PROBATE CORNER

By: David M. Garten, Esq.

ARTICLE: DCF Reporting – Immunity From Liability?

Sec. 415.1034, F.S., titled “Mandatory reporting of abuse, neglect, or exploitation of vulnerable adults; mandatory reports of death” reads in relevant part: “(1) MANDATORY REPORTING.— (a) Any person…who knows, or has reasonable cause to suspect, that a vulnerable adult has been or is being abused, neglected, or exploited shall immediately report such knowledge or suspicion to the central abuse hotline.”

Sec. 415.1036, F.S. titled “Immunity” reads in relevant part: “(1) Any person who participates in making a report under s. 415.1034 or participates in a judicial proceeding resulting therefrom is presumed to be acting in good faith and, unless lack of good faith is shown by clear and convincing evidence, is immune from any liability, civil or criminal, that otherwise might be incurred or imposed. This section does not grant immunity, civil or criminal, to any person who is suspected of having abused, neglected, or exploited, or committed any illegal act upon or against, a vulnerable adult. Further, a resident or employee of a facility that serves vulnerable adults may not be subjected to reprisal or discharge because of the resident’s or employee’s actions in reporting abuse, neglect, or exploitation pursuant to s. 415.1034.” [emphasis added]. The term “good faith” is not defined in Ch. 415, F.S.

Pursuant to §415.102(10), F.S., the term “false report” means “a report of abuse, neglect, or exploitation of a vulnerable adult to the central abuse hotline which is not true and is maliciously made for the purpose of: (a) Harassing, embarrassing, or harming another person; (b) Personal financial gain for the reporting person; (c) Acquiring custody of a vulnerable adult; or (d) Personal benefit for the reporting person in any other private dispute involving a vulnerable adult. The term “false report” does not include a report of abuse, neglect, or exploitation of a vulnerable adult which is made in good faith to the central abuse hotline.”

GOOD FAITH v. EXPRESS MALICE: “The concept of ‘good faith’ is often either undefined by case law or left unclear. At times, it is described in terms of its inverse-lack of “bad faith.” At other times, the term good faith is coupled with lack of “malice,” a concept that is equally amorphous. The significance of this shifting definition is consequential, for the casual use of the term suggests incoherence within the doctrine of qualified privilege. If a privilege arises only upon a showing of “good faith,” then the establishment of that element does not square with one of the customary ways of overcoming that privilege – a showing of “actual malice.” …. The complexity and redundancy of the law in the area has left it open to the argument that the interests covered by the doctrine can be adequately addressed by either a simple negligence standard or an actual malice standard. In either event, the set of inquiries in such matters would be limited to questions of accuracy regarding the information. Improper motives, including the “common law malice” abuse-i.e., ill will, spite, etc.-are downplayed, if not altogether superseded by this position. However, the importance of motives and discretion markers, and the indispensable nature of contextual evidence that privileged occasions present, counsel caution when considering an appropriate rule. Inquiries into motives highlight the permissible use of the occasion (why is the statement being made?) that is a function distinct from the permissible range of a communication made upon a sanctioned occasion (of what is the statement composed, to whom is it being made, and by what manner?), which the discretion markers highlight. Such inquiries are also distinct from the permissible level of accuracy about communication (to what degree is the truth known?) used to effect the sanctioned purpose.” See A.G. Harmon, Defamation in Good Faith: An Argument for Restating the Defense of Qualified Privilege, The Catholic University of America, Columbus School of Law, 16 BARRY L. REV. 27 (2011).

In the context of slander, bad faith and express malice are synonymous. The defense of good faith places upon the plaintiff the burden of proving express malice. See Nodar v. Galbreath, 462 So. 2d 803 (Fla. 1984), wherein the court stated: “The legal conclusion that the defendant’s remarks were privileged brings us to the question of express malice. If the statements were made without express malice — that is, if they were made for a proper purpose in light of the interests sought to be protected by legal recognition of the privilege — then there can be no recovery. The determination that a defendant’s statements are qualifiedly privileged eliminates the presumption of malice attaching to defamatory statements by law. The privilege instead raises a presumption of good faith and places upon the plaintiff the burden of proving express malice — that is, malice in fact as defined by the common-law doctrine of qualified privilege.”

EXPRESS MALICE: Express malice is defined as follows: “Where a person speaks upon a privileged occasion, but the speaker is motivated more by a desire to harm the person defamed than by a purpose to protect the personal or social interest giving rise to the privilege, then it can be said that there was express malice and the privilege is destroyed. Strong, angry, or intemperate words do not alone show express malice; rather there must be a showing that the speaker used his privileged position “to gratify his malevolence.” If the occasion of the communication is privileged because of a proper interest to be protected, and the defamer is motivated by a desire to protect that interest, he does not forfeit the privilege merely because he also in fact feels hostility or ill will toward the plaintiff.” SeeDemby v. English, 667 So. 2d 350 (Fla. 1st DCA 1995) citing Nodar v. Galbreath, 462 So. 2d 803 (Fla. 1984). See also Florida Jury Instruction MI 4.3, Defamation: Private Claimant, Nonmedia Defendant With or Without Qualified Privilege, which reads in relevant part: “The issues for your determination on the claim of (claimant) against (defendant) are:….Issue whether defendant abused qualified privilege: The issue for your determination is therefore whether, as (claimant) contends, (defendant) made the statement with improper motives abusing that privilege. One makes a false statement about another with improper motives if one’s primary motive and purpose in making the statement is to gratify one’s ill will, hostility and intent to harm the other, rather than [to advance or protect (defendant’s) interest, right or duty to speak to (name) on that subject] [or] [to advance or protect the interests of the person to whom the statement was made].”

CONCLUSION: The term “good faith” as used in §415.1036, F.S. is not defined. However, if the report to the central abuse hotline is not false [as defined in §415.102(10)], or made with express malice [as defined in Nodar], then it is arguably made in good faith and would be a complete defense to an action for slander.