Contract – Foster care – Immunity

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Where plaintiff foster parents brought suit against the defendant Department of Children and Families after a foster child placed with them sexually assaulted their minor daughter, the complaint is not barred by sovereign immunity.

Dismissal judgment reversed.

“… Under the written foster care agreement between the department and the plaintiff parents, the department had agreed to provide them with sufficient information about any child proposed for placement to enable them ‘knowledgeably [to] determine whether or not to accept the child.’ As the parents later discovered, however, the department was aware at the time it placed the child in the plaintiffs’ home that the child had a history as both a victim and a perpetrator of sexual abuse, but did not disclose that information to the parents before placing him in their home. The plaintiffs filed a complaint against the department, claiming negligence and breach of contract. At issue on appeal is a judgment of the Superior Court dismissing the plaintiffs’ complaint on the ground that their claims are barred by sovereign immunity, G.L.c. 258, section10(j) (section10[j]). …

“The motion judge concluded that the plaintiffs’ claims for negligence and breach of contract are barred by the Massachusetts Tort Claims Act, G.L.c. 258 (MTCA), and specifically by section10(j) thereof. …

“… section10(j) bars any claim based upon a public employer’s act or failure to act to prevent harm resulting from a condition or situation, including the wrongful act of a third party, unless the condition or situation was ‘originally caused‘ by the public employer. … The exclusion of liability is, however, subject to the saving provision of section10(j)(1), in circumstances where the claim is ‘based upon explicit and specific assurances of safety or assistance, beyond general representations that investigation or assistance will be or has been undertaken, made to the direct victim or a member of his family or household by a public employee, provided that the injury resulted in part from reliance on those assurances.’

“To fall within the saving provision of section10(j)(1), an ‘explicit’ assurance must be ‘a spoken or written assurance, not one implied from the conduct of the parties or the situation,’ and to be ‘specific’ ‘the terms of the assurance must be definite, fixed, and free from ambiguity.’ …

“In the present case, the foster care agreement between the department and the parents contained an explicit and specific assurance that the department would provide the parents with sufficient information about a foster child proposed for placement in their home to allow them ‘knowledgeably [to] determine whether or not to accept the child.’ That assurance, made to the parents, is unambiguous; though the assurance does not describe the precise contours of the information the department would furnish, its general expression is understandable in light of the variable nature of the kind of information that might relate to a particular child (and a prospective foster parent’s evaluation of whether to accept that child), and the character of the information is adequately described by reference to its purpose. If the plaintiffs’ allegations are proven, the department violated its contractual commitment by failing to provide the parents with information known to it, and plainly material to the parents’ evaluation of whether to accept placement of the foster child in their home. Moreover, based on the allegations in the complaint the injuries to the parents’ daughter resulted at least in part from the parents’ reliance on the department’s assurances. We conclude that the plaintiffs’ claims fall within the saving provision of section10(j)(1), and thus are not barred by section10(j). The judgment dismissing the plaintiffs’ complaint is reversed, and the case is remanded to the Superior Court for further proceedings.”

Rhea R., et al. v. Department of Children and Families (Lawyers Weekly No. 11-004-20) (12 pages) (Green, C.J.) The case was heard by John T. Lu, J., on a motion for judgment on the pleadings. Gregory A. Hession for the plaintiffs; Gregory Schmidt for the defendant (Docket No. 18-P-1568) (Jan. 16, 2020).

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