The essentials of a tort.

[Dan Sullivan]

A tort is NOT as simple as "any wrongful action for which a civil suit can be brought."

The essential elements of a tort are,

1 - the existence of a legal duty owed by a defendant to a plaintiff,

2 - breach of that duty,

3 - and a causal relationship between defendants conduct and the resulting damage to the plaintiff.

[Dazeemay]

[Dan Sullivan]

I think that it is understood that it is not simple.

No law is simple. Everyone understands that. It is just common sense to know it.

I didn't say it was simple.

I said it wasn't as simple as... "any wrongful action for which a civil suit can be brought."

And the essentials wasn't from answers.com.

What I posted was from Barron's Law Dictionary... Steven H. Gifis, Associate Professor of Law Rutgers, The State Unviersity of New Jersey, School of Law Newark.

And you posted the dictionary definition.

If you scrolled down you would have seen the definition from the Thomson Gale Legal Encyclopedia,

"A body of rights, obligations, and remedies that is applied by courts in civil proceedings to provide relief for persons who have suffered harm from the wrongful acts of others. The person who sustains injury or suffers pecuniary damage as the result of tortious conduct is known as the plaintiff, and the person who is responsible for inflicting the injury and incurs liability for the damage is known as the defendant or tortfeasor.

Three elements must be established in every tort action. First, the plaintiff must establish that the defendant was under a legal duty to act in a particular fashion. Second, the plaintiff must demonstrate that the defendant breached this duty by failing to conform her behavior accordingly. Third, the plaintiff must prove that he suffered injury or loss as a direct result of the defendant's breach.

There's those three elements again.

[Greegor]

Dan, Could you please point out those three items
in this winning civil rights (Ch 42 Sec1983) and
whistleblower pleading?


http://www.pgh.aclu.org/pdf/20030529_cyf-complaint.pdf

1
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
PENNE S. FABIAN,
Plaintiff,
v.
MARC CHERNA, The Executive
Director of the Allegheny County Office
of Children, Youth and Families, in his
individual and official capacities,
and
The Allegheny County Office of
Children, Youth and Families,
and
Allegheny County, Pennsylvania,
Defendants.
Jury Trial Demanded
CIVIL DIVISION
No. GD 03-7820
Code: 009
COMPLAINT
Filed on behalf of plaintiff
Counsel of record for this party:
Timothy P. O’Brien, Esquire
PA I.D. No. 22104
1705 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219
(412) 232-4400
Jere Krakoff, Esquire
PA I.D. No. 13701
1705 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219
(412) 232-0276
1
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CIVIL DIVISION
________________________________
:
PENNE S. FABIAN, : No. GD-7820
:
Plaintiff, : Jury Trial Demanded
:
v. :
:
MARC CHERNA, The Executive :
Director of the Allegheny County Office :
of Children, Youth and Families, in :
his individual and official capacities, ::
and ::
The Allegheny County Office of :
Children, Youth and Families, ::
and ::
Allegheny County, Pennsylvania, ::
Defendants. :
________________________________ :
COMPLAINT
I. The Parties
1. Penne Fabian, an adult resident of Allegheny County,
Pennsylvania, brings this Section 1983 civil rights action to challenge, on First
Amendment free speech and state Whistleblower Law grounds, her termination
as an employee of the Allegheny County Office of Children, Youth and Families
following her efforts to bring to public light information that there were violations
of state Welfare Department regulations in the delivery of mandated services
2
within the agency ¾ violations which she believed placed children under the
agency’s jurisdiction at risk of additional abuse or neglect.
2. Marc Cherna, one of three defendants in this lawsuit, is and was at
the time of the operative events the Executive Director of Allegheny County
Office of Children, Youth and Families, an agency of County government that is
mandated by state law to provide social services to dependent or neglected
children as well as the families of such children. As described below, Cherna
terminated Ms. Fabian from her employment with the Agency in retaliation for her
legitimate efforts to bring to public light important information about the agency
relative to alleged deficiencies in the delivery of mandated services which, if true,
exposed children within the Agency’s jurisdiction to serious risk of harm. When
doing so, Cherna, who is sued in his individual capacity, acted under color of
state law within the meaning of 42 U.S.C. 1983 and as the County’s final
policymaker.
3. Defendant Allegheny County Office of Children, Youth and Families
is a County-level child welfare agency located in Pittsburgh. The Agency is
empowered and obligated by state law to provide social services to children who
have been adjudicated “dependent” or “neglected” as well as services to the
families of such children.
4. Defendant Allegheny County, a municipal corporation that funds
and operates the Allegheny County Office of Children, Youth and Families,
employed Penne Fabian at the time of her discharge from that agency. As
3
described below, the County acted through, Marc Cherna, when retaliating
against Ms. Fabian for her exercise of free speech and Whistleblower Law
activities.
4
II. The Factual Backdrop
5. Penne Fabian was employed by the Allegheny County Office of
Children, Youth and Families from April 4, 1988 until October 23, 2002, a period
of more than fourteen years.
6. In the course of her employment, Penne Fabian held a number of
positions within the Agency including that of case worker, in-home services
contract monitor, resource coordinator, and case practices specialist.
7. As a case practices specialist, her last position in the Office of
Children, Youth and Families, Ms. Fabian was responsible for ensuring that the
Agency provided quality service to children and families within its jurisdiction
based upon “best case practices” required by the laws and regulations that
governed the Agency. To accomplish that end, she had the specific
responsibilities of ensuring child safety, facilitating permanency planning
conferences, reviewing family service plans, and identifying violations of state
regulations within the Office of Children, Youth and Families.
8. In January of 2000, the Pennsylvania Department of Welfare, the
body that regulated the Allegheny County Office of Children, Youth and Families,
required the Agency to conduct a workload study designed to determine the
staffing levels needed to meet nationally recognized standards for the delivery of
child welfare services to families and children within the Agency’s jurisdiction.
9. In or about January of 2001, Marc Cherna, the Executive Director
of the Allegheny County Office of Children, Youth and Families, assigned Penne
5
Fabian the task of coordinating the workload study under the auspices of the
University of Pittsburgh School of Social Work.
10. As of the date Cherna assigned plaintiff the duty to coordinate the
work load study, she had always received excellent evaluations of her work
performance and was never disciplined for any alleged work-related deficiency or
misconduct.
11. Ms. Fabian, the only person from the Agency assigned to the workload
study, served on a committee with several University of Pittsburgh faculty members.
12. During the course of the workload study, Penne Fabian became aware of
data that led her to believe that the Office of Children, Youth and Families was in
violation of state regulations placing children serviced by the Agency at potential
heightened risk of abuse or neglect.
11. At a May, 2001 workload study progress committee meeting
attended by Cherna, Ms. Fabian informed Cherna of findings that there were
more than fifty caseworker vacancies and thirty-five unfilled support staff
positions in the Agency.
12. When apprised of these staff shortages, Cherna angrily denied the
accuracy of the reported statistics.
13. In June of 2002, the University of Pittsburgh School of Social Work
submitted to the Office of Children, Youth and Families a preliminary workload
study which reported that only 42 percent of the families who were required to be
monitored at monthly home visits were actually being seen on a monthly basis.
6
The preliminary report also included the above-referenced vacancy rate statistics
in caseworker and support staff positions; references to negative statements
about Agency services obtained from Agency personnel; and explicit references
to nationally recognized child welfare service standards identified by the
Pennsylvania Department of Welfare as the relevant guidelines for performing
the mandated workload study.
14. On July 16, 2002, the workload study committee convened a
meeting to review the June, 2002 preliminary report. The meeting was attended
by Fabian, University of Pittsburgh personnel, Marc Cherna, and the Agency’s
Assistant Director.
15. During the July 16, 2002 committee meeting, Cherna insisted that
the committee delete from any published report the statistic that only 42 percent
of the subject families received the required monthly home visit; that references
to the reported caseworker and support position vacancy rates be deleted; that
any negative information obtained from the interviews with Agency caseworkers
be deleted; and that references to the nationally recognized welfare service
standards upon which the study was based be removed.
16. Cherna’s cited reason for his dictate that the committee delete the
42 percent monthly family home visit statistic from its published report, was that
"it was too much of a sound bite” and the “media would be all over it”.
7
17. During the July 16, 2002 meeting, an angry Cherna cursed at
Fabian when she questioned the exclusion of relevant information from the
report.
18. Penne Fabian reported her concerns about Cherna’s demands to
delete relevant information from the committee’s report to the Agency’s deputy
director and to an Agency regional office director.
19. In advance of the publication of the committee’s final report, an
October 23, 2002 work group meeting was scheduled for the purpose of
reviewing the committee’s second preliminary report.
20. Before the meeting occurred, Fabian became aware of information
that her attendance at the October 23, 2002 meeting was not desired by Cherna.
21. On October 22, 2002, the day before the scheduled work group
committee meeting was to occur, Fabian questioned Cherna about whether she
was allowed to attend the scheduled work group meeting. Cherna informed her
that she would not be permitted to attend the work group meeting, nor would she
be permitted to convene the final Agency focus group meeting which had been
previously planned for the purpose of allowing the Agency’s staff to analyze and
offer feedback about the data obtained during the study.
22. In the course of the October 22, 2002 meeting, Fabian expressed
her concerns to Cherna about the proposed exclusion of pertinent data from the
final published report, Cherna became visibly angry. He terminated the
discussion, saying, "You are out of here."
8
23. On October 23, 2003, Cherna informed Fabian that she was fired,
giving as the reason the pretext that she had made false statements about the
Agency.
24. Contrary to Cherna’s pretextual reason for firing Fabian from the
Office of Children, Youth and Families she was, in fact, fired in retaliation for her
efforts to bring to light matters of public importance related to the Agency’s
delivery of services to dependent and neglected children; matters that she
believed to be true and believed were eroding the Agency’s capacity to protect
client children from serious harm.
25. Penne Fabian’s retaliatory discharge from public employment has
caused her to lose wages, benefits, and other remuneration and engendered
humiliation, embarrassment, emotional distress and damage to her reputation.
III. The Claim
26. The termination of Penne Fabian’s employment with the Office of
Children, Youth and Families, under the circumstances described above, violated
her right of free speech protected by the First Amendment to the United States
Constitution.
27. The termination of Penne Fabian’s employment with the Office of
Children, Youth and Families, as described above, violated rights secured to her
by the Pennsylvania W histleblower Law.
9
28. The termination of Penne Fabian’s employment with the Office of
Children, Youth and Families, as described above, constituted a wrongful
discharge in violation of public policy.
IV. The Requested Relief
The plaintiff requests the following relief:
1. Verdicts that the defendants abridged her right to free speech, violated the
Whistleblower Law, and wrongfully discharged her in retaliation for her
protected activities;
2. Awards of compensatory damages against the respective defendants;
3. An award of punitive damages against defendant Marc Cherna;
4. Reasonable attorneys’ fees, costs, and expenses incurred in the
prosecution of this action; and
5. Any other equitable relief that is appropriate under the facts of this case,
including reinstatement, back pay, front pay, restoration of seniority,
benefits and other remuneration.
Respectfully submitted,
Dated: May 28, 2003 ________________________________
Timothy P. O’Brien, Esquire
PA I.D. 22104
1705 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219
(412) 232-4400
Jere Krakoff, Esquire
10
PA I.D. 13701
1705 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA 15219
(412) 232-0276
On behalf of the Greater Pittsburgh
Chapter of the ACLU