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Oliveaux v. St. Francis Medical Center12/15/2004
ror, Oliveaux urges the district court erred in ruling, prior to trial and without examining the evidence, that CPS was entitled to qualified immunity as a matter of law, and that the court erroneously charged the jury regarding qualified immunity. He concedes that two statutes appear to confer qualified immunity. He contends, however, that the "discretionary act immunity" of La. R.S. 9:2798.1 does not apply because CPS made no showing that its employees' conduct was based on policy considerations, and the caseworker immunity of La. Ch. C. arts. 611 and 612 G does not apply because it extends only to caseworkers, not to the public entities by whom they are employed. In support he cites Hawkins v. State, 543 So. 2d 1052 (La. App. 4 Cir. 1989), and Todd v. State, 96-535 (La. App. 5 Cir. 11/26/96), 685 So. 2d 313, rev'd, 96-3090 (La. 9/9/97), 699 So. 2d 35. Since CPS was not entitled to statutory immunity, Oliveaux contends that the district court should have charged the jury that in order to find liability, the plaintiff had to prove only ordinary (not gross) negligence. Lenard v. Dilley, 2001-1522 (La. 1/15/02), 805 So. 2d 175. By supplemental brief, Oliveaux argues this error was significant, as the jury asked the court for a further explanation of the term "gross negligence."
CPS replies that in Todd v. State, supra, the supreme court recognized qualified immunity in favor of CPS in cases involving the removal of a child from his home by a social worker. It adds that lower courts have recognized CPS's qualified immunity in the context of civil rights claims under 42 U.S.C. § 1983. Arledge v. Sherrill, 32,189 (La. App. 2 Cir. 8/18/99), 738 So. 2d 1215, writ denied, 99-2713 (La. 12/10/99), 751 So. 2d 255; Mayronne v. Vaught, 94-2140 (La. App. 4 Cir. 4/13/95), 655 So. 2d 390. It submits that the trial testimony fully supports a finding that the caseworkers exercised discretionary acts within the course and scope of their lawful powers and duties as CPS agents. With this legal and factual background, CPS contends the jury charge regarding gross negligence was appropriate and not erroneous.
In Todd v. State, supra, the supreme court held that the duty of a child protection caseworker and the CPS is delineated by La. Ch. C. arts. 611 and 612, and by La. R.S. 9:2798.1, which provide in pertinent part:
Art. 611. Immunity from Civil or Criminal Liability
A. Any person who in good faith makes a report, cooperates in any investigation arising as a result of such report, or participates in judicial proceedings authorized under the provisions of this Chapter, or any caseworker who in good faith conducts an investigation, makes an investigative judgment or disposition, or releases or uses information contained in the central registry for the purpose of protecting a child, shall have immunity from civil or criminal liability that otherwise might be incurred or imposed.
Art. 612. Assignment of Reports for Investigation and Assessment
G. The Department of Social Services shall set priorities for case response and allocate staff resources to cases identified by reporters as presenting immediate substantial risk of harm to children. Absent evidence of willful or intentional misconduct or gross negligence in carrying out the investigative functions of the state child protection program, caseworkers, supervisors, program managers, and agency heads shall be immune from civil and criminal liability in any legal action arising from the department's decisions made relative to the setting of priorities for cases and targeting of staff resources.
§ 2798.1. Policymaking or Discretionary Acts or Omissions of Public Entities or their Officers or Employees<
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