DSS Can be Sued for Wrongful Death

Special Report - August 21, 2008
The North Carolina Court of Appeals has ruled that the Department of Social Services (DSS) can be sued for its failure to conduct statutorily mandated home assessments of child abuse that eventually result in the death of the child. The case, Christmas v. Cabarrus County, involved an 18-month old boy who was living with his mother and her boyfriend, when the Cabarrus County DSS received two different reports that the child had suffered physical injuries. DSS conducted two investigations and determined that the home was conditionally safe. Two weeks later, DSS received notice from a hospital physician that the child had suffered “non-accidental trauma.” Without an assessment of the mother, the DSS social worker determined that the child could be released back into the home and that an investigation would be performed a few days later. A DSS social worker attempted to investigate a week later, but the mother was not home. Two days after that, the child died from blunt trauma abdominal and head injuries. The mother’s boyfriend was charged and convicted of felony child abuse with serious bodily injury and second-degree murder, and the mother was charged with involuntary manslaughter.

Following the child’s death, the boy’s father brought a wrongful death action against the County, the County DSS, and the DSS social workers involved. The defendants sought to have the suit dismissed claiming immunity under the “public duty doctrine.”

In its August 19, 2008 ruling, the Court of Appeals stated: “The general common law rule, known as the public duty doctrine, is that a municipality and its agents act for the benefit of the public, and therefore, there is no liability for the failure to furnish police protection to specific individuals. This rule recognizes the limited resources of law enforcement and refuses to judicially impose an overwhelming burden of liability for failure to prevent every criminal act.”

The Court of Appeals, however, declined to extend the public duty doctrine to county DSS agencies, noting that the Supreme Court has only applied the doctrine to law enforcement agencies of local governments. It said that DSS had a statutory duty to conduct an assessment of the home once the report of abuse, neglect or dependency was made, and as a result, the court refused to dismiss the lawsuit.

North Carolina Family Policy Council attorney Tami Fitzgerald responded: “This case exposes DSS personnel to wrongful death lawsuits when they fail to perform their duties under statute. In this particular case, if DSS had performed an assessment of the home, this little boy might be alive today. Child abuse is a serious problem in our State, and state agencies set up to address this problem should be held to a high standard.”

Copyright © 2008. North Carolina Family Policy Council. All rights reserved.