State Cleared in Orphanage-Abuse Case

By Thomas J. Morgan
Providence Journal-Bulletin
July 21, 1999

But Judge Thomas Needham leaves the door open for future liability suits against the state if it can be demonstrated that the state has a special duty to care for children in its custody.


PROVIDENCE - A Superior Court jury yesterday rejected a man's claim that he had suffered at the hands of the state when it took custody of him as a small child and sent him to a Catholic orphanage.

The trial, which began June 24, ended only three hours after Judge Thomas H. Needham delivered his charge to the jury and sent the four men and two women off to deliberate.

The verdict cleared the state Department of Children, Youth and Families and the former St. Aloysius orphanage in Smithfield.

Also released from liability was a former priest, Robert McIntyre, who was director of the orphanage when Shawn Gill, now 28, was housed there by state order from 1979 to 1983. Gill had testified that McIntyre was among those who molested him, and he said state workers did the same on other occasions.

Timothy J. Conlon, Gill's lawyer, said after the swift verdict that he was "certainly very disappointed that this jury would perceive the care this child received as reasonable."

But still he pronounced himself "very pleased" at a ruling by Needham that the state could be stripped of its immunity to liability suits if it can be demonstrated that the state had a "special duty" to care for children in its custody.

Conlon said he has a half-dozen similar cases waiting in the wings, all involving former state wards, to which the legal principle might apply. He said he would make no immediate decision on an appeal in the Gill case.

Linn F. Freedman, who represented the state, called the jury "very attentive" and said the jurors "looked at the evidence presented and did the right thing."

William A. Poore, who represented McIntyre and the orphanage, said after the court recessed that Gill had been the weak link in the case.

"He had serious credibility problems as a witness," Poore said, citing foremost Gill's admission on the stand that he had committed perjury for money while under the influence of drugs in the same courthouse several years ago.

Gill's testimony and the portrait of his childhood as it emerged through state records were linchpins of Conlon's case, replete as they were with squalid details involving his early childhood fantasies of being a girl and of being Wonder Woman, and being the victim of sexual assault at the hands of his stepfather, Arthur "Sunny" Fontaine, who was convicted of molesting him.

It was the Sunny Fontaine connection that Poore was referring to. After first alerting Central Falls police that Fontaine had assaulted him, Gill recanted his testimony, admitting that he did so for a payment of $ 1,000 in cash that he spent on cocaine. He testified that he had lied under oath in trying to clear Fontaine.

Gill has served time at the Rhode Island Training School for Youth and at the Adult Correctional Institutions for various offenses, including escape and car theft. As a teenager, he said, he worked as a prostitute.

However, aside from Gill's credibility difficulties, "It's a very salable theory," Poore said of Conlon's contention that the state can be held liable for causing or contributing to psychological trauma experienced by children who are removed from their parents. "It goes to the heartstrings," he said.

Although Needham did not comment on Gill's credibility, he told the lawyers from the bench after the jury had been dismissed that he believed Conlon made enough of a case for a jury to deliver a verdict in favor of Gill on the counts charging the state with negligence. As for a charge that the state and St. Aloysius Home had committed a breach of contract, he said evidence was lacking.

When instructing the jury on points of law before deliberations began, Needham told them that the state ordinarily is immune to claims of liability when performing its official duties except in the case of "special circumstances."

He said the jury could hold the state responsible if Gill had proved that the state "owed a special duty that overcomes the traditional immunity from liability" or was guilty of "egregious conduct."

He defined egregious conduct as a "grossly wrong or extreme" series of actions by the state.

"Then, 'special immunity' must be ignored," he said.

Another unusual aspect in the case was that Gill sought no specific amount of money in damages.

Instead, he asked that the state be responsible for providing him with the psychiatric care that he said should have been provided during his upbringing.

For the purposes of the case, this requirement was defined by Dr. Steven Feldman, an expert witness testifying for Gill, who said Gill needed a course of two to five years of treatment by "a super-qualified psychiatrist."

Needham told the jury, "It would be wrong of you to award damages to make up for a bad life Q the plaintiff doesn't want that."


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