
44 ./d. at 203, 109 S. Ct. at _, 103 L. Ed. 2d at 263.
45 Id. at 193,109 S. Ct. at _, 103 L. Ed. 2d at 257.
46 Id. at 196, 109 S. Ct. at _, 103 L. Ed. 2d at 259 (quoting Harris v. McRoe, 448 U.S. 297,
317-18, 100 S. Ct. 2671, _, 65 L. Ed. 2d 784, 805 (1980).
12
individual against private violence simply does not constitute a violation of the Due Process
Clause.''47 In a child abuse case of the present type, neither a theory that the defendants
47 Id. at 197, 109 S. Ct. at _, 103 L. Ed. 2d at 259.
With respect to procedural due process, it has been observed in this context by several
federal and state courts that "process is not an end in itself," and that a procedural deficiency does
not generally rise to the level of a federal constitutional violation in the absence of a resultant
deprivation of a substantive right. See, e.g., Doe v. District of Columbia, 93 F.3d 861,866-67 (D.C.
Cir. 1996); Doe v. Milwaukee, 903 F.2d 499, 503, (7th Cir. 1990); Wells v. Maryland, 642 A.2d 879,
887 (Md. Ct. Spec. App. 1994). No such violation of a substantive constitutional right is present in
this case. See id.; cf. Olim v. Wakinekoma, 461 U.S. 238, 1035 S. Ct. 1741, 71 L. Ed. 2d 813 (1983).
The inadvisability of elevating state-mandated procedures to constitutional rights per se has
been explained as follows:
It is by now well-established that in order to demonstrate a property
interest worthy of protection under the fourteenth amendment's due
process clause, a party may not simply rely upon the procedural
guarantees of state law or local ordinance .... Courts have observed
the confusion that would result from elevating state-mandated
procedure to the status of a constitutionally protected property
interest .... Constitutionalizing every state procedural right would
stand any due process analysis on its head.
Doe v. Milwaukee, 903 F.2d 499, 503 (7th Cir. 1990) (citations omitted).
With respect to an alleged failure to train and supervise a caseworker, the same difficulty
with Plaintiffs' constitutional claim under Section 1983 may be noted. See Friedman v. City of
Overland, 935 F. Supp. 1015, 1018 (E.D. Mo. 1996) (municipal liability under Section 1983 on
failure to train theory or custom and policy theory held dependent on existence of liability on
underlying substantive constitutional claim).
In addition, "an inadequacy of ... training may serve as the basis of section 1983 liability
only where the failure to train amounts to deliberate indifference to the rights of persons with whom
municipal employees come into contact." City of Canton v. Harris, 489 U.S. 378, 388, 109 S. Ct.
1197, 1204, 103 L. Ed. 2d 412, 426 (1989) (emphasis added). A fair review of the facts alleged in
Plaintiffs' complaint does not admit of a conclusion that the defendants charged with a failure to
train and supervise were deliberately indifferent to the fate of the minor plaintiff.
Finally, a failure to train and supervise an employee will not support a finding of liability
13
created the danger which resulted in the minor plaintiff's injuries48 nor a theory that they
formed a special relationship with himn9 will serve to withdraw Plaintiffs' federal civil rights
claims from the ambit of the DeShaney holding.
The DeShaney court expressly held that the state could not be considered to have
created the danger to the minor plaintiff under circumstances even more compellings° than
those of the present case.sI The court also rejected the argument that a special relationship,
analogous to that of a jailer and prisoner, and productive of a protective obligation under the
federal constitution, could be discerned in an agency's involvement of the present type.s2
under Section 1983 where the employee is not himself or herself also liable. See Kis v. County of
Schuylkill, 866 F. Supp. 1462, 1473-74 (E.D. Pa. 1994); Calenti v. Sheeler, 765 F. Supp. 227, 232
(E.D. Pa. 1991). No such underlying liability under Section 1983 on the part of the caseworker is
perceived in this case by the court.
48 The "state-created danger" theory of liability under Section 1983 is discussed, although
not adopted, in Mark v. Borough of Hatboro, 51 F.3d 1137, 1149-53 (3d Cir. 1995). Under this
theory, where a state actor has affirmatively created a situation which he or she knows to be
dangerous and which would not have existed without the state action, injury inflicted upon a victim
by a third party who utilized the opportunity provided by the state may be considered the product of
a violation of constitutional dimension. Id. at 1152.
49 The "special relationship" theory of liability under Section 1983 is discussed in DeShaney
v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S. Ct. 988, 103 L. Ed. 2d
249 (1989). Under this theory, the assumption of certain relationships by the state with individuals,
typically of an involuntary and custodial nature, will generate constitutional rights to certain
protective measures. Id at 197-201,109 S. Ct. at _, 103 L. Ed. 2d at 259-63.
so In DeShaney, the defendants had assumed custody of the child from the third-party abuser,
and then returned him to that person. DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189, 201,109 S. Ct. 988, _, 103 L. Ed. 2d 249, 262-63 (1989).
Id.
Id. at 198, 109 S. Ct. at _, 103 L. Ed. 2d at 259-60.
14
In reaching these conclusions, which are controlling as to Plaintiffs' federal civil
rights claims in the instant case, the Supreme Court acknowledged that
[j ]udges and lawyers, like other humans, are moved by a natural
sympathy in a case like this to find a way for [the minor plaintiff
and his guardian] to receive adequate compensation for the
grievous harm inflicted upon them. But [as a matter of
constitutional law] before yielding to that impulse, it is well to
remember that the harm was inflicted not by the state ..., but by
[the child's parent].
DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 202-03, 109
S. Ct. 998, _, 103 L. Ed. 2d 249, 263 (1989).
"It may well be," the Court added, "that, by voluntarily undertaking to protect [the
child] against a danger it concededly played no part in creating, the State acquired a duty
under state tort law to provide him with adequate protection against that danger." The issue
of state tort law will be the subject of a later section of this opinion; on the basis of the
foregoing discussion, however, Plaintiffs' civil rights claims under Section 1983 of Title 42
of the United States Code must be dismissed.
Plaintiffs' Pennsylvania constitutional claims. Plaintiffs concede that the analysis of
their state constitutional claims will be the same as that of their federal constitutional
claims? In view of the discussion in the preceding section, Plaintiffs' claims under the
Pennsylvania constitution will therefore be dismissed.
Plaintiffs'state tort claims. Under Section 323 of the Restatement (Second) of Torts,
53 Plaintiffs' Brief in Opposition to Defendants' Preliminary Objections, at 21.
15
it is provided as follows:
One who undertakes, gratuitously or for consideration, to
render services to another which he should recognize as
necessary for the protection of the other's person or things, is
subject to liability to the other for physical harm resulting from
his failure to exercise reasonable care to perform his
undertaking, if
(a) his failure to exercise such care increases the
risk of such harm, or
(b) the harm is suffered because of the other's
reliance upon the undertaking?
Although adopted in Pennsylvania for some purposes,ss Section 323 of the Restatement is
not applicable to government entities, "which act in the course of governing and not
otherwise." Smith v. Southeastern Pennsylvania Transportation Authority, 707 A.2d 604
(Pa. Commw. Ct. 1998).
Under Section 324 of the Restatement (Second) of Torts, it is provided as follows:
One who, being under no duty to do so, takes charge of
another who is helpless adequately to aid or protect himself is
subject to liability to the other for any bodily harm caused to him
by
(a) the failure of the actor to exercise reasonable
care to secure the safety of the other while within
the actor's charge, or
(b) the actor's discontinuing his aid or protection,
54 Restatement (Second) of Torts {}323 (1965).
55 Morin v. Traveler's Rest Motel, Inc., 704 A.2d 1085 (Pa. Super. Ct. 1997), appeal denied,
1998 Pa. Lexis 814 (Pa. 1998).
16
if by so doing he leaves the other in a worse
position than when the actor took charge of him.56
The court has not found a Pennsylvania case in which this section has resulted in the
imposition of liability upon a government entity?
Under Section 46 of the Restatement (Second) of Torts, it is provided, in pertinent
part, as follows:
One who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject
to liability for such emotional distress, and if bodily harm to the
other results from it, for such bodily harm?
However, "[t]he tort of outrage, intentional infliction of emotional distress, based on
Section 46 of the Restatement (Second) of Torts has not been adopted nor made part of the
law of Pennsylvania." Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36, 43 n. 1,633
A.2d 605, 608 n. 1 (1993), appeal denied, 538 Pa. 663,649 A.2d 666 (1994).
Punitive damages are a form of relief,59 awardable where tortious conduct is
"outrageous, because of defendant's evil motive or his reckless indifference to the rights of
others." FeM v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747 (1984). "Under
Pennsylvania law there is no separate cause of action for punitive damages." Murray v.
56 Restatement (Second) of Torts §324 (1965).
57 As will be discussed hereafter in the text, Plaintiffs' state tort claims are not viable by
reason of immunities provided for in the Political Subdivision Tort Claims Act, regardless of
whether the causes of action would otherwise be sustainable.
58 Restatement (Second) of Torts §46(1) (1965).
59 Mansmann v. Turnan, 970 F. Supp. 389, 404 (E.D. Pa. 1997).
17
Gencorp, Inc., 979 F. Supp. 1045, 1051 (E.D. Pa. 1997).
With respect to liability for torts, Pennsylvania political subdivisions are provided
with immunity, subject to several enumerated exceptions (not here relevant), under the
Political Subdivision Tort Claims Act. See Act of October 5, 1980, P.L. 693, §221 (1), as
amended, 42 Pa. C.S. §§8541, 8542. On the basis of this governmental immunity, Plaintiffs
concede that their state tort claims against Defendant Cumberland County and Defendant
Cumberland County Children and Youth Services should be dismissed.6°
Official immunity is also provided to employees of political subdivisions under the
Political Subdivision Tort Claims Act to the same extent as the immunity applicable to the
political subdivision,6~ unless the tortious act "constituted a crime, actual fraud, actual malice
or willful misconduct.''62 In the present case, it is not suggested that the acts of any of the
individual defendants constituted a crime or actual fraud.
Nor does the complaint employ the terms "malice" or "willful misconduct.''63 More
importantly, although "[m]alice, intent, knowledge, and other conditions of mind may be
averred generally" in a pleading,64 the attendant material facts pled must support such an
60 Plaintiffs' Brief in Opposition to Defendants' Preliminary Objections, at 22.
6~ Act of October 5, 1980, P.L. 693, §221(1), 42 Pa. C.S. §8545.
62 Act of October 5, 1980, P.L. 693, §221(1), 42 Pa. C.S. §8550.
63 The complaint does, however, use terms (frequently in the alternative) such as "intentional
acts," "recklessly," "deliberate indifference," "willful disregard," and "gross negligence."
64 Pa. R.C.P. 1019(b).
18
averment. Waklet-Riker v. Sayre Area Education Association, 440 Pa. Super. 494, 656 A.2d
138(1995).
Malice, in the context of official immunity, has been equated with "malignant feelings
... or ... a wicked disregard of the interests of others." Ammlung v. City of Chester, 224 Pa.
Super. 47, 56-57, 302 A.2d 491,496 (1973).
"Willful misconduct [under the Political Subdivision Tort Claims Act] ... mean[s]
conduct whereby the actor desired to bring about the result that followed or at least was
aware that it was substantially certain to follow, so that such desire can be implied. In other
words, the term 'willful misconduct' is synonymous with the term 'intentional tort.'" King
v. Breach, 115 Pa. Commw. 355, 366-67, 540 A.2d 976, 981 (1988) (citations omitted).
In the present case, a fair reading of the factual allegations regarding the Defendants'
conduct, and the reasonable inferences to be drawn therefrom, if believed, do not support a
conclusion that any of the individual defendants acted with malignant feelings or a wicked
disregard of the interests of the minor plaintiff. Nor do they support a conclusion that any
such defendant acted with an intent that the minor plaintiff be injured, or with an awareness
that his injuries were substantially certain to occur. At most, the complaint presents a series
of events in which an error of judgment by a defendant in failing to recognize an unusual
personality disorder in the minor plaintiff's mother resulted in the most tragic of
consequences.
Under these circumstances, the individual defendants are entitled to immunity under
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the Political Subdivision Tort Claims Act. For all the foregoing reasons, the Plaintiffs'
complaint must be dismissed as to Defendants.
ORDER OF COURT
AND NOW, this 13'1 ~ay of January, 1999, after careful consideration of Defendants'
preliminary objections to Plaintiffs' complaint, and for the reasons stated in the
accompanying opinion, the preliminary objections are sustained and Plaintiffs' complaint is
dismissed as to Defendants.
BY THE COURT,
Richard B. Druby, Esquire
Metzger, Wickersham, Knauss & Erb, P.C.
3211 North Front Street
P.O. Box 5300
Harrisburg, PA 17110-0300
Attorney for Plaintiffs
Richard P. Mislitsky, Esquire
Saidis, Shuff& Masland
26 West High Street
Carlisle, PA 17013
Attorney for Defendants
:rc
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