Brittany Nicole Howe, Individually and as Natural Tutrix of Grayson Konrad, a Minor v. Samantha Gafford and the Department of Children and Family Services, State of Louisiana

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #049

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 25th day of October, 2024 are as follows:

BY Griffin, J.:

2023-C-01649 BRITTANY NICOLE HOWE, INDIVIDUALLY AND AS NATURAL TUTRIX
OF GRAYSON KONRAD, A MINOR VS. SAMANTHA GAFFORD AND
THE DEPARTMENT OF CHILDREN AND FAMILY SERVICES, STATE
OF LOUISIANA (Parish of Desoto)

REVERSED AND REMANDED. SEE OPINION.

Retired Judge Charles Lee Porter, appointed Justice ad hoc, sitting for
McCallum, J., recused.

Weimer, C.J., dissents and assigns reasons.
Crichton, J., additionally concurs and assigns reasons.
Crain, J., concurs and assigns reasons.

SUPREME COURT OF LOUISIANA

No. 2023-C-01649

BRITTANY NICOLE HOWE, INDIVIDUALLY AND AS NATURAL
TUTRIX OF G.K., A MINOR

VS.

SAMANTHA GAFFORD AND THE DEPARTMENT OF CHILDREN AND
FAMILY SERVICES, STATE OF LOUISIANA

On Writ of Certiorari to the Court of Appeal, Second Circuit, Parish of Desoto

GRIFFIN, J.

We granted this writ to determine whether there is a non-delegable duty of

care and well-being owed by the Louisiana Department of Children and Family

Services (“DCFS”) to children in its legal custody. We hold that such a custodial

duty exists and DCFS is liable for the acts of foster parents who breach that duty

irrespective of an employer/employee relationship.

FACTS AND PROCEDURAL HISTORY

This case involves grievous injuries to an infant child, G.K., while in the legal

custody of DCFS and the physical care of his foster parent, Samantha Gafford.

Brittany Howe, G.K.’s biological mother, filed suit individually and as natural tutrix

of G.K. (“Plaintiffs”) against Ms. Gafford and DCFS1 – the details of which are

recounted in this Court’s prior opinion wherein we found Plaintiffs stated a valid

cause of action against DCFS. See Kunath v. Gafford, 20-1266 (La. 9/30/21), 330

So.3d 161. DCFS subsequently filed a motion for summary judgment arguing

Kunath effectively overturned the non-delegable duty first articulated in Vonner v.


Justice Jeannette Theriot Knoll, retired, appointed Justice Pro Tempore, sitting for the vacancy
in Louisiana Supreme Court District 3. Retired Judge Charles L. Porter, appointed Justice ad hoc,
sitting for Justice Jay B. McCallum, recused.
1
G.K. was adopted by Jason and Johnna Kunath who were substituted as plaintiffs.

State Through Dept. of Public Welfare, 273 So.2d 252 (La. 1973), and affirmed in

Miller v. Martin, 02-0670 (La. 1/28/03), 838 So.2d 761, and that there is no genuine

issue of material fact that Ms. Gafford was not its employee. The trial court,

agreeing with DCFS, granted the motion for summary judgment. The court of

appeal affirmed reasoning that La. R.S. 42:1441.1 “statutorily prohibits DCFS from

being held liable, be it vicariously, strictly, or via a judicially created ‘nondelegable

duty,’ for actions of foster parents merely because the person who performed the

alleged act was a foster parent at the time of the alleged incident.” Howe v. Gafford,

55,343, p. 13 (La.App. 2 Cir. 11/15/23), 374 So.3d 1065, 1073. It concluded that

the statute “represents a clear legislative expression that neither the state nor any

state agency can be held liable for the actions of another unless such person is an

official, officer, or employee of the state – Ms. Gafford was none of these.” Id.,

55,343, p. 14, 374 So.3d at 1073.

Plaintiffs’ writ application to this Court followed, which we granted. Howe

v. Gafford, 23-1649 (La. 3/5/24), 379 So.3d 1259.

DISCUSSION

The primary issue before this Court is whether summary judgment was

appropriately granted – specifically, whether La. R.S. 42:1441.1 statutorily

abrogated the non-delegable duty of care and well-being owed by DCFS to children

in its legal custody (“non-delegable duty”).2 Statutory interpretation is a question of

law subject to de novo review. Benjamin v. Zeichner, 12-1763, p. 5 (La. 4/5/13),

113 So.3d 197, 201. Similarly, appellate courts review the grant or denial of a

2
Contrary to the position of DCFS, and any inference therefrom by the lower courts, this Court
did not overrule Vonner and Miller in Kunath wherein we found simply that Plaintiffs alleged a
valid cause of action in conformity with La. R.S. 42:1441.1 and La. R.S. 13:5108.1. See
Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1239 (La. 1993) (“If
there are two or more items of damages or theories of recovery which arise out of the operative
facts of a single transaction or occurrence, a partial judgment on an exception of no cause of action
should not be rendered to dismiss one item of damages or theory of recovery.”).
2

motion for summary judgment de novo using the same criteria as trial courts.

Bernard v. Ellis, 11-2377, p. 10 (La. 7/2/12), 111 So.3d 995, 1002.

The non-delegable duty was first articulated in Vonner v. State Through Dept.

of Public Welfare wherein this Court held that where the state obtains legal custody

of a child it has the “‘responsibility to provide for the physical, mental, moral and

emotional well-being of the child.’” 273 So.2d at 256 (quoting former La. R.S.

13:1569(5) (defining “custody”)). This Court then recognized that while former La.

R.S. 46:52(8) allowed the state to contract with foster parents to fulfill this duty, the

statute did not authorize the state to divest itself of this duty by such contracts.

Vonner, 273 So.2d at 256. The state is therefore liable for the actions of foster

parents as its duty arises out of the legal custody of a child and it cannot evade its

civil responsibility for physical abuse of a child caused by a breach of this duty. Id.

Under this analysis, this Court found it unnecessary to determine whether foster

parents were servants of the state. Id., 273 So.2d at 256 n. 3.

The existence of the non-delegable duty was challenged thirty years later in

Miller v. Martin wherein this Court observed that, notwithstanding the

reorganization of the relevant statutory provisions in the Children’s Code, the state’s

duty of care and well-being owed to children in its legal custody remained

substantially the same.3 02-0670, pp. 9-10, 838 So.2d at 766-67 (citing La. Ch.C.

art. 116(12)). This Court further noted that the provision related to the state’s ability

to contract with foster parents read identical to the provision in Vonner – no changes

were made to indicate the state had the ability to delegate its custodial duty. Miller,

3
The definition of “legal custody” in La. Ch.C. art. 116(12) and relied upon in Miller remains
unchanged to date and provides:

“Legal custody” means the right to have physical custody of the child and to
determine where and with whom the child shall reside; to exercise the rights and
duty to protect, train, and discipline the child; the authority to consent to major
medical, psychiatric, and surgical treatment; and to provide the child with food,
shelter, education, and ordinary medical care, all subject to any residual rights
possessed by the child's parents.
3

02-0670, p. 10, 838 So.2d at 767 (citing La. R.S. 46:51(8)). “Thus, once the state

obtains custody of a child, the law imposes upon the state the ultimate duty of care.”

Id. This “custodial duty to those children is so great that it cannot be delegated to

foster parents” and the state is therefore liable for those acts of foster parents that

cause a breach of the state’s custodial duty. Id., 02-0670, p. 12, 838 So.2d at 768

(citing Vonner, 273 So.2d at 256 n. 3).

The legislature adopted La. R.S. 42:1441.1 in the years intervening Vonner

and Miller. The statute provides:4

Civil Code Article 2320 and other laws imposing liability on a master
for the offenses and quasi offenses of his servant shall not extend or
apply to and shall not impose liability on the state for the offenses and
quasi offenses of any person who is not expressly specified by R.S.

4
La. C.C. art. 2320 states, in relevant part: “Masters and employers are answerable for the damage
occasioned by their servants and overseers, in the exercise of the functions in which they are
employed. [….] The master is answerable for the offenses and quasi-offenses committed by his
servants, according to the rules which are explained under the tile: Of quasi-contracts, and of
offenses and quasi-offenses.”

La. R.S. 13:5108.2 referenced within was repealed by Acts 2000, No. 65, § 2. The substance of
the law is now found in La. R.S. 13:5108.1 which provides, in relevant part:

(A)(1) The state shall defend and indemnify a covered individual against any claim, demand, suit,
complaint, or petition seeking damages filed in any court over alleged negligence or other act by
the individual, including any demand under any federal statute when the act that forms the basis
of the cause of action took place while the individual was engaged in the performance of the duties
of the individual's office, employment with the state, or engaged in the provision of services on
behalf of the state[.]

***

(E) As used in this section “covered individual” includes:

(1) An official, officer, or employee holding office or employment:

(a) In the executive branch of state government or in any department, office, division, or
agency thereof.

***

(3) “Covered individual” does not include:

(a) An official, officer, or employee of a municipality, ward, parish, special district,
including without limitation a levee district, school board, parish law enforcement
district, or any other political subdivision or local authority…

(b) District attorneys, sheriffs, assessors, clerks of district courts, coroners, justices of the
peace, constables, mayor's courts, city courts, marshals, nor the officials, officers, or
employees thereof.

4

13:5108.2(A) to be an official, officer, or employee of the state entitled
to indemnification under R.S. 13:5108.2.

Despite its enactment preceding Miller by nearly two decades, the above provision

was neither argued by the litigants therein nor otherwise discussed by this Court.

DCFS argues this Court erred in Miller as La. R.S. 42:1441.1 statutorily

abrogated the non-delegable duty articulated in Vonner. DCFS further argues that

the decision in Miller unconstitutionally violated the separation of powers by

creating a new category of actors for whom the state shall be held vicariously liable.

See La. Const. art. XII, § 10(C) (granting the legislature the power to limit by law

the extent of liability of the state, state agency, or political subdivision). Plaintiffs

counter that liability under the non-delegable duty is separate and distinct from that

which derives from the master-servant relationship addressed in La. R.S. 42:1441.1.

We agree.

The duty of the state to protect children in its legal custody is rooted in the

positive law.5 See Miller, 02-0670, pp. 9-10, 838 So.2d at 766-67 (citing La. Ch.C.

art. 116(12)). This duty under La. Ch.C. art. 116(12) is distinct from and not

predicated on vicarious liability arising from a master-servant relationship – it is an

affirmative duty owed by the state in the first instance. The limitation on the liability

of the state adopted in La. R.S. 42:1441.1 expressly applies only to laws “imposing

liability on a master for the offenses and quasi offenses of his servant.” Thus, by its

own terms, the statute is inapplicable to the duty of care and well-being DCFS owes

to children in its legal custody. See Vonner, 273 So.2d at 256 n. 3; Miller, 02-0670,

p. 14, 838 So.2d at 769.

5
Because we re-affirm the non-delegable duty articulated in Vonner and Miller, we pretermit
determination of whether there is a genuine issue of material fact as to an employer/employee
relationship between Ms. Gafford and DCFS. We also pretermit determination of Plaintiffs’ claim
for damages under La. C.C. art. 2315.8 prior to a trial on the merits.

5

The legislative findings and purposes, codified in La. R.S. 42:1441.4, further

demonstrate the narrow scope of the legislation – to address the issue of whether the

state or a local governmental entity is responsible for the torts of local officials and

employees. See Morgan v. Laurent, 06-0467, p. 9 (La.App. 5 Cir. 12/27/06), 948

So.2d 282, 287 (citing David W. Robertson, Tort Liability of Governmental Units in

Louisiana, 64 Tul.L.Rev. 857, 873 (March 1990)). The listed examples of

“misinterpretations and misapplications” support this conclusion.6 See La. R.S.

42:1441.4(2) and (3); Foster v. Hampton, 352 So.2d 197 (La. 1977) and 381 So.2d

789 (La. 1980); Mullins v. State, 387 So.2d 1151 (La. 1980); Hryhorchuk v. Smith,

390 So.2d 497 (1980). “The clear meaning of R.S. 42:1441, 42:1441.1, 42:1441.2,

and 42:1441.3 is to restrict master-servant liability to traditional boundaries of

control and economic benefit. These statutes attempt ‘to establish a comprehensive

theory of vicarious liability for the torts of local officials and those who work for

them.’” Morgan, supra (emphasis added) (quoting Kenneth M. Murchison, Local

Government Law, 46 La.L.Rev. 491, 523 (Jan. 1986)); see also La. R.S.

13:5108.1(E)(3) (excluding from “covered individuals” the same type of local

government employees and officials at issue in the cited examples of

“misinterpretations and misapplications” of La. R.S. 42:1441.4).

Additionally illuminating is what the legislature did not do. Notably absent

in the legislative findings is any reference to Vonner despite it predating the

enactment of La. R.S. 42:1441.1 by twelve years. Over twenty years have now

elapsed since Miller reaffirmed the non-delegable duty without any specific

legislative action. Coupled with our analysis above, we interpret this prolonged

silence as legislative acquiescence to the non-delegable duty articulated in Vonner

6
Listed examples of “correctly interpreted” decisions relate to the same narrow issue. See La.
R.S. 42:1441.4(4); Martinez v. Reynolds, 398 So.2d 156 (La.App. 3rd Cir. 1981); Sullivan v.
Quick, 406 So.2d 284 (La.App. 3rd Cir. 1981).

6

and Miller.7 See Borel v. Young, 07-0419, pp. 21-22 (La. 11/27/07), 989 So.2d 42,

65; Fontenot v. Reddell Vidrine Water Dist., 02-0439, pp. 13-14 (La. 1/14/03), 836

So.2d 14, 24.

DCFS’s argument that Miller is unconstitutional in violation of separation of

powers is similarly unavailing. The non-delegable duty is rooted in the positive law

which La. R.S. 42:1441.1 does not abrogate. The mere passage of time should not

present an open invitation for litigants to seek “re-interpretation” of laws they find

unfavorable. To hold otherwise would turn courts into super-legislatures effectively

amending the positive law through the guise of interpretation when the legislature

has chosen to remain silent. See La. Const. art. II, § 2; State v. Vallery, 212 La.

1095, 1099, 34 So.2d 329, 331 (1948). Rewriting statutes is not the role of the

courts. Kelly v. State Farm Fire & Cas. Co., 14-1921, p. 20 (La. 5/5/15), 169 So.3d

328, 340.

DECREE

For the foregoing reasons, the lower courts are reversed, and the matter is

remanded to the trial court for proceedings consistent with this opinion.

REVERSED AND REMANDED

7
In recent years the legislature has demonstrated its rapid ability to respond to decisions of this
Court it determines are in derogation of the legislative will. See, e.g., Rismiller v. Gemini Ins. Co.,
20-0313 (La. 6/30/21), 330 So.3d 145 statutorily abrogated by Acts 2022, No. 718, § 1; Zapata v.
Seal, 20-1148 (La. 9/30/21), 330 So.3d 175 statutorily abrogated by Acts 2023, No. 317, § 1.
7

SUPREME COURT OF LOUISIANA

No. 2023-C-01649

BRITTANY NICOLE HOWE, INDIVIDUALLY AND AS NATURAL
TUTRIX OF G.K., A MINOR

VS.

SAMANTHA GAFFORD AND THE DEPARTMENT OF CHILDREN AND
FAMILY SERVICES, STATE OF LOUISIANA

On Writ of Certiorari to the Court of Appeal, Second Circuit, Parish of Desoto

WEIMER, C.J., dissenting.

Having long been of the opinion that a nondelegable duty of care owed by

DCFS to children in its legal custody does not exist, I must respectfully dissent.

In Miller v. Martin, 02-0670 (La. 1/28/03), 838 So.2d 761, this court

reaffirmed the holding of Vonner v. State, Dep’t. of Pub. Welfare, 273 So.2d 252

(La. 1973), imposing a nondelegable duty of care on DCFS as the legal custodian of

the child. As evidenced by my dissent in Miller, I believed–and continue to

believe–that such holding was in error because there is no statutory or legal

justification to impose a nondelegable duty of care on DCFS. See, Miller, 838 So.2d

at 770 (Weimer, J., dissenting for the reasons assigned by Victory, J.).

Unquestionably, when DCFS obtains legal custody of a child, there is a duty to

protect the child. La. Ch.C. art. 116(12). However, the majority opinion employs an

overly broad application of this Article and effectively uses it to authorize the

imposition of vicarious liability on DCFS as custodian, although an intentional tort

was committed by a third person. I continue to find no statutory support for the

majority’s position, only jurisprudential authority. Louisiana is a civilian jurisdiction

and employs a civilian methodology; further, the civil code instructs that the sources

of law are legislation and custom, and that legislation is the superior source of law.

La. C.C. arts. 1, 3; Willis-Knighton Med. Ctr. v. Caddo Shreveport Sales & Use

Tax Comm’n, 04-0473, p. 21 (La. 4/1/05), 903 So.2d 1071, 1085.

Although La. R.S. 42:1441.1 was not at issue in Vonner or Miller, this

statutory provision provides support for overruling those decisions. Louisiana R.S.

42:1441.1 provides that the state can only be vicariously liable for those who are

officials, officers, or employees of the state. Here, it has been established that the

foster mother is neither an official, officer, nor employee and, thus, DCFS cannot be

vicariously liable for her actions based on the clear language of La. R.S. 42:1441.1.

Importantly, in this case there are no remaining causes of action for liability of

DCFS arising out of breach of its statutory duties as the legal custodian of the minor

child. While there are certainly statutory duties imposed on DCFS relative to care of

foster children, all of the plaintiffs’ claims related to such allegations of fault on the

part of DCFS have already been dismissed with prejudice. In my opinion, the only

potential remaining claim against DCFS was based on a theory of vicarious liability

for the actions of the foster parent under La. R.S. 42:1441.1, and that claim should

also be dismissed because the foster mother was not an employee of DCFS.

Consistent with my dissent in Miller, I would affirm the ruling of the court of

appeal and, therefore, dissent.

2

SUPREME COURT OF LOUISIANA

No. 2023-C-01649

BRITTANY NICOLE HOWE, INDIVIDUALLY AND AS NATURAL
TUTRIX OF G.K., A MINOR

VS.

SAMANTHA GAFFORD AND THE DEPARTMENT OF CHILDREN AND
FAMILY SERVICES, STATE OF LOUISIANA

On Writ of Certiorari to the Court of Appeal, Second Circuit, Parish of Desoto

CRICHTON, J., additionally concurs and assigns reasons.

I agree with the majority but write separately to express the policy concerns

underlying my vote. Admittedly, I struggled with this case, but in my final analysis

concluded that the nondelegable duty announced in Vonner v. State Through Dept.

of Public Welfare, 273 So.2d 252 (La. 1973) and affirmed in Miller v. Martin, 2002-

0670 (La. 1/28/03), 838 So.2d 761, remains not only unabrogated by subsequent

legislation, but also consistent with the Louisiana Children’s Code’s paramount

concern for the “health, welfare, and safety” of this state’s children. See e.g., La.

Ch.C. arts. 601, 603, 625.1, 682. As this Court explained in Vonner, “[w]hen the

Department obtains or accepts the custody of children, it becomes directly

responsible for their care and well-being. It cannot insulate itself from this

responsibility by contracting it out to others to fulfill.” Id., 273 So.2d at 255.

There are two additional factors that were critical to my decision. First, as the

majority observes, in the over half-century since Vonner was decided, the legislature

has taken no action to interfere with the nondelegable duty announced therein. Nor

has the legislature passed any statute in response to Miller, which was decided in

2003—18 years after R.S. 42:1441.1 was enacted. I agree with the majority that this

inaction amounts to legislative acquiesce to Vonner’s imposition of a nondelegable

duty on the Department of Children and Family Services (the Department). Second,

history has shown the imposition of the Vonner nondelegable duty on the Department

has not opened a pandora’s box of frivolous litigation nor a floodgate of lawsuits

threatening to bankrupt the Department. Indeed, there are only three reported

opinions finding the Department liable for harm suffered by children in its custody

caused by the intentional torts of foster parents—Vonner, 273 So.2d 252; Miller,

2002-0670, 838 So.2d 761; and Cathey v. Bernard, 467 So.2d 9 (La. App. 1 Cir.

1985). 1 If the legislature sees fit to overturn the majority decision in this case, so be

it. But in the meantime, our authority rests on the civil law scheme established to

protect innocent children—a duty the Department of Children and Family Services

cannot forsake.

1
While the number of cases finding the Department liable under this theory is relatively low, the
duration of time over which those cases were decided along with the additional cases citing Vonner
or Miller for the notion of vicarious liability based on a nondelegable duty of care, together
supports a finding that they may form jurisprudence constante. See e.g., Cadwallader v. Allstate
Ins. Co., 2002-1637, pp. 7–8 (La. 6/27/03), 848 So.2d 577, 582; Washington v. State ex rel. Dep't
of Soc. Servs., 40,878, p. 7 (La. App. 2 Cir. 4/12/06), 927 So.2d 1224, 1228; Harris v. Stimac,
1999-2070, pp. 5–6 (La. App. 1 Cir. 9/22/00), 768 So.2d 265, 269; Scott v. Brewer, 31,279, p. 6
(La. App. 2 Cir. 12/11/98), 722 So.2d 1186, 1189; Gooden v. State, Dep't of Health & Human Res.,
546 So.2d 279, 280 (La. App. 3 Cir. 1989), writ denied, 551 So.2d 630 (La.1989); White v. White,
479 So.2d 588, 589 (La. App.1 Cir. 1985).

2

SUPREME COURT OF LOUISIANA

No. 2023-C-01649

BRITTANY NICOLE HOWE, INDIVIDUALLY AND AS NATURAL
TUTRIX OF G.K., A MINOR

VS.

SAMANTHA GAFFORD AND THE DEPARTMENT OF CHILDREN AND
FAMILY SERVICES, STATE OF LOUISIANA

On Writ of Certiorari to the Court of Appeal, Second Circuit, Parish of Desoto

CRAIN, J., concurs with reasons.

I concur. The legislature is presumed to enact each statute with deliberation

and with full knowledge of all existing laws on the same subject. State v. Campbell,

2003-3035 (La. 7/6/04), 877 So.2d 112, 117. La. R.S. 42:1441.1 is inapplicable

because the non-delegable duty does not arise from a master-servant relationship.

This court created this non-delegable duty in Vonner in 1973. While I disagree with

it, this duty has now existed for 51 years and was affirmed by this court in 2003.

The legislature should act to fix it.