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Radke v. County of Freeborn

April 21, 2005

MATTHEW RADKE, AS TRUSTEE FOR THE NEXT OF KIN OF MAKAIO LYNN RADKE, APPELLANT,
v.
COUNTY OF FREEBORN, ET AL., RESPONDENTS.



SYLLABUS BY THE COURT

A cause of action exists for wrongful death based on the alleged negligence of the county and two county child protection workers in the investigation of child abuse and neglect reports as required by the Child Abuse Reporting Act, Minn. Stat. § 626.556 (2004).

The opinion of the court was delivered by: Blatz, Chief Justice.

Reversed and remanded.

Heard, considered, and decided by the court en banc.

OPINION

The issue in this case is whether a negligence cause of action can be maintained for the intervention and investigation of reports of suspected child abuse and neglect as required under the Child Abuse Reporting Act, Minn. Stat. § 626.556 (2004) (CARA). Appellant Matthew Radke (appellant), as trustee for the next of kin of his son Makaio Lynn Radke (Makaio), brought a wrongful death action against Freeborn County and two county child protection workers alleging that they negligently investigated reports of suspected abuse of Makaio. The district court granted respondents' motion to dismiss for failure to state a claim upon which relief can be granted under Minn. R. Civ. P. 12.02(e). The court of appeals affirmed, holding that the "legislature did not expressly or impliedly create a civil cause of action under the Child Abuse Reporting Act." Radke v. County of Freeborn, 676 N.W.2d 295, 301 (Minn. App. 2004). We hold that a cause of action can be maintained for negligence in the investigation and intervention of child abuse and neglect reports as required under CARA. We therefore reverse and remand.

Nineteen-month-old Makaio was beaten to death on April 21, 2001 by Paul Gutierrez, a friend of his mother's. During the months preceding Makaio's tragic death, he was the subject of a child abuse and neglect investigation by the Freeborn County Department of Human Services.*fn1 At the time of his death, Makaio's parents had separated and were in the process of dissolving their marriage. In January 2001, appellant had moved out of the family's home and Makaio was living with his mother, Peggy Radke (Radke), and two other adults, Gutierrez and Kristina Baker. Upon learning that Gutierrez was living at the home, appellant become concerned and called the Albert Lea Police Department to make a complaint on January 20, 2001.

On February 28, 2001, appellant brought Makaio to the Albert Lea Medical Center where a doctor examined Makaio. Based on his examination of Makaio, which revealed that Makaio had lesions behind his ears and bruises on his cheeks, the doctor reported suspected child abuse and neglect to the Freeborn County Human Services Department. In response to that report, Tammy Ressler, a Freeborn County child protection worker, visited Radke's residence on March 2, 2001. Radke told Ressler that Makaio's injuries were caused by a fall. Ressler did no further investigation and took no protective action on behalf of Makaio.

On March 21, 2001, appellant brought Makaio to the Albert Lea Police Department after he discovered bruising on Makaio's testicles. The police reported the suspected abuse to the county the next day.*fn2 After the police took photographs, appellant again took Makaio to the Albert Lea Medical Center. The doctor who examined Makaio at the medical center noted Makaio's injuries which included abrasions on his head, a bruise on his jaw and his back, and wounds on his thigh and foot which resembled burns. Based on this examination of Makaio, the doctor also reported suspected abuse to the county.

In response to these reports, Ressler again visited Makaio at Radke's home on March 26, 2001. Radke told Ressler that the mark on Makaio's foot was caused by "hand-foot-and-mouth disease." Ressler apparently accepted this explanation, despite the fact that the doctor who examined Makaio diagnosed his injuries as resembling a burn. Although Ressler observed Gutierrez present in the home and talked to him briefly, she did not question him about Makaio. No further investigation was conducted at that time, nor was any protective action undertaken.

Shortly thereafter, on April 10, 2001, appellant received a letter from Ressler advising him that the Freeborn County Department of Human Services had determined that no abuse had occurred and that child protective services were not necessary. The following day, appellant again contacted the Albert Lea Police Department to report his concern that Makaio was being abused. Two days later, Makaio's guardian ad litem also contacted the police after she visited the Radke home and observed that Makaio had some bruises on his face. The guardian ad litem took photographs of the bruising and reported to the police that Radke had claimed that the bruising occurred the night before while Makaio was in the bathtub.

It was not until April 20, 2001, seven days after the guardian ad litem reported suspected abuse to police and nine days after appellant's report, that the county took any steps to investigate. On that date, Lisa Frank, a second county child protection worker, visited Makaio at Radke's home at approximately 11:00 a.m. Present at the home during the visit were Radke, Makaio, Makaio's sister, Baker, and Baker's child. Frank was aware of the prior reports of abuse, and observed a small bruise on Makaio's left temple, a similar bruise on his rib cage, a third bruise on his backbone just above his diaper, and a healing injury to his foot. Frank also observed that Makaio was lethargic and had a runny nose. After a half-hour visit, Frank departed without instituting any precautionary measures and left Makaio with Radke at the home.

Later that day, Radke and Baker went out leaving Gutierrez in charge of Makaio, Makaio's sister, and Baker's child. Radke and Baker returned home at about 1:00 a.m. The next morning, Radke brought Makaio to the medical center where he was pronounced dead at 10:19 a.m. An autopsy conducted by the Ramsey County Medical Examiner determined that Makiao had died 10 to 12 hours before he was confirmed dead at the hospital. Makaio had multiple bruises on his face, back, legs, arms, lower extremities and head. Makaio also had multiple fractures of his ribs, sub-subcutaneous emphysema, a small abrasion on the back of his head, and a laceration on the edge of his rectum. Gutierrez was subsequently convicted of two counts of first-degree murder by criminal sexual conduct and by child abuse, and one count of second-degree murder. We affirmed his convictions. State v. Gutierrez, 667 N.W.2d 426 (Minn. 2003).

Appellant was appointed trustee and next of kin of Makaio by order of the Freeborn County District Court on December 18, 2002. Shortly thereafter, appellant commenced this wrongful death negligence action against Freeborn County and the county's child protection workers Frank and Ressler, individually and in their capacities as employees of Freeborn County. Radke and Gutierrez ...


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