Fischer v. MetcalfFischer v. Metcalf
Lee, Schulte, Murphy & Coe, Coral Gables, for appellee.
ON REHEARING EN BANC
JORGENSON, Judge.
The defendant, Dr. George W. Metcalf, filed a motion for rehearing of the opinion of this court. The panel opinion reversed the trial court‘s order of dismissal. This court, on its own motion, granted rehearing en banc pursuant to
The minor daughters of G.R. Fischer, by and through their mother and next friend, brought an action against their father and his psychiatrist, Dr. George W. Metcalf. The children alleged, inter alia, that Dr. Metcalf knew or should have known that his patient, G.R. Fischer, physically and mentally abused his daughters; that Dr. Metcalf, in violation of the child abuse reporting provisions of
(3) Any person, including, but not limited to, any:
(a) Physician, osteopath, medical examiner, chiropractor, nurse, or hospital personnel engaged in the admission, examination, care, or treatment of persons;
(b) Health or mental health professional other than one listed in paragraph (a);
(c) Practitioner who relies solely on spiritual means for healing;
(d) School teacher or other school official or personnel;
(e) Social worker, day care center worker, or other professional child care,
foster care, residential, or institutional worker; or (f) Law enforcement officer, who knows, or has reasonable cause to suspect, that a child is an abused or neglected child shall report such knowledge or suspicion to the department in the manner prescribed in subsection (9).
(18)(a) Any person required by this section to report known or suspected child abuse or neglect who knowingly and willfully fails to do so, or who knowingly and willfully prevents another person from doing so, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Chapter 827 makes no express provision for civil liability. Our threshold inquiry, therefore, concerns the appropriate test to use in deciding whether a cause of action should be judicially implied. This court previously has followed common-law tradition and set forth a relatively simple test in Rosenberg v. Ryder Leasing, Inc., 168 So. 2d 678 (Fla. 3d DCA 1964). Rosenberg provided that, where a penal statute imposes a duty to benefit a class of individuals, a right of action accrues to a class member injured through breach of the duty. Having once ascertained the existence of a special class and plaintiff‘s membership therein, we reasoned that “the cause of action arises by virtue of the duty created by the statute.” Id. at 680. The Rosenberg test comported with the test set out in Texas & Pacific R. v. Rigsby, 241 U.S. 33, 39, 36 S. Ct. 482, 484, 60 L. Ed. 874, 877 (1916). “[W]here a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of a wrong done to him contrary to the said law.” (Citations omitted.)
More than a half-century after Rigsby was decided, the Supreme Court modified its approach in determining whether a private remedy should be implied in a statute not expressly providing one. As will be seen, infra, we now alter our own approach. In Cort v. Ash, 422 U.S. 66, 95 S. Ct. 2080, 45 L. Ed. 2d 26 (1975), the Court set forth four criteria that focused on discerning the intent of Congress in enacting the statute under review. Three of the four factors enumerated in Cort are germane in a state court setting. These are:
(1) whether the plaintiff is one of the class for whose especial benefit the statute was enacted;
(2) whether there is any indication, either explicit or implicit, of a legislative intent to create or deny such a remedy;
(3) whether judicial implication is consistent with the underlying purposes of the legislative scheme[.]
422 U.S. at 78, 95 S. Ct. at 2088, 45 L. Ed. 2d at 36 (emphasis in the original).2 Referring to these criteria, the Court observed that increasingly complex federal legislation, coupled with a much higher volume of federal litigation, “strongly supported the desirability of a more careful scrutiny of legislative intent than Rigsby had required.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 377, 102 S. Ct. 1825, 1838, 72 L. Ed. 2d 182, 200 (1982). Although not expressly overruled, all that
While Cort and Curran are not binding upon us, the Court‘s rationale is compelling. Legislation in Florida has become increasingly comprehensive in recent years, and Florida courts bear an ever-greater burden of ascertaining legislative intent when it is not otherwise clear. Within this contemporary context, we find the Cort analysis is a more incisive aid in determining legislative intent. Mindful that “[i]t is a fundamental rule of statutory construction that legislative intent is the polestar by which the court must be guided... . ,” State v. Webb, 398 So. 2d 820, 824 (Fla. 1981), we adopt the implication doctrine articulated in Cort. Accordingly, we recede from Rosenberg to the extent that it holds the “class benefited” factor to be the sole determinative in implying a private right of action for violation of a penal statute. Our decision to recede will not undermine prior case law in this district. In our more recent opinions, we have not strictly applied the Rosenberg test but have incorporated the substance of the Cort factors into our analyses. See Bass v. Morgan, Lewis & Bockius, 516 So. 2d 1011 (Fla. 3d DCA 1987) (court looked to additional factors of statutory history and intendment of extortion statute to hold no civil cause of action for violation of statute creating crime of extortion), rev. denied, 525 So. 2d 876 (Fla. 1988); Lavis Plumbing Servs. v. Johnson, 515 So. 2d 296 (Fla. 3d DCA 1987) (court reviewed purpose of statute, subsequent history, and scrutinized legislative intent in determining that law prohibiting impersonation of an officer did not impose duty for benefit of special class and thus did not give rise to cause of action for civil liability); Tourismart of America, Inc. v. Gonzalez, 498 So. 2d 469 (Fla. 3d DCA 1986); Perdomo v. Jackson Memorial Hosp., 443 So. 2d 298 (Fla. 3d DCA 1983); Roger Rankin Enters., Inc. v. Green, 433 So. 2d 1248 (Fla. 3d DCA 1983) (Pearson, J., specially concurring).
In his dissent in Cannon v. University of Chicago, 441 U.S. 677, 99 S. Ct. 1946, 60 L. Ed. 2d 560 (1979), Justice Powell noted that in the first four years after the Cort decision no fewer than twenty decisions by the circuit courts had implied private actions from federal statutes. This suggests that application of the Cort doctrine will not — nor should it — operate to close the courthouse doors to litigants seeking private redress for violations of penal statutes. At the same time, there is merit in Justice Powell‘s criticism that Cort permits the judiciary to assume policymaking authority vested in the legislature, thereby inviting the legislature
to avoid resolution of the often controversial question whether a new regulatory statute should be enforced through private litigation. Rather than confronting the hard political choices involved, Congress is encouraged to shirk its constitutional obligation and leave the issue to the courts to decide. When this happens, the legislative process with its public scrutiny and participation has been bypassed, with attendant prejudice to everyone concerned. Because the courts are free to reach a result different from that which the normal play of political forces would have produced, the intended beneficiaries of the legislation are unable to ensure the full measure of protection their needs may warrant. For the same reason, those subject to the legislative constraints are denied the opportunity to forestall through the political process potentially unnecessary and disruptive litigation. Moreover, the public generally is denied the benefits that are derived from the making of important societal choices through the open debate of the democratic process.
Cannon, 441 U.S. at 743, 99 S. Ct. at 1981, 60 L. Ed. 2d at 604 (footnote omitted). Courts must strike a balance; neither “fashioning a per se rule of construction that implicit in every penal statute is a concomitant civil remedy,” Roger Rankin, 433 So. 2d at 1250, nor relinquishing the task of judicial implication in the face of legislative faltering or uncertainty. In achieving this balance, we look to the Cort doctrine.
When scrutinizing the history of legislation to determine legislative intent, it is appropriate to consider acts passed at subsequent sessions. Watson v. Holland, 155 Fla. 342, 20 So. 2d 388 (1944), cert. denied, 325 U.S. 839, 65 S. Ct. 1408, 89 L. Ed. 1965 (1945). In 1980, the legislature broadened Chapter 827 to extend its protection to “persons suffering from the infirmities of aging.”
The subsequent history of chapter 827, then, evidences a legislative intent to increase the number of classes protected by the legislation. The young, the aged, and the infirm all find shelter under the statutory provisions. It strains credulity to presume the legislature intended so broad a result as that a private right of action be available, by implication only, to classes which comprise half of our population. The query under Cort, whether S.M. is one of the class for whose especial benefit the statute was enacted, must therefore be answered in the negative.
Further, there is no indication, either explicit or implicit, to suggest a legislative intent to create a private remedy on behalf of individuals who are abused, neglected, or exploited. Cort. On those occasions when the legislature has expanded the classes and provided for increased protective services, it has not modified the penalty for non-reporters. To supply a civil remedy to those classes protected under the 1979 statute is to suppose that the legislature intended as well to provide a private right of action to the elderly but overlooked its inclusion when the aged were brought within the statute‘s provisions in 1980 and overlooked it yet again when the child abuse section was completely overhauled in 1983. The legislature has had ample opportunity to broaden the penalty for failure to report or to add a companion civil remedy. The unchanged nature of the penalty, in the face of repeated reenactments and revisions, implies an intention on the part of the legislature not to provide a private right of action.
Finally, an implied civil remedy is inconsistent with the underlying purposes of the legislative scheme. Cort. The thrust of the legislation is to help those who are abused, neglected or exploited; to preserve family life, where possible; to deal with the impact of such abuse on siblings, family structure, and the citizens of Florida; and to intervene, treat, and rehabilitate to forestall further harm. As the legislature has clearly stated, “[i]t is intended that the mandatory reporting of such cases will cause the protective services of the state to be brought to bear in an effort to prevent further abuse, neglect, and exploitation.”
The legislature established that violation of the mandatory reporting provision would constitute a second degree misdemeanor. To find a legislative intent to provide a
Affirmed.
SCHWARTZ, C.J., and BARKDULL, HUBBART, NESBITT and FERGUSON, JJ., concur.
BASKIN, Judge (dissenting).
The issue presented for decision is whether
(3) Any person, including, but not limited to, any:
(a) Physician, osteopath, medical examiner, chiropractor, nurse, or hospital personnel engaged in the admission, examination, care, or treatment of persons;
(b) Health or mental health professional other than one listed in paragraph (a);
... .
who knows, or has reasonable cause to suspect, that a child is an abused or neglected child shall report such knowledge or suspicion to the department in the manner prescribed in subsection (9).
Any person required by this section to report known or suspected child abuse or neglect who knowingly and willfully fails to do so, or who knowingly and willfully prevents another person from doing so, is guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
In our original opinion, we held that
The majority recedes from Rosenberg v. Ryder Leasing, Inc., 168 So. 2d 678 (Fla. 3d DCA 1964), and holds that because Chapter 827, Florida Statutes (1979), applies not only to abused and neglected children, but also to those people who are “substantially unable to protect [themselves] from the abusive conduct of others,”
In holding that because the legislature did not expressly create a civil remedy, no civil cause of action may be derived from the statute, the majority misapplies the Supreme Court‘s analysis in Cort. The provision of a penal remedy does not preclude civil remedies. Migliore v. Crown Liquors of Broward, Inc., 448 So. 2d 978 (Fla. 1984) (sale of intoxicating beverage to minor contrary to statute precluding such sale, gives rise to civil action in favor of third parties injured by intoxicated minor, notwithstanding that statute is criminal, not civil, in nature); Shaw v. Fletcher, 137 Fla. 519, 188 So. 135 (1939) (although rape is a crime, civil cause of action arises in favor of the victim); Williams v. Dickenson, 28 Fla. 90, 9 So. 847 (1891) (the crime of arson also gives rise to a civil remedy); Carson v. Jackson, 466 So. 2d 1188 (Fla. 4th DCA 1985) (although child abuse statute states it applies to activities of HRS, broad language of statute indicates intent to discourage child abuse, whether by criminal prosecution or by civil lawsuit); Rosenberg (removal of mortgaged property from the county contrary to statutory duty to refrain from doing so is both a crime and a tort); see also Roger Rankin Enter., Inc. v. Green, 433 So. 2d 1248 (Fla. 3d DCA 1983) (criminal statute precluding utterance of worthless check may contain implied civil right of action). See generally Cort, 422 U.S. at 79, 95 S. Ct. at 2088, 45 L. Ed. 2d at 37 (“provision of a criminal penalty does not necessarily preclude implication of a private cause of action for damages.“). The Cort test,4 depends on whether the legislature intended implicitly or explicitly to create or to deny a civil remedy. Cort, 422 U.S. at 78, 95 S. Ct. at 2088, 45 L. Ed. at 36. Thus, the legislature‘s omission of a civil remedy may just as easily mean that it did not intend to deny a civil remedy as that the legislature did not intend to create one. Cort directs us to consider all relevant factors when implying a private right of action.
If we examine legislative intent, we find that
I would reinstate the action and let the trier of fact decide the merits of the claim. Contrary to the majority view, slip opinion, page two, footnote one, the doctor was not required by law to control his patient‘s behavior — his statutory obligation was merely to report. The court should not be reluctant to provide civil liability for unlawful failure to report known or suspected abuse — a statutory duty envisioned by the legislature as necessary to deter child abuse. The legislature took the necessary action; this court has deprived helpless victims of the legislature‘s intended shield.