PBCBA BAR BULLETINS pbcba_bulletin_April 2019 | Page 24

PROBATE C o r n e r
DCF Reporting - Immunity From Liability?
DAVID M. GARTEN
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.
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downplayed, if not altogether superseded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).
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 In the context of slander, bad faith and
a vulnerable adult which is made in good express malice are synonymous. The
faith to the central abuse hotline.”
defense of good faith places upon the
plaintiff the burden of proving express
GOOD FAITH v. EXPRESS MALICE: “The malice. See Nodar v. Galbreath, 462 So. 2d
concept of ‘good faith’ is often either 803 (Fla. 1984), wherein the court stated:
undefined by case law or left unclear. At “The legal conclusion that the defendant’s
times, it is described in terms of its inverse- 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.”
(Coninued on next page.)
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