The Utah Supreme Court Friday upheld the dismissal of a Delta man's lawsuit against state officials, who he said failed to protect his baby from her mother.
But one justice urged the Legislature to re-examine a law that gives immunity to the government agency whose very charge it is to protect children from abuse and neglect.
In 1998 Ricky Lee Sanders filed a $5 million civil suit after the death of his daughter, Breanna Marie Loveless, against Gov. Mike Leavitt, then-Utah Attorney General Jan Graham, several child-protection officials and attorneys.
He also charged negligence by advocates who negotiated a 1994 class-action settlement against the Utah Division of Child and Family Services and the three-member panel charged with monitoring DCFS.
Sanders claimed DCFS workers knew the 9-month-old girl was suffering from abuse and neglect at the hands of her mother, Bobbie Dawn Widdison, and uncle, Travis Widdison.
Sanders and the baby's grandmother, Maradeen Sanders, first brought Breanna to the attention of DCFS on Jan. 12, 1996, when they noticed she suffered from a severe nasal inflammation, according to testimony in the criminal trial of the Widdisons on felony child abuse charges.
The incident prompted the first of Breanna's hospital visits before she died 40 days later.
The high court upheld the dismissal of various defendants in the case and agreed with a lower court ruling granting summary judgement to DCFS. It said the Utah Governmental Immunity Act applies in this case, and the agency is not liable for injuries that rise out of assault and battery by another party in this case the Widdisons.
Justice Christine Durham did not dissent from the majority opinion, but felt "constrained" to point out an "ongoing problem" with the immunity statute.
Durham called it "disturbing" that the rule prevents, "as in this case, a claim against DCFS for negligence in the supervision and protection of an abused infant."
"It is possible that the state might be immune from negligence claims arising out of these circumstances on some other basis . . . but it seems bizarre that the assault and battery rule should immunize from suit an agency whose primary function is to protect vulnerable children from physical abuse and neglect," Durham said.
Sander's attorney did not return calls for comment.
Assistant Attorney General Brent Burnett, who represented the state, said the ruling was not a surprise."The court has previously indicated what the law is," he said. He added that the rule regarding assault and battery has been on the books since the state's governmental immunity act was passed.
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