Defense Opens in Abuse Claim against Orphanage, Stat
By Thomas J. Morgan
July 16, 1999
In a case that could have far-reaching effects, a Superior Court judge rules the state assumes a special duty when it takes custody of a child, and may be held liable for acts of negligence or abuse.
PROVIDENCE - The defense opened its case yesterday in a Superior Court lawsuit brought by a former ward of the state who maintains he was sexually abused 20 years ago by a former Roman Catholic priest and staff members of the now defunct St. Aloysius home, an orphanage in Greenville.
A ruling on one point on Wednesday made the state government vulnerable to unspecified damages in what could set a precedent, allowing other former wards with claims of abuse to sue for what amounts to malpractice.
The case, filed by Shawn M. Gill, 28, has been replete with claims of sexual misconduct against Gill and with the putative effects on him. Psychiatric testimony and state records have characterized Gill as a cross-dresser who had fantasies about being Wonder Woman, was molested by his stepfather, engaged in sex acts with his mother - an alcoholic prostitute who took her own life in 1986 - and became a prostitute in his teenage years.
The suit names as defendants Robert McIntyre, a former priest, in his capacity as director of the Rhode Island Catholic Orphanage Asylum, doing business as St. Aloysius Home; the orphanage itself; Linda D'Amario-Rossi in her capacity as director of the state Department of Children, Youth and Families; the State of Rhode Island, and several unnamed people listed as John Does and Jane Does.
D'Amario-Rossi, director of the department when the alleged abuses took place, has left that post.
Originally included among the defendants was the Most Rev. Louis E. Gelineau, Roman Catholic Bishop of Providence, now retired. Superior Court Judge Thomas H. Needham severed the bishop from the case, however, and the state Supreme Court last month upheld Needham's ruling.
Gill's suit does not seek a specific dollar amount. The damages will be assessed by a jury of eight, who include two alternates, if the jurors decide the defendants were at fault.
In a key ruling on Wednesday - with the jury absent - Needham refused to allow the state to take shelter behind the "public duty" defense, which armors the state against damages for actions performed in the course of official procedures.
The judge earlier had challenged Timothy J. Conlon, Gill's lawyer, to demonstrate that the state was negligent.
"There must be proof that a duty existed and that there was a breach of that duty," he told Conlon. "The whole concept of liability is predicated upon the foreseeability of damages or injury."
After additional argument, Needham said he was satisfied.
The judge ruled that there was "much sense in what Mr. Conlon has put on the record as relates to children."
He added, "The State of Rhode Island acted as a protector to the point where (the state) intervened" to remove Gill from his mother's custody and place him in various facilities.
"Once they do that," he continued, "these children become a specified, discernible group. (The state) assumed custody and control. I don't think many of us would allow the state to put them in pup tents and tell them to cook their meals over a fire. That would be outrageous. The state acted in loco parentis. Once the state assumed control and custody, they assumed a special duty. I will not apply the public duty doctrine as a shield in this case."
According to testimony by various witnesses and by Gill himself, Gill was not quite 8 when he first told a state social worker that his mother's boyfriend had done "nasty things" to him.
Conlon said the boyfriend later was convicted of molesting Gill.
Gill was placed in the St. Aloysius Home from 1979 to 1983, the first step in a series of foster homes and other facilities. He alleged that McIntyre and staff members at St. Aloysius engaged in sex acts with him.
William A. Poore, representing McIntyre and the orphanage, challenged the characterization of the acts as sexual.
"There is no evidence of negligent supervision," Poore said. "This boils down to an arm around a child to show affection in a group bereft of normal affection. Here were 90 homeless, parentless children Q should they not be able to hold a child, to kiss a child? There has been no standard (of abuse) set here, and no evidence of a breach of that standard."
Linn F. Freedman, representing the state, said there was "absolutely no evidence that the Department (of Children, Youth and Families) was aware a child was being molested by workers at St. Aloysius. There is nothing in the record that this child engaged in sex at all."
In opening the defense's case yesterday, Poore told the jury, "The care rendered to this young man was fair and reasonable and attendant to the many problems we all acknowledge he had." He reminded the jury that McIntyre had denied the allegations against him, and said another state witness, due to testify today, also will deny similar allegations.
Dr. Jeffrey Hunt, a psychiatrist and a clinical assistant professor at the Brown University School of Medicine, testified as an expert witness in a defense bid to counter earlier testimony by Dr. Steven Feldman, a psychiatric witness called by Conlon to comment on Gill's behavioral problems and background.
Hunt said that, after studying the report by Feldman, he concluded that Feldman had not used proper "protocols" in evaluating Gill during an examination last month.
He said Feldman failed to ask about Gill's medical history, his family history, and the alleged abuse by Gill's mother and her boyfriend. He said the Feldman report also failed to examine social and psychiatric factors.
"His interview style was only questions about the litigation," Hunt said of Feldman. He said Feldman took Gill's assertions at face value and failed to seek corroboration.
When Freedman asked whether flashbacks, nightmares and sleep disturbances reported by Gill could have been due to withdrawal from cocaine and heroin addictions, Hunt replied that he could not say so with certainty, "but, yes, you can have an altered state of consciousness with withdrawal from cocaine, which causes nightmares and sleep disturbances."
Conlon, cross-examining, elicited admissions from Hunt that the record showed no treatment for sex abuse had been administered to Gill, and pointed out that, unlike Feldman, Hunt had never seen Gill.
Responding to a remark by Hunt that Gill might have been deliberately trying to mislead Feldman, Conlon asked, "He wasn't planning a lawsuit at the age of 7 or 8, was he?"
Hunt conceded that was true.
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