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Busam v. Dep't of Mental Retardation2/11/2004
operation. GSM was the custodian of Joey, not MRDD. In short, the court cannot conceive of how a special relationship duty could arise where MRDD's contacts with the facility it licensed was limited to three or four visits per year.
{ } For the foregoing reasons, the court concludes that MRDD fulfilled any duty owed by it under the circumstances of this case. Accordingly, absent any duty or breach of duty, plaintiff cannot prevail on the negligence claims asserted in her complaint. As stated in Prosser, Palsgraf Revisited, supra, " ny number of considerations may justify the imposition of duty in particular circumstances, including * our continually refined concepts of morals and justice * and social judgment as to where the loss should fall." In this case, the court can find no circumstances which would require the imposition of a duty upon the state in its role as the licensing authority.
{ } However, even assuming that plaintiff could establish a duty owed and breached, the court further finds that she could not prevail because the evidence does not support a finding that any breach of such duty was the proximate cause of Joey's illness and death. Specifically, the evidence shows that sexual activity was not uncommon at GSM between residents, between residents and visitors, and between residents and staff. During Brother Finton's administration, The Brothers were notorious for hosting drinking parties in their private residence and for including small groups of residents in those events. Certain Brothers were known to drink heavily and to roam the halls visiting sleeping residents at night. Brother Finton died from AIDS. An employee, Dale Lamerson, also died from AIDS. There is some evidence that Joey may have had sexual contact with Lamerson. There is also evidence that Brother Declan repeatedly visited the residents' bedrooms, awakened them and performed sexual acts upon them. Overall, it appears that the majority of the sexual activity took place at night; however, the evidence shows that a lack of night watchmen was not a problem identified by licensing specialists. Thus, there is simply no persuasive evidence as to how, or by whom, Joey was abused and/or infected with HIV.
{ } Plaintiff states in her post-trial brief, under the heading "Causation" that: "It can easily be speculated that *." Upon consideration of all of the evidence, plaintiff's language is an apt summarization for this court: "speculation." Could the abuse have been prevented had there been adequate staff present at all times? Would the development and use of IHPs and day programs have made a difference? Would the parents or guardians have believed and acted upon the allegations had they been revealed sooner by MRDD? Although Joey was exposed to a horrific state of affairs at GSM, in the end, only speculation that can determine whether any act or failure to act on the part of MRDD was the proximate cause of his injury or death.
{ } For all of the foregoing reasons, judgment shall be rendered in favor of defendant.
{ } This case was tried to the court on the issue of liability. The court has considered the evidence and, for the reasons set forth in the decision filed concurrently herewith, judgment is rendered in favor of defendant. Court costs are assessed against plaintiff. The clerk shall serve upon all parties notice of this judgment and its date of entry upon the journal.
FRED J. SHOEMAKER Judge
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