Foster Family’s Claim Against State Child Services Department Was Not Barred by Massachusetts Governmental Tort Act

Maintaining a personal injury or wrongful death claim against a governmental entity can be difficult. In fact, there was once a time in which such claims were not allowed under the law. Nowadays, however, a Cape Cod personal injury lawsuit against the government may be possible in some situations, although it can be expected that the government will attempt to get the case dismissed, if at all possible. Even if the claim survives a motion to dismiss, there may be limitations on the amount of damages available to the plaintiff for his or her injuries. There may also be other procedural hurdles, including the requirement of formal notice within a relatively short period after the accident.

Facts of the Case

In a recent Massachusetts Appeals Court case, the plaintiffs were a mother, father, and minor child who sought compensation from the defendant, a state child services department, for injuries suffered by the minor child due sexual assault by a foster child whom the family had taken in. Although the placement was supposed to be short-term, the defendant left the foster child (a 12-year-old boy) in the plaintiff foster parents’ care for several months. Unbeknownst to the plaintiffs – but known by the defendant – the foster child had a history of both having been sexually abused himself and also being the perpetrator of sexual abuse.

After the minor child (a 5-year-old girl) disclosed that the foster child had sexually assaulted her, the plaintiffs filed suit against the defendant, claiming that the defendant had been negligent in placing the foster child with them and that the defendant had breached a contractual agreement under which the defendant had agreed to provide the plaintiffs with “sufficient information” about any proposed foster child to enable them to knowledgeably determine whether to accept the child.

The defendant filed a motion to dismiss the plaintiffs’ claims on the basis that their suit was barred by the principles of sovereign immunity as set forth in the Massachusetts Tort Claims Act, Massachusetts General Laws ch. 258  10(j). The trial court granted the motion and dismissed the plaintiffs’ case on the pleadings. They appealed.

The Decision of the Appeals Court

The appellate tribunal reversed the lower court’s ruling, opining that the trial court had been wrong to conclude that the plaintiffs’ negligence and breach of contract claims were barred under the Act. While § 10(j) was enacted with the purpose of abrogating the “public duty rule,” the statute did not bar all claims against public entities based on the wrongful act of a third party. Rather, the court noted that there are some situations in which liability may still lie. This includes instances in which there have been explicit and specific assurances of safety or assistance, provided that the injury resulted at least partially upon the plaintiff(s)’ reliance on those assurances.

Taking the factual allegations of the plaintiffs’ complaint as true for the sake of reviewing the lower court’s decision, the appellate court found that the foster care agreement between parties did contain an explicit and specific assurance that the defendant would provide the plaintiff with sufficient information about a foster child proposed for placement in their home to allow them knowledgeably determine whether or not to accept the child. The court of appeals found this assurance to the plaintiffs to be sufficient to place the plaintiffs’ claims fall within the saving provision of § 10 (j)(1) and thus not barred as argued by the defendant.

Talk to a Massachusetts Negligence Lawyer

To schedule an appointment with a Cape Cod personal injury attorney who can advise you about a possible negligence claim against a governmental entity, an individual, or a business, please call The Law Offices of John C. Manoog III, at 888-262-6664.

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