Horridge v. St. Mary's County Department of Social Services

WILNER, Judge. Maryland law requires any person having reason to believe that a child has been subjected to abuse or neglect to make a fairly detailed report to either the local department of social services (DSS), which is a unit of the State Department of Human Resources and therefore a State agency, or an appropriate law enforcement agency. The law requires DSS, promptly after receiving such a report, to make a “thorough investigation” in order to protect the health, safety, and welfare of the child. Part of that requirement is the directive that, if the report is of physical or sexual abuse, DSS must, within 24 hours, “see the child,” attempt to have an on-site interview with the child’s caretaker, and decide on the safety of the child.

The principal questions before us are whether (1) the statutory obligation to conduct a thorough investigation and take appropriate steps to protect the child creates a civil duty on the part of DSS to the child who is the subject of a report of abuse, and (2) if so, and subject to the State Tort Claims Act, liability exists on the part of the State or individual social workers if harm ensues to a child because of a negligent ¹⁷⁵ breach of that duty. We shall answer both questions in the affirmative. BACKGROUND In an amended complaint filed in the Circuit Court for Anne Arundel County, plaintiff, Eric Horridge, alleged that, between December, 1999, and February, 2000, he made eight reports to the St. Mary’s County DSS of physical abuse being inflicted on his nineteen-month-old son Collin by Collin’s mother or her boyfriend, that a neighbor also reported that Collin was being abused, that DSS failed to make a thorough investigation and take steps to protect Collin, as required by law, and that, as a result of that failure, Collin remained in mortal danger and, in fact, was beaten to death by his mother or her boyfriend eight days after the last report was made and ignored. The complaint charged the State and two DSS social workers, Briana Shirey and Deborah Walsh, "with negligence, intentional infliction of emotional distress on Collin, and depriving Collin of his State Constitutional right to procedural and substantive due process, and it added a count against the State for negligent selection, supervision, and retention of Ms. Shirey and Ms. Walsh.

The court dismissed the complaint as failing to state a cause of action upon which relief can be granted. Its decision was ultimately grounded on its conclusion that no duty was owed to Collin by any of the defendants and that, even if a duty were owed to him, the breach of that duty was not the proximate cause of the harm that ensued. Horridge appealed, and we granted certiorari prior to proceedings in the Court of Special Appeals. Because the complaint was dismissed on the ground that it failed to state a cause of action, the issues before us are purely ones of law.

We must assume the truth of all well-pled factual allegations in the complaint, as well as any reasonable inferences that may be drawn from those allegations. Adam-son v. Correctional Medical, 359 Md. 238, 246 , 753 A.2d 501, 505 (2000); Muthukumarana v. Montgomery County, 370 Md. ¹⁷⁶ 447, 474 , 805 A.2d 372, 388 (2002). Accordingly, we shall recite as fact that which, at this point, is merely alleged. Collin was born in Texas, in June, 1998, to plaintiff, Eric Horridge, and Tiffany Fairris.

In October, 1999, Ms. Fairris moved to St. Mary’s County, Maryland, along with Collin, his three-year-old sister, Erica, and Ms. Fairris’s boyfriend, Daniel Fowkes. Plaintiff remained in Texas. In December, 1999, he reported to “Defendants” that Collin was being abused. That abuse, the complaint alleges, “arose out of a series of telephone conversations that [Horridge] had with Tiffany Fairris during which she would physically abuse Collin while threatening Eric Horridge with never seeing his son again.” The complaint does not indicate what, if anything, DSS did in response to that initial report.

The two calls that are of particular importance were those that occurred later, in January and February, 2000. On or about January 24, 2000, during the course of a telephone call to Maryland, Horridge “heard Collin screaming and crying in the background because Tiffany Fairris was hitting him and had pushed him into a wall.” He “immediately contacted the Defendants and provided them with detailed information about the physical injuries that Collin was suffering.” Horridge also informed the defendants that Fairris abused drugs in the children’s presence, that she became more abusive when under the influence of drugs and alcohol, that she had another child in Texas who had been abused while in her care, that a Texas court had restricted her right of visitation with that child, and that Fairris had threatened to abuse Collin in retaliation for Horridge having initiated custody proceedings in Texas. On January 28, 2000 — four days after that call was received — the defendants “purported to conduct an on-site visit” with Collin, but, according to the amended complaint, failed to conduct a thorough investigation of the reported abuse. During the on-site visit, defendant Shirey observed circular bruising on Collin “that was consistent with the particulars of the abuse reported by [Horridge] to the Defendants, and which ¹⁷⁷ was inconsistent with normal toddler play,” but Shirey declined to remove Collin from the home, have a doctor examine him, monitor the home environment, or take any other action to protect Collin.

Instead, the defendants “purported to rely upon a statement, taken in the presence of the suspected abuser(s), from Collin, a nineteen-month-old toddler whose linguistic ability was limited to single words, in which he attributed his injuries to play activities.” On February 2, 2000, the Defendants closed the case without taking any further action. On or about February 17, 2000, Fairris informed Horridge that she would abuse Collin in retaliation for his reports of abuse. Horridge immediately reported that threat to the defendants, but they refused to investigate it. Instead, Shirey accused Horridge of being a “disgruntled parent” and told him that “she did not care about his report because the case was closed.” Walsh instructed him “not to call back again with a report of abuse concerning [Collin].” Apart from Horridge’s complaints, “a concerned neighbor with personal knowledge of abuse or neglect of [Collin], also made a report, at a time or times to be determined, to DSS that [Collin] was being abused or neglected,” but the defendants essentially ignored that report as well.

On February 25, 2000, Collin was beaten to death by Fairris or her boyfriend, Fowkes. The autopsy revealed that Collin died from multiple blunt force injuries, including “multiple abrasions and contusions of varying ages, scalp hemorrhage, lacerations of the liver, contusions of the right lung, lacerations of the pancreas, lacerations of the mesent[e]ry and mesenteric lymph nodes [membranes that connect the intestines to the dorsal abdominal wall], hemorrhage within the soft tissues of the anterior mediastinum [the space containing the heart and viscera of the chest, other than the lungs], perirenal adipose, pelvic soft tissues, and within the anterior diaphragm, multiple serosal contusions of the bowel, pulmonary edema and congestion.” The autopsy also revealed “numerous and significant wounds on his body that were more than seven days old,” including wounds “that were circular in appearance; ¹⁷⁸ wounds that are consistent with Collin being struck by an adult hand or knuckles and the reports by [Horridge] of physical abuse being inflicted on Collin by [Fairris or Fowkes].” The nine-count amended complaint stated four counts of negligence — two against the State (DSS) and two against Shirey and Walsh. In Count I, against DSS, the complaint noted the requirements set forth in Maryland Code, §§ 5-702 through 5-706 of the Family Law Article and in implementing regulations of the Department of Human Resources that require DSS to make a thorough investigation of reports of child abuse and to render appropriate service in the best interest of the child. It alleged that those statutory and regulatory obligations were the basis of a duty that DSS owed to Collin, “because as a child in a home where suspected abuse had been reported he was a member of the class specifically protected by law.” DSS knew, the complaint said, from the reports by Horridge and the neighbor and from their own observations, that Fairris and Fowkes were harming Collin and that it was reasonably foreseeable that the abuse would continue.

It breached its duty to Collin by (1) failing to protect him from known abuse, (2) failing to investigate reports of abuse properly and in compliance with statutory, administrative, and professional standards, (3) failing to provide services and follow-up monitoring after the initial home visit to minimize the risk of retaliatory abuse, (4) failing to properly investigate reports of abuse of Collin made after DSS had closed the case, and (5) failing to competently hire, train, and supervise Walsh and Shirey. Count II charged DSS with negligence based on a special relationship with Collin. It averred that DSS knew that Collin faced a special danger of abuse and it had “specifically proclaimed by word and deed its intention to protect him against that danger,” that, having undertaken to do so, it “acquired an affirmative duty to do so in a reasonably competent fashion,” and, for the reasons noted in Count I, failed to carry out that duty. Counts III and IV charged Walsh and Shirey with gross negligence — with breaching their statutory ¹⁷⁹ and common law special relationship duties to Collin willfully, wantonly, and with reckless disregard of Collin’s rights.

With an extreme paucity of supporting facts, Count V charged DSS with negligence in selecting, retaining, and supervising Walsh and Shirey. Apart from the allegations already noted, going to their negligence in pursuing the reports of abuse, Count V states only that DSS “knew or should have known by the exercise of diligence and reasonable care that Defendant[s] Shirey and Walsh were capable of inflicting harm upon Collin” and that it “failed to use proper care in selecting, supervising or retaining [them].” There are no averments regarding the professional qualifications of Shirey and Walsh, other than that they are licensed social workers; nor did Horridge allege the nature of any deficient supervision of them or how their selection and retention as employees was negligent. Counts VI and VII attempted to plead State Constitutional torts — a violation of Articles 19 and 24 of the Maryland Declaration of Rights. The theory of those Counts was that Collin had a Constitutionally protected property and liberty interest in the protection afforded him by the statutory and regulatory requirements previously noted and thus had a legitimate entitlement to receive the protective services mandated by those requirements — proper monitoring and supervision of his home, access to the courts for protection, truthful and accurate reporting of abuse to interested persons, and proper investigation of reported child abuse — all of which were denied him by the defendants, who were State actors.

Count VIII charged DSS and the two social workers with intentionally inflicting emotional distress upon Collin by their “callous indifference” in refusing to take appropriate action in light of the reports they had received. With respect to these eight counts, Horridge was apparently suing as the personal representative of Collin’s estate, to recover for the tortious conduct committed against Collin. In Count IX, Horridge sued on his own behalf for the wrongful ¹⁸⁰ death of Collin. He incorporated into that count all of the allegations previously pled.

In this appeal, Horridge has abandoned all but Counts I, II, and V — the negligence actions against the State (DSS). He urges that DSS did have a duty to protect Collin, once it received a credible report that the child was being abused, that the Circuit Court erred in deciding proximate cause on a motion to dismiss, and that the allegations of negligent supervision were sufficient to state a cause of action. DISCUSSION Negligent Supervision In Norfolk & Western Railroad Co. v. Hoover, 79 Md. 253, 262 , 29 A. 994, 995 (1894), we concluded that an employer owes a duty to its employees to use “reasonable care and caution in the selection of competent fellow servants, and in the retention in his service of none but those who are,” and that, if the employer fails in that duty and “an injury is occasioned by the negligence of an incompetent or careless servant,” the employer is liable to the injured employee “not for the mere negligent act or omission of the incompetent or careless servant, but for his own negligence in not discharging his own duty towards the injured servant.” In Evans v. Morsell, 284 Md. 160, 166-67 , 395 A.2d 480, 483-84 (1978), we extended that duty, and liability, to the public generally — not just to co-employees — at least with respect to the selection of employees who were expected to have contact with the public. We there quoted with approval the pronouncement from Fleming v. Bronfin, 80 A.2d 915, 917 (D.C.1951): “One dealing with the public is bound to use reasonable care to select employees competent and fit for the work assigned to them and to refrain from retaining the services of an unfit employee.

When an employer neglects this duty and as a result injury is occasioned to a third person, the employer may be liable even though the injury was brought ¹⁸¹ about by the willful act of the employee beyond the scope of his employment.” Evans, supra, at 166 , 395 A.2d at 483 . Our own conclusion in Evans was that, “[wjhere an employee is expected to come into contact with the public ... it has been held that the employer must make some reasonable inquiry before hiring or retaining the employee to ascertain his fitness, or the employer must otherwise have some basis for believing that he can rely on the employee.... The nature and extent of the inquiry that is needed will naturally vary with the circumstances.” Id. at 166-67 , 395 A.2d at 484 . There is a rebuttable presumption that an employer has used due care in hiring the employee.

Id. at 165 , 395 A.2d at 483 , citing Norfolk & Western Railroad Co., supra, 79 Md. at 263 , 29 A. at 996 . See also Cramer v. Housing Opportunities Comm,’n, 304 Md. 705 , 501 A.2d 35 (1985); Henley v. Prince George’s County, 305 Md. 320 , 503 A.2d 1333 (1986). We have already recounted the allegations in the amended complaint in support of the negligent selection, training, and retention count. They are woefully inadequate to state a cause of action.

There are no allegations that Shirey and Walsh were professionally or personally unqualified for the positions they held or that, if they were unqualified, DSS was or should have been aware of that fact. The only averment in that regard is that they were licensed social workers which, if anything, suggests that they were at least professionally qualified. There are no allegations that they had acted in an incompetent or unprofessional manner previously or that, if they had done so, DSS was or should have been aware of it. There are no allegations, other than bald, conclusory statements, that they were improperly trained or improperly supervised.

In Scott v. Jenkins, 345 Md. 21, 28 , 690 A.2d 1000, 1003 (1997), we pointed out that, although we had abandoned the formalities of common law pleading, our Rules do require a pleading to “allege facts, if proven true, sufficient to support each and every element of the asserted claim.” Maryland ¹⁸² Rule 2-303(b) requires a pleading to contain “such statements of fact as may be necessary to show the pleader’s entitlement to relief or ground of defense.” We confirmed in Scott that, in a negligence action, a complaint must “allege, with certainty and definiteness, facts and circumstances sufficient to set forth (a) a duty owed by the defendant to the plaintiff, (b) a breach of that duty and (c) injury proximately resulting from that breach.” Id. at 28 , 690 A.2d at 1003 , quoting from Read Drug & Chemical Co. v. Colwill Constr. Co., 250 Md. 406, 412 , 243 A.2d 548, 553 (1968). Merely stating that a duty existed, or that it was breached, or that the breach caused the injury does not suffice, and that is all that appears in the complaint with respect to Count V. That count was properly dismissed. Negligence: Duty As noted, the actions against Shirey and Walsh personally, based on allegations of gross negligence, are not pursued in this appeal.

Because the St. Mary’s County DSS is a State agency and Shirey and Walsh are State personnel (see Walker v. Human Resources, 379 Md. 407 , 842 A.2d 53 (2004)), any action for simple negligence is properly brought against the State under the State Tort Claims Act (Maryland Code, title 12, subtitle 1 of the State Government Article). The elements of a cause of action in negligence are well-established. To state a claim, the plaintiff must allege facts demonstrating “(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” Remsburg v. Montgomery, 376 Md. 568, 582 , 831 A.2d 18, 26 (2003), quoting from Muthukumarana v. Montgomery Co., supra, 370 Md. at 486 , 805 A.2d at 395 . As noted in Remsburg, 376 Md. at 582 , 831 A.2d at 26 , we have adopted Prosser and Keeton’s characterization of “duty” as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another,” and, in determining whether a duty exists, have considered such things as, ¹⁸³ “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.” Id. at 583 , 831 A.2d at 26 , quoting from Ashburn v. Anne Arundel Co., 306 Md. 617, 627 , 510 A.2d 1078, 1083 (1986), quoting, in turn, from Tarasoff v. Regents of Univ. of California, 17 Cal.3d 425, 131 Cal.Rptr. 14 , 551 P.2d 334, 342 (1976).

In Jacques v. First Nat’l Bank, 307 Md. 527, 534 , 515 A.2d 756, 759 (1986), we consolidated some of that into two considerations: “the nature of the harm likely to result from a failure to exercise due care, and the relationship that exists between the parties.” See also Bobo v. State, 346 Md. 706, 714-15 , 697 A.2d 1371, 1375-76 (1997). As a general proposition, “a private person is under no special duty to protect another from criminal acts by a third person, in the absence of statutes, or of a special relationship.” Scott v. Watson, 278 Md. 160, 166 , 359 A.2d 548, 552 (1976); Valentine v. On Target, 353 Md. 544, 551-52 , 727 A.2d 947, 950 (1999). Horridge has pled both — a duty imposed by statute (Count I) and a duty imposed by virtue of a special relationship (Count II), but we need deal only with the statutory context pled in Count I. The relevant statutes are those contained in title 5, subtitle 7 of the Family Law Article (FL), §§ 5-701 through 5-714. In the law itself, the Legislature declared that the purpose of that subtitle, captioned “Child Abuse and Neglect,” was “to protect children who have been the subject of abuse or neglect by: (1) mandating the reporting of any suspected abuse or neglect; (2) giving immunity to any individual who reports, in good faith, a suspected incident of abuse or neglect; (3) requiring prompt investigation of each reported suspected ¹⁸⁴ incident of abuse or neglect; (4) causing immediate, cooperative efforts by the responsible agencies on behalf of children who have been the subject of reports of abuse or neglect; and (5) requiring each local department [of social services] to give the appropriate service in the best interest of the abused or neglected child.” (Emphasis added).

FL § 5-702. To achieve that purpose, FL §§ 5-704 and 5-705 require anyone who has reason to believe that a child has been subjected to abuse or neglect to notify either DSS or the appropriate law enforcement agency. The report may be oral or in writing and, insofar as reasonably possible, it must include the name, age, and home address of the child, the name and home address of the child’s parent or other person responsible for the child, the whereabouts of the child, the nature and extent of the abuse or neglect, and any other information that would help determine the cause of the abuse or neglect and the identity of the person responsible for it. See FL §§ 5-704(c) and 5-705(d).

The report, in other words, must be specific, so that the recipient can identify and locate the child and have some basis for launching an investigation. To encourage persons to make these reports, § 5-708 provides immunity from both civil liability and criminal penalty for any person who makes or participates in making such a report. As noted, § 5-706 requires DSS to respond to a report of abuse. Section 5-706(a) provides, in relevant part, that “[pjromptly after receiving a report of suspected abuse or neglect ... the local department or the appropriate law enforcement agency, or both, if jointly agreed on, shall make a thorough investigation of a report of suspected abuse to protect the health, safety, and welfare of the child or children.” 1 (Emphasis added).

Section 5-706(b) requires DSS, “[w]ithin 24 hours after receiving a report of suspected physi ¹⁸⁵ cal or sexual abuse,” to “(1) see the child; (2) attempt to have an on-site interview with the child’s caretaker; (3) decide on the safety of the child, wherever the child is, and of other children in the household; and (4) decide on the safety of other children in the care or custody of the alleged abuser.” The investigation must include “a determination of the nature, extent, and cause of the abuse” and, if abuse is verified, a determination of the identity of the persons responsible for it, a determination of the name, age, and condition of any other child in the household, an evaluation of the parents and the home environment, and a determination of any other pertinent facts and any needed services. FL § 5-706(c). To the extent possible, the investigation must be completed within ten days after receipt of the first notice of the suspected abuse. Within that 10-day period, DSS must make a preliminary report of its findings to the local State’s Attorney, and, within five business days after completion of the investigation, it must make a “complete written report of its findings” to the State’s Attorney.

See FL § 5-706(g), (h), and (i). Based on its findings and any treatment plan, DSS is required to “render the appropriate services in the best interests of the child, including, when indicated, petitioning the juvenile court on behalf of the child for appropriate relief, including the added protection to the child that either commitment or custody would provide.” (Emphasis added). FL § 5-710. These statutory requirements are supplemented by regulations adopted by the Department of Human Resources.

CO-MAR 07.02.07.05 requires DSS to establish a process for ensuring that a report of suspected child abuse from any source is immediately directed to its child protective service unit. It requires DSS to have staff on call 24 hours a day, seven days a week, to “receive and take appropriate action on reports of suspected child abuse” and to ensure that the public has “a means of access to