By Mathew G. NasrallahTwenty years ago, I received a call from a mom and dad whose child was being physically and emotionally abused in a local daycare. I had no experience with these cases but felt compelled to help. We litigated that case almost to trial.1 Since then, I have litigated many such cases involving horrific accounts of abuse in every imaginable youth serving organization. These cases cut across a wide swath of tort law and conjure up a variety of procedural and evidentiary issues. The abuser rarely has a criminal history. The damages seldom include lost wages or medical bills. But, the emotional and psychological harm can be devastating.
The context of the abuse matters. It drives your investigation and theories of recovery. You must determine the role of the abuser within the organization or facility that should have provided care. The issues below are some that should be explored in these cases.
The Type of Organization or Facility Matters
No matter the setting, several factors are always critical: background of the abuser, including former employment and previous grooming conduct; the facility’s efforts to investigate the abuser’s background; if the abuser is an outside intruder, the security protocols for doors/gates; child abuse prevention and safety training including any materials, seminars, role playing, etc.; child safety protocols; presence of security cameras; other instances of abuse at the facility and reaction to the same; criminal prosecution of the abuser and cooperation by the caregiver facility; employment culture; volume of children under supervision, and structure of supervision.
There are other factors to consider in certain settings.
Daycare: heavily regulated and regularly inspected by the State of Georgia.2 The state will conduct an independent investigation.
Faith-based organizations, such as churches: Congregational or hierarchical? Is there a larger governing body like a synod, diocese, elder board, or session? Who holds the real power to hire, fire, budget, and spend? You must understand the volunteer structure. Are your clients involved in the ministry, or just dropping their child off for youth group, Sunday school, or children’s church? Does your client have access to church member lists, budgets, meeting minutes, practice and procedure handbooks, etc.?
Clubs and Shelters: Private or public? For-profit or charitable? These facilities may have their own childcare, which may be subject to state regulations.
Sports Teams and Athletic Clubs: May be affiliated with a larger organization, like USA Gymnastics. The affiliate may be subject to the guidelines of SafeSport which provides a ready standard and protocols for supervision and management of players.
Schools: Private or public? Charitable or non-charitable?
Public schools. Proving the violation of a ministerial duty, which is necessary to overcome official immunity based on the “discretionary act” defense, is very difficult.3 Often, § 1983 civil rights litigation is the only viable approach.4
Private schools are usually exempt from state daycare regulation, but verify they have an exemption on file. Private schools may have a church affiliation, which often means a mixed leadership structure (e.g., school board in form, but with total Pastor or elder body type control). Look for any larger national or regional affiliation for standards and protocols.
Camps: Usually affiliated with a larger youth serving organization, church, or foundation. The nature of that affiliation, and the level of control exerted by that organization, can significantly impact liability and coverage.
Private Residence: Abuse of a child while at a neighbor/relative’s home is rarely covered by homeowner’s insurance, as most policies exclude intentional/criminal conduct from coverage. Sometimes personal assets are the only hope for recovery.
Insurance coverage is optional in most of these environments. Even state regulated daycares are not required to carry liability insurance. The stickier issue is what type of coverage is in place. Specialized coverages for youth serving organizations are common but often limited. Most commercial policies exclude intentional and/or criminal conduct. A close reading is important. An exclusion does not guarantee a loss of coverage. Many caregivers pay extra for “buy back” coverage for sexual abuse or other criminal conduct, though these endorsements may contain their own exclusions and limitations. A million-dollar liability policy with intentional conduct exclusions may have a $25,000 buy back for sexual assault.
Pre-suit investigation is critical. Often, you must substantially investigate the incident before notifying the offending organization. Be careful though, allowing too much time to pass can cause problems with spoliation and insurance coverage. The first level of investigation concerns whether a civil case has merit. There is often an ongoing parallel criminal investigation. Don’t jeopardize that investigation, particularly by providing fodder for the criminal defense attorney: “Ladies and gentlemen, Mrs. Smith already hired a private civil attorney and is seeking lots of money for the alleged abuse of her daughter.”
Pre-suit investigation here is similar to civil crime victim cases. Identify and contact witnesses who can establish notice, knowledge, prior abuse, lack of supervision, etc. Some may still work for the organization. Consult the bar ethics rules before contacting unrepresented witnesses, particularly those whose testimony could bind the potential civil defendant. Keep in mind that a witness may sound the alarm, which could also get back to the criminal defense attorney involved. You should consider making the calls rather than hiring an investigator, at least for the critical witnesses. Buy an audio recording device that will connect to your phone and will slip into your pocket. Be very careful about taking photos or video, particularly where there is a reasonable expectation of privacy and/or private property concerns. While this may look risky, it can have a tremendous effect on your liability case.
As the representative of the victim, you may have access to the criminal investigation file even while it is pending, or when it involves a minor child.5 Criminal investigators often obtain the best statements, including a videotaped forensic interview of the victim, a video statement of the criminal defendant, and other key witnesses. Video recording devices within these facilities are common and you must ensure the footage is preserved. The local police usually get this evidence early-on.
These are time consuming and expensive cases. Screen carefully or get help. Parents are understandably distraught, but they can usually provide a helpful narrative of everything they know about the incident. Have them list out every possible witness, including leaders, supervisors, caregivers, etc. They often have some internal documents: contact list, parent guides and forms, contracts, waivers, parental access to web interfaces, protocols and procedures, child safety publications put out by the organization, etc. Be empathetic and patient. Emotions run high and the harms are immeasurable. Generally, the child should not attend the initial intake session, even if the child is an older teen. Hearing from the victim can come later, and the forensic interview may be all you need.
Statute of Limitation Problems
At present, the victim must file the lawsuit on or before their 23rd birthday (five years after they reach adulthood). O.C.G.A. § 9-33-33.1. Crime victims enjoy a tolling during the prosecution of the crime until it becomes final or otherwise terminated, but not to exceed six years.6 Political attempts to lengthen the Statute of Limitations for middle aged adult survivors continue.
Once you determine venue, carefully consider whether you want the name of the child and the parents to become public record. I usually proceed anonymously under “Jane Doe” or “John Doe” or using initials only, but this requires leave of court. Courts may limit or prohibit access to public records “in exceptional circumstances [when] the harm otherwise resulting to the privacy of a person in interest clearly outweighs the public interest.”7 Courts may allow party anonymity as long as the defendants’ rights are safeguarded. Failure to seek court permission to proceed anonymously may result in dismissal.8
As to the theories of liability that should be considered, a colorful array of tort law unfolds. Consider the following examples: general negligence, premises liability and negligent security theories, lack of supervision of a child, voluntary duty doctrine, respondeat superior and other vicarious liability theories, non-delegable duty, negligent hiring/retention, negligent/intentional infliction of emotional distress, breach of fiduciary duty, child of tender years, punitive damages, and attorney’s fees.
Map out your discovery early. Determine the order of depositions. For example, you may want to start low and build to the top of the supervision/leadership chain ending with the 30(b)(6) designee. Consider starting with witnesses that establish notice and knowledge. You should have a decent idea what these witnesses are going to say and lay out your direct/cross accordingly. I videotape most of my depositions. Inspect and photograph the facility. Measurements and video might be necessary. Consider having your expert attend for later testimony.
Minor child victim depositions are particularly problematic. The deposition itself could harm the child. The deposition cannot ordinarily be prevented, but it can be limited to protect the child. Consider limitation on time, scope, presence of caregivers/therapist/parents, reduced number of lawyers present, no videotape, and only directly relevant topics covered with off-topic area specifically excluded. Never go into this deposition without a written agreement with opposing counsel or a court order. Consider involving the therapist or counselor at an early stage when the child’s deposition becomes imminent. The deposition should be delayed until it is unavoidable and then only with close protection of the child.
Be prepared to depose the perpetrator in prison. You must strictly comply with the local warden’s protocol. Always videotape this one because you will not likely get the inmate live at trial.
Liability experts vary according to the environment in which the abuse occurred. There are different experts for church cases than private school or daycare settings. Psychological/forensic interview experts may also be needed. A suggestibility defense will necessitate experts who can address whether this came into play when the child disclosed the abuse. The issue is the reliability of the initial disclosure or forensic interview of the child victim. Damages experts are almost always necessary. The long-term effects of child sexual abuse into adulthood are heavily researched and several regionally and nationally known experts can speak to this. Some of these experts visit with and assess the child in your case, which is more compelling than speaking in the abstract.
A Few Evidentiary Bonuses
Keep in mind that there are certain evidentiary advantages and hearsay exceptions for child victims. If a child under 16 makes a statement describing sexual contact or abuse, it can be admitted into evidence through the person to whom it was made.9 The same is true for “statements made for medical purposes.”10 In the most important case addressing this, a mother told the physician the history of abuse and identified the abuser during the physician’s examination of her daughter. The mother’s only source for this information was her daughter. The physician was called to testify about what the mother told him, including the identity of the abuser: hearsay within hearsay. The Georgia Supreme Court allowed the testimony: “the identity of the abuser may be critical to prevent reoccurrence of the injuries, both physical and emotional, for which the child is being presently treated. Unlike in a car accident, identity of the alleged abuser may be an essential part of preventative medicine.”11 The court provided the test and evidentiary guidance for the Plaintiff’s lawyer when taking the doctor’s deposition.12
Almanza is critical because young children may disclose the abuse only to their parent or caregiver, and then be reticent to disclose during a forensic interview. The defense often takes the position that the abuse never happened, the mother unduly influenced the child or even implanted the memory, and the child cannot identify her abuser. It is very helpful to have the doctor tell the jury what the parent said about the abuse and identity of the abuser. This sort of corroborative physician testimony bears strong marks of reliability on which a jury could hang their hats.
I have only scraped the surface here and not even discussed trial and other peculiar evidentiary advantages and disadvantages. I have found these cases to be personally, emotionally, spiritually, and professionally challenging and exhausting. Keep in mind that cases involving sexual abuse of children impact everyone, including yourself and your staff. The potential for vicarious trauma suffered by those who help is real and must be recognized (and sometimes treated). The toll, while potentially heavy, is necessary in order for these children to obtain justice, hope, healing, and a better future. ●
ABOUT THE AUTHOR
Mathew Nasrallah’s law office is in Marietta, Ga. Matt serves on the GTLA Amicus and Legislative Committees. This article was adapted for use in the Verdict magazine. For a full copy of this article contact Matt at firstname.lastname@example.org or 770-420-1929.
1 It is also where I met my colleague Andrew Agatston, who often serves as my co-counsel in these cases and has been involved with the Children’s Advocacy Centers of Georgia for many years.
2 Bright From the Start: Georgia Department of Early Care and Learning, http://decal.ga.gov.
3 Reece v. Turner, 284 Ga. App. 282 (2007); but see, Cotton v. Smith, 310 Ga. App. 428 (2011)(official immunity denied involving molestation); see also, Smith v. McDowell, 292 Ga. App. 731 (2008)(official immunity denied involving abduction of child by non-custodial father)
4 See, Williams v. Fulton Cty. Sch. Dist., 181 F. Supp. 3d 1089, 1118 (N.D. Ga. 2016).
5 O.C.G.A. § 49-5-41(f).
6 O.C.G.A. § 9-3-99.
7 See, e.g. Doe v. Archdiocese of Atlanta, 328 Ga. App. 324 (2014); Doe v. Board of Regents of University System of Georgia, 215 Ga. App. 684 (1994); Alexander Properties Group, Inc. v. Doe, 280 Ga. 306 (2006).
8 Doe v. Archdiocese of Atlanta, 328 Ga. App. 324 (2014).
9 O.C.G.A. § 24-8-820.
10 O.C.G.A. § 24-8-803(4).
11 State v. Almanza, 304 Ga. 553, 560 (2018).
12 Id. at 561-563