Cuyler, Gretchen v. United States ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-2298
GRETCHEN D. CUYLER, Special Administrator of
the Estate of Christian Cuyler, deceased,
Plaintiff-Appellee,
v.
UNITED STATES OF AMERICA,
Defendant-Appellant.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 98 C 3786—Blanche M. Manning, Judge.
____________
ARGUED FEBRUARY 26, 2004—DECIDED MARCH 30, 2004
____________
Before BAUER, POSNER, and KANNE, Circuit Judges.
POSNER, Circuit Judge. This is a suit for wrongful death
brought against the United States under the Federal Tort
Claims Act, which, with limitations that we can ignore,
makes the federal government liable for the torts of its em-
ployees to the same extent that they would be liable under
the law of the place where the tort was committed, in
this case Illinois. A trial in the district court resulted in a
judgment for the plaintiff for $4 million, from which the
government appeals.
2 No. 03-2298
In August of 1994, a woman named Higgs, babysitting for
the family of a Navy enlisted man named Norman who was
stationed at the Great Lakes Naval Base near Chicago,
abused Norman’s 14-month-old son. The abuse resulted in
injuries that required the child’s hospitalization at Great
Lakes Naval Hospital, a federal facility. The medical per-
sonnel at the hospital, who are federal employees, failed to
report the incident to the Illinois Department of Children
and Family Services, as required by the state’s Abused and
Neglected Child Reporting Act (ANCRA), 325 ILCS 5/1 et
seq. That it is a federal hospital that may or may not be sub-
ject to ANCRA is irrelevant to the government’s liability
under the tort claims act, for reasons explained in Carter
v. United States, 333 F.3d 791, 795 (7th Cir. 2003).
Higgs said that the child’s injuries had been caused by his
falling down “the steps,” presumably accidentally, but the
medical personnel should have realized that the child was
a victim of abuse rather than of accident. Indeed, they seem
to have been suspicious, and asked the child’s father
whether he suspected abuse. He said he didn’t know. They
asked him whether he wanted them to report the incident as
abuse, and he replied, “if that’s what you’re supposed to do,
do your job.” Mrs. Norman told her husband, “it doesn’t
look like [the child] fell down the steps; he was beat up,”
but it is unclear whether she told the medical personnel this.
The Act provides that any of a very long list of persons,
ranging from physicians to foster parents, homemakers, and
child-care workers and clearly encompassing the medical
personnel who examined the Norman child, “having
reasonable cause to believe a child known to them in their
professional or official capacity may be an abused child or
a neglected child shall immediately report or cause a report
to be made to the Department.” 325 ILCS 5/4. The statute
provides criminal and disciplinary sanctions for willful
No. 03-2298 3
violations, id., 5/4.02, but does not specify any purely civil
sanctions, such as damages or injunctive relief. The govern-
ment concedes that the medical personnel at Great Lakes
Naval Hospital violated the Act by failing to report possible
abuse of the Norman child.
Twenty-eight days after that incident, Higgs babysat
for another Navy family at Great Lakes Naval Base, the
Cuylers. Higgs abused the Cuylers’ child, inflicting injuries
that this time were fatal, and precipitating this lawsuit.
(Higgs, though convicted of involuntary manslaughter for
the death of the child, is not a defendant in this suit.) The
plaintiff argues that her child’s death was caused by the
Navy personnel’s violation of the Illinois abuse-notification
statute in regard to the Norman child, and that either there
is an implied right of action for damages under the statute,
or, if not, then because the statute is intended for the
protection of children such as the abused Cuyler child a
violation of it is prima facie evidence of negligence under
the common law of Illinois. The district court agreed with
the plaintiff’s second ground and therefore did not address
the first, but the plaintiff as is her right asks us to affirm on
the first if we disagree with the district court on the second.
We begin with the second since it’s the one the district court
considered.
A conventional principle of tort law, in Illinois as else-
where, is that if a statute defines what is due care in some
activity, the violation of the statute either conclusively or (in
Illinois) presumptively establishes that the violator failed to
exercise due care. E.g., Abbasi ex rel. Abbasi v. Paraskevoulakos,
718 N.E.2d 181, 185 (Ill. 1999); Marquay v. Eno, 662 A.2d 272,
277 (N.H. 1995); W. Page Keeton et al., Prosser and Keeton on
the Law of Torts § 36 (4th ed. 1984). But the statutory defini-
tion does not come into play unless the tort plaintiff estab-
lishes that the defendant owes a duty of care to the person
4 No. 03-2298
he injured (ordinarily the plaintiff, though in this case the
plaintiff’s decedent), because tort liability depends on the
violation of a duty of care to the person injured by the
defendant’s wrongful conduct. E.g., Ward v. K Mart Corp.,
554 N.E.2d 223, 226-27 (Ill. 1990); Kirk v. Michael Reese
Hospital & Medical Center, 513 N.E.2d 387, 395-96 (Ill. 1987);
Swett v. Village of Algonquin, 523 N.E.2d 594, 597 (Ill. App.
1988).
Ordinarily the scope of the tort duty of care—whether it
extends to bystanders, customers, investors, unforeseeable
plaintiffs (as in the famous Palsgraf case), and so forth, see
Edwards v. Honeywell, Inc., 50 F.3d 484, 488-90 (7th Cir. 1995),
and cases cited there—is given by the common law. E.g.,
Ward v. K Mart Corp., supra, 554 N.E.2d at 226-27; Webb v.
Jarvis, 575 N.E.2d 992, 995 (Ind. 1991); Dunphy v. Gregor, 642
A.2d 372, 377 (N.J. 1994); Calkins v. Cox Estates, 792 P.2d 36,
39 and n. 1 (N.M. 1990); Oregon Steel Mills, Inc. v. Coopers &
Lybrand, LLP, 83 P.3d 322, 328-29 (Ore. 2004); Bernethy v.
Walt Failor’s, Inc., 653 P.2d 280, 282 (Wash. 1982). And
although the legislature can and sometimes does create a
duty of care to a new class of injured persons, the mere fact
that a statute defines due care does not in and of itself create
a duty enforceable by tort law. E.g., Board of Education v. Du
Page County Election Comm’n, 793 N.E.2d 954, 957-58 (Ill.
App. 2003). The distinction is well explained in Marquay v.
Eno, supra, 662 A.2d at 277: “whether or not the common
law recognizes a cause of action, the plaintiff may maintain
an action under an applicable statute where the legislature
intended violation of that statute to give rise to civil liabil-
ity. The doctrine of negligence per se, on the other hand,
provides that where a cause of action does exist at common
law, the standard of conduct to which a defendant will be
held may be defined as that required by statute, rather than
as the usual reasonable person standard.” See also Kansas
State Bank & Trust Co. v. Specialized Transportation Services,
No. 03-2298 5
Inc., 819 P.2d 587, 603 (Kan. 1991). Otherwise every statute
that specified a standard of care would be automatically
enforceable by tort suits for damages—every statute in effect
would create an implied private right of action—which
clearly is not the law. The only modification required to
make the passage that we quoted from the Marquay case an
accurate statement of Illinois law is that in Illinois the
violation of a statutory standard of care is prima facie
evidence of negligence rather than negligence per se.
From this analysis it follows that only if the Illinois
common law of torts imposed on the medical personnel of
the Great Lakes Naval Hospital a duty of care to the
Cuylers’ child would the Illinois notification statute specify
the level of care that they owed the child—specify, that
is, that due care required taking steps to prevent Higgs from
further babysitting until the circumstances in which the
Norman child had been injured were clarified. In general,
however, tort law imposes on people only a duty to take
reasonable care to avoid injuring other people, and not a
duty to rescue others from injuries by third parties, though
there are exceptions. For the rule and its exceptions, see our
recent discussion in Stockberger v. United States, 332 F.3d 479,
480-82 (7th Cir. 2003); for the rule in Illinois, see, e.g., Parra
v. Tarasco, Inc., 595 N.E.2d 1186, 1187-90 (Ill. App. 1992)
(“the common law recognizes no general duty to aid a
person in peril”). In other words, there is no general duty in
the common law duty to be a “good Samaritan.” This
principle is well settled in Illinois, as elsewhere. Besides the
Parra case, see, e.g., Rhodes v. Illinois Central Gulf R.R., 665
N.E.2d 1260, 1270 (Ill. 1996); Handzel v. Kane-Miller Corp.,
614 N.E.2d 206, 208 (Ill. App. 1993); Traudt v. City of Chicago,
240 N.E.2d 188, 191-92 (Ill. App. 1968); Lee v. GNLV Corp., 22
P.3d 209, 212 (Nev. 2001); Restatement (Second) of Torts § 314
(1965); Keeton et al., supra, § 56, pp. 375-76. That is why the
plaintiff in this case needs the abuse-notification statute to
6 No. 03-2298
maintain this suit; she has no common law tort claim.
(Needless to say, we have no authority to create good
Samaritan liability under Illinois law.)
As we noted in Stockberger, “If A saw that B was about to
be struck on the head by a flowerpot thrown from a tenth-
story window, and A knew that B was unaware of the im-
pending catastrophe and also knew that he could save B
with a shout, yet he did nothing and as a result B was killed,
still, A’s inaction, though gratuitous (there was no risk or
other nontrivial cost to A) and even reprehensible, would
not be actionable.” 332 F.3d at 480-81. The result would not
be changed if there were a statute that made it a crime to fail
without justification to try to save an endangered person,
unless the statute itself created, expressly or by implication,
a tort remedy for its violation (the second issue in the
present case, discussed below). If B’s survivors attempted to
base liability on the fact that the legislature had declared
that due care required a rescue attempt in the circum-
stances, they would be met with the argument that, while
undoubtedly A had failed to exercise due care, that could not
be a basis for liability because A had no duty to B to exercise
due care.
It would be different if A had dropped the flowerpot on
B and a statute provided that due care required avoiding
tossing heavy objects out of upper-floor windows. For in
that case, as a matter of tort law, A would have a duty to B,
and the statute would show that he had violated the duty.
The common law would create the duty, the statute would
define it. That would be a case like Doe v. Dimovski, 783
N.E.2d 193 (Ill. App. 2003), on which the plaintiff relies
heavily but unavailingly. For here, as in the indistinguish-
able case of Parra v. Tarasco, Inc., supra, 595 N.E.2d at 1187-
88, there was no duty. Also unavailing is the principle
that one who begins a rescue though not required to do so
No. 03-2298 7
must carry it through nonnegligently, Wakulich v. Mraz, 785
N.E.2d 843, 854 (Ill. 2003); Rhodes v. Illinois Central Gulf R.R.,
supra, 665 N.E.2d at 1273; O’Brien v. City of Chicago, 674
N.E.2d 927, 935 (Ill. App. 1996); Commercial Union Ins. Co. v.
DeShazo, 845 So. 2d 766, 769 (Ala. 2002); Folsom v. Burger
King, 958 P.2d 301, 310 (Wash. 1998); Restatement, supra, §
324; Keeton et al., supra, § 56, pp. 377-82, because his
attempt at rescue may have deflected other rescuers.
Suppose a person is drowning and one of the bystanders
says, “Don’t worry; I’m a powerful swimmer and I will save
him,” and so other bystanders, who are powerful swim-
mers, remain on shore. The would-be rescuer, however, is
merely a braggart, and being a weak swimmer is unable to
rescue the drowning person. He would be liable for the
person’s death. There is nothing of this sort here.
We said there were exceptions to the rule that there is
no common law duty to warn or rescue. (We have just
mentioned one.) The exception that comes closest to this
case is where, as in the famous case of Tarasoff v. Regents
of University of California, 551 P.2d 334 (Cal. 1976), a phy-
sician or other medical professional fails to warn the
potential victims of his patient (whether the patient is a
homicidal maniac, as in Tarasoff, or a Typhoid Mary). See
also Eckhardt v. Kirts, 534 N.E.2d 1339, 1342-44 (Ill. App.
1989); Novak v. Rathnam, 505 N.E.2d 773, 775 (Ill. App. 1987);
Bradshaw v. Daniel, 854 S.W.2d 865, 871-73 (Tenn. 1993);
Hofmann v. Blackmon, 241 So. 2d 752 (Fla. App. 1970); cf.
Reisner v. Regents of University of California, 37 Cal. Rptr. 2d
518 (App. 1995). Higgs was not the patient of anyone at
Great Lakes Naval Hospital, and so the exception is inappli-
cable.
Thus Illinois common law did not impose on the hospi-
tal’s employees a tort duty running to the Cuylers’ child, but
8 No. 03-2298
we must consider whether the Illinois notification statute
may have created such a duty. It did not do so expressly.
The statute contains no reference to damages or other tort-
type remedies. The only sanctions provided are criminal
and disciplinary sanctions for willful violations. Nothing in
the statute’s text indicates that the legislature meant to
expand the scope of tort liability to encompass people who
fail to report child abuse and are thus analogous to bystand-
ers who fail to intervene to prevent injuries by third parties.
No Illinois case has addressed the question whether,
nevertheless, the statute implicitly creates a private right to
obtain damages (yet the plaintiff is adamant that we should
not certify the question to the Supreme Court of Illinois). But
an imposing line of cases from other jurisdictions dealing
with the private-right question under very similar, indeed
materially identical, child-abuse notification statutes, and
using a standard similar to that used by the Illinois courts to
determine whether to read a damages remedy into a statute
(“implication of a private right of action is appropriate
when (1) plaintiff is a member of the class for whose benefit
the statute was enacted, (2) it is consistent with the underly-
ing purpose of the statute, (3) plaintiff’s injury is one the Act
was designed to prevent, and (4) it is necessary to provide
an adequate remedy for violations of the statute,” Noyola v.
Board of Education, 688 N.E.2d 81, 85 (Ill. 1997)), have held
that a private right should not be implied. Arbaugh v. Board
of Education, 591 S.E.2d 235, 241 (W. Va. 2003); C.B. v. Bobo,
659 So. 2d 98, 102 (Ala. 1995); Perry v. S.N., 973 S.W.2d 301,
309 (Tex. 1998); Marquay v. Eno, supra, 662 A.2d at 278;
Kansas State Bank & Trust Co. v. Specialized Transportation
Services, Inc., supra, 819 P.2d at 603-04; Valtakis v. Putnam,
504 N.W.2d 264, 266 (Minn. App. 1993); Cechman v. Travis,
414 S.E.2d 282, 283-84 (Ga. App. 1991); Bradley v. Ray,
904 S.W.2d 302, 312-14 (Mo. App. 1995); Fischer v. Metcalf,
543 So. 2d 785, 788-91 (Fla. App. 1989); Borne by Borne v.
No. 03-2298 9
Northwest Allen County School Corp., 532 N.E.2d 1196, 1203
(Ind. App. 1989); but see Landeros v. Flood, 551 P.2d 389, 396-
98 (Cal. 1976).
We think that those decisions are correct (the one outlier,
Landeros, is not in point, as the court confined private
actions to deliberate violations of the statute at issue) and
that the Supreme Court of Illinois will fall in line with them,
especially given that court’s increasing reluctance to imply
private rights of action, a reluctance well illustrated by its
very recent decision in Metzger v. DaRosa, No. 95913, 2004
WL 335025 (Ill. Feb. 20, 2004). It is of some significance that
in the almost 30 years in which ANCRA has been on the
books, no cases have been reported in which a tort suit was
premised on a failure to report potential abuse, in violation
of the statute.
The fact that the only sanction the legislature has pro-
vided is for a willful violation (which is not alleged in this
case) suggests a reluctance to impose liability for merely
negligent violations, and this is understandable for a variety
of reasons. One is that the legislators were clearly worried
about the harm to people falsely or mistakenly accused of
child abuse, and so imposed a criminal penalty for know-
ingly false reporting. 325 ILCS 5/4. Another is the vast
range of persons encompassed by the reporting require-
ment. A “homemaker” who not willfully but merely
carelessly failed to report suspected abuse by a babysitter,
perhaps fearing that the babysitter would sue her for
defamation, see Brown v. Farkas, 511 N.E.2d 1143, 1146-47
(Ill. App. 1986); Bogosian v. Board of Education, 134 F. Supp.
2d 952, 954-55 (N.D. Ill. 2001), might on the plaintiff’s view
of the statute find herself sued years later because the
babysitter had abused another child.
Maybe such encompassing liability would be a good
thing; it would doubtless lead to more reporting. It is
10 No. 03-2298
usually the case that piling on punishments will increase
compliance with a statute. But if that were the only consid-
eration, all statutes would be interpreted to create private
rights of action. Such piling on in the case of ANCRA would
place even nonprofessionals, such as homemakers, on a
razor’s edge, where they could be faced with suit whether
they did or did not report an incident that might involve
child abuse. It is true that there is a statutory safe harbor for
“good faith” mistaken reporting of abuse and even a
presumption of good faith, 325 ILCS 5/9, but what is good
faith in a particular case remains a litigable issue. It may be
significant that since being enacted, the abuse-notification
statute has been amended several times, any one of which
would have provided an occasion for plugging in a dam-
ages remedy had there been legislative sentiment for such
a remedy; evidently there was not.
Another point, this one well illustrated by the facts of this
case and a possible reason behind the common law’s settled
reluctance to create good Samaritan liability (part of a more
general conservatism, further illustrated by the common
law’s refusing to create a remedy in cases of wrongful
death—in Illinois as elsewhere, suits for wrongful death are
entirely creatures of statute, Pasquale v. Speed Products
Engineering, 654 N.E.2d 1365, 1378 (Ill. 1995); Florida Conva-
lescent Centers v. Somberg, 840 So. 2d 998, 1001 (Fla. 2003);
Franklin v. Franklin ex rel. Phillips, 858 So. 2d 110, 115 (Miss.
2003); Etling v. Westport Heating & Cooling Services, Inc., 92
S.W.3d 771, 773 (Mo. 2003) (en banc)), is that issues of
causation tend to be more difficult to resolve in a case of
nonfeasance, which is what good Samaritan liability is, than
in one of misfeasance. See Keeton et al., supra, § 56, p. 376.
Suppose the Great Lakes Naval Hospital had promptly
reported the abuse of the Norman child to the state’s child
welfare department. What would have ensued? Would
Higgs, who did not admit having abused the child, have
No. 03-2298 11
been arrested? Probably not without an investigation, which
might have taken more than 28 days to complete. Of course,
just the commencement of an investigation might well have
deterred her from further child abuse, but that is specula-
tion too. The speculative character of causal inquiries in
good Samaritan cases is another reason to doubt that the
Illinois legislature intended to create tort liability by
enacting a statute that does not purport to do so.
We conclude that the judgment for the plaintiff must be
reversed and the suit dismissed.
REVERSED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-30-04