Day on Torts
As a Tennessee injury lawyer I receive calls from time to time from parents of children who have been injured by a foster parent. Indeed, several years ago our firm represented a parent of a pregnant teenager who was killed as a result of careless driving by her foster parent.
Can a person injured by the negligence of a foster parent sue the foster parent? Can the parents of a foster child sue the foster parent if the foster parent negligently causes the death of the foster child? In Tennessee, the answer is "no."
Under Tennessee law, a foster parent is deemed to be a state employee and is immune from a lawsuit for injuries or death caused by the negligence of the foster parent. Here is the provision from the Tennessee Code that defines "state employee" to include foster parents:
‘State employee’ means any person who is a state official, including members of the general assembly and legislative officials elected by the general assembly, or any person who is employed in the service of and whose compensation is payable by the state, or any person who is employed by the state whose compensation is paid in whole or in part from federal funds, but does not include any person employed on a contractual or percentage basis. ‘State employee’ includes a foster parent under a contract with the state of Tennessee to provide foster home care for children in the care and custody of the state and within the confines of the foster parent-child relationship.
Tenn. Code Ann. Sec. 8-42-101 (3) (A) (emphasis added).
This does not mean that the personal injury or wrongful death victim has no rights, however. Because the foster parent is treated as a state employee, the State of Tennessee is liable for the negligent acts and omissions of the foster parent under many circumstances, including the operation of a motor vehicle. Here is the relevant statute.
Ordinarily, a personal injury or wrongful death case against the State of Tennessee must be filed in the state Claims Commission. The case is heard by one of three claims commissioners, not a jury. The cases are defended by the Tennessee Attorney General’s office. The Tennessee Rules of Civil Procedure and Evidence generally apply during the preparation and trial of these cases, with some exceptions. Damages are determined as they are otherwise determined under Tennessee law, but no punitive damages may be awarded. The maximum damage award against the State of Tennessee in claims arising out of the negligence of state employees is $300,000 per person, $1,000,000 per occurrence.
What happens when a foster parent intentionally harms a foster child? That will be the subject of a future post.