The difficulty of bringing tort claims against the Department of Social Services

On December 2, 2015, the South Carolina Supreme Court reversed this Court of Appeals decision in Bass v. SCDSS For further analysis of the Supreme Court opinion: It just became a little easier (although still not very easy) to sue DSS in tort.

Last week a colleague of mine told me a story of attending a Charleston Riverdogs (the local minor league baseball team) game in which a staff attorney for the abuse and neglect section of the Charleston County Department of Social Services was throwing out the first pitch.  The announcer stated the honoree’s profession, whereupon the crowd loudly booed.  Neither of us can recall a first-pitch thrower having been booed before but neither of us were surprised this attorney was.  Folks simply–and for good reason–don’t like DSS.

Many if not most of the children that DSS removes from their caregivers are removed for good reason.  Yet even those caregivers are unlikely to feel warmly towards the agency that removed their children.  However, there’s a small subset of folks who find their family in DSS’s clutches without good cause and they tend to hate DSS–for very good reason–the most.

Occasionally folks call me wanting to know if I can help them “sue DSS.”  Typically they’ve found my website, see that I’ve written and lectured on defending parents in abuse and neglect proceedings, and assume I’m the right attorney to handle their tort claim.  For two reasons, I always turn them down–without even bothering to determine whether DSS interfered with their family without good cause.

My first reason for turning them down is that I don’t want to develop a practice area of suing DSS in tort.  The DSS staff attorneys are my opposing counsel in abuse and neglect proceedings and, even if we work for clients in conflict, it helps to have a good working relationship with the attorneys you oppose on a regular basis. Good will and trust with opposing attorneys helps smooth out procedural issues and makes it easier to resolve substantive issues.  Start suing DSS and it’s much harder for their staff attorneys to work with you.

My bigger reason for not handling tort claims against DSS is that it’s so hard to win, as the February 27, 2013 Court of Appeals opinion in Bass v. DSS, 403 S.C. 184, 742 S.E.2d 667 (Ct.App. 2013), demonstrates.  In Bass, DSS removed the Basses’ children as part of a safety plan when two of their children showed up at the emergency room having potentially been poisoned.  The Basses actually signed the safety plan that placed their children with a relative.  Subsequent investigation uncovered that a pharmacy had filled the children’s prescription at over one thousand times the prescribed strength.  When this was discovered the children were returned eight days after the removal.

The Basses sued the pharmacy, the pharmacist, and DSS and settled the claims against the other defendants.  To prevail in this lawsuit the Basses needed to prove “gross negligence.” Under the South Carolina Tort Claims Act, “[t]he governmental entity is not liable for a loss resulting from . . . responsibility or duty . . . except when the responsibility or duty is exercised in a grossly negligent manner.” S.C. Code Ann. § 15-78-60(25) (2005). Gross negligence is proved by demonstrating the “intentional conscious failure to do something which is incumbent upon one to do or the doing of a thing intentionally that one ought not to do,” or “the failure of slight care.” Jinks v. Richland Cnty., 355 S.C. 341, 345, 585 S.E.2d 281, 283 (2003).  At trial the jury returned a verdict against DSS on the Basses’ claims of gross negligence and intentional infliction of emotional distress for $4,000,000–as indicated above, folks really hate DSS.   The judge reduced the verdict to $600,000–the statutory cap under the South Carolina Tort Claims Act–but refused to direct a verdict for DSS.

The Court of Appeals reversed, finding that the Basses had failed to provide any evidence of gross negligence.  The Court reasoned (I believe correctly):

Based on the evidence in the record, we hold the trial court erred in denying DSS’s motion for a JNOV [judgment notwithstanding the verdict] on the Basses’ gross negligence cause of action. Initially, the  record indicates Parish [the DSS caseworker] responded to the hospital within forty-five minutes of the reported parental poisoning. Parish testified the children were classified as a medium danger rating, allowing Parish merely twenty-four hours to conduct her investigation, pursuant to DSS policy. We find this time constraint, which has been specifically recognized by our supreme court, to be particularly important in our determination. See Spartanburg Cnty. Dep’t of Soc. Servs. v. Little, 309 S.C. 122, 125, 420 S.E.2d 499, 501 (1992) (declining to award attorney’s fees against DSS in a child abuse and neglect case because “DSS often must act quickly and without thorough investigation to remove children who may have been abused or neglected from potentially dangerous situations”). In that time, Parish interviewed family members and learned the children became sick after Mrs. Bass administered  their medicine. Parish also obtained the Basses’ consent to have the children’s medical information released to DSS. Although it was ultimately inconclusive, Parish further obtained the children’s toxicology report. While far from perfect, there is no evidence in the record indicating DSS failed to exercise slight care.

Finding that there was insufficient evidence to find gross negligence, the Court of Appeals also determined the Basses had failed to prove “reckless” conduct sufficient to sustain the intentional infliction of emotional distress claim, as “[r]ecklessness is a higher degree of negligence than gross negligence.”

Assuming the Court of Appeals recitation of the facts did not neglect facts helpful to the Basses, it’s hard to see this as even a close case.  Two siblings in the emergency room with similar poisoning would raise concerns with most investigators and taking eight days from unraveling the facts to returning the children is actually quite speedy by state agency standards.  Given the requirement of proving gross negligence to prevail, it is somewhat surprising the Basses even brought this claim.

That a typically conservative South Carolina jury awarded these parents $4,000,000 for the eight-day removal of their children is indicative of the antipathy the public has towards DSS.  Yet that doesn’t make it any easier to prove the gross negligence necessary to successfully sue that agency.  It’s hard to making a living suing DSS in tort.

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