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Floyd v. Department of Children and Families9/18/2003
had statutory immunity pursuant to section 39.203, Florida Statutes. However, the cause of action accrued in 1996, and section 39.203 did not come into being until 1998, when it replaced section 415.511. Ch. 98-403, ยง 33, Laws of Fla. Accordingly, the applicable version of the statute is section 415.511, Florida Statutes (1995), which provides in pertinent part:
(1)(a) Any person, official, or institution participating in good faith in any act authorized or required by ss . 415.502-415.514, or reporting in good faith any instance of child abuse to any law enforcement agency, shall be immune from any civil or criminal liability which might otherwise result by reason of such action.
Section 415.502 states that the legislative intent behind sections 415.502 to 415.514 "is to provide for comprehensive protective services for abused or neglected children . . . by requiring that reports of each abused or neglected child be made to the Department of Health and Rehabilitative Services [appellee's predecessor] in an effort to prevent further harm to the child or any other children living in the home . . . ." Appellee relies on Department of Health & Rehabilitative Services v. Dougherty, 700 So. 2d 77 (Fla. 2d DCA 1997), which held that the Department was immune pursuant to section 415.511(1)(a) in an action brought by parents alleging that their children had been improperly removed from their home due to the negligent investigation of a child abuse complaint. Appellant correctly responds that Dougherty is inapplicable.
Citing Yamuni, the court in Dougherty said that section 415.511(1)(a) protected the Department when "carrying out its statutory duties on behalf of the protected class, i.e., the allegedly abused child." Id. at 79. However, it also said that " overeign immunity [would] not apply . . . to persons or institutions that fail to carry out the protective measures." Id. As Dougherty clearly demonstrates, section 415.511(1)(a) was intended to protect those who might be overzealous in protecting children from potential abuse; it was not intended to protect those who fail to fulfill their duty to protect children. Because appellant alleged that appellee failed to fulfill its duty to carry out protective measures, appellee is not immune from liability pursuant to section 415.511(1)(a). Appellee's interpretation of section 415.511(1)(a) would turn the statutory scheme on its head by protecting the entity charged with protecting children (appellee) from actions by (or on behalf of) children alleging failure to fulfill that duty. See Yamuni, 529 So. 2d at 262 (rejecting the same argument made regarding section 827.07(7), the predecessor to section 415.511(1)(a)).
We conclude that the record demonstrates that genuine issues exist as to material facts, and that it does not demonstrate that appellee is entitled to a judgment as a matter of law. Accordingly, we reverse, and remand for further proceedings consistent with this opinion.
REVERSED and REMANDED, with directions.
KAHN and POLSTON, JJ., CONCUR.
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