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Kennery v. State of Vermont, Valcourt, LaBombard and Other Members of the Dept. of Public Safety
Citations: 191 Vt. 44; 2011 VT 121; 38 A.3d 35; 2011 Vt. LEXIS 129Docket: 2010-448
Court: Supreme Court of Vermont; November 23, 2011; Vermont; State Supreme Court
Original Court Document: View Document
Andrew Kennery, acting as the administrator of Gladys Kennery's estate, appeals a summary judgment from the Windham Superior Court that dismissed his claims of negligence, gross negligence, and civil rights violations against the State of Vermont and Vermont State Troopers Travis Valcourt and Francis LaBombard, III. The lawsuit arises from a welfare check requested by Gladys’s daughter after Gladys failed to call home following a doctor’s appointment. The troopers mistakenly checked the wrong residence, while Gladys collapsed in her backyard and was later found deceased due to hypothermia. The superior court ruled that the State owed no duty of reasonable care in conducting the welfare check, leading to the dismissal of the claims. However, the Supreme Court found that genuine issues of material fact exist regarding whether a duty of care was established under the Restatement (Second) of Torts 324A and whether the troopers breached that duty, implicating potential liability under the Vermont Tort Claims Act (VTCA). The court also concluded that the dismissal of the gross negligence claim against the troopers was erroneous. Consequently, the Supreme Court reversed the lower court’s decision and remanded the case for further proceedings. Essential undisputed facts include Gladys’s prior history of falls and her daughter’s concern leading to the welfare check request made around 6:30 p.m. on March 15, 2007. Troopers Valcourt and LaBombard responded to a welfare check for Gladys, who had previously fallen. After a brief conversation with Lorraine, they incorrectly searched the wrong house based on a mailbox they saw, rather than following Lorraine's instructions. After searching for about twenty minutes without finding Gladys, Trooper Valcourt contacted dispatch and requested the hospitals check for her. The next morning, Gladys was found on her porch after having fallen returning to her home, and she later died from hypothermia. The plaintiff sued the State of Vermont and the troopers for negligence, alleging that their failure to search the correct house constituted gross negligence and infringed on Gladys's constitutional rights. The plaintiff argued that the troopers breached a duty of care as outlined in the Restatement (Second) of Torts, allowing for a claim under the Vermont Tort Claims Act (VTCA). The defendants sought summary judgment, which the trial court granted, dismissing all claims. The court concluded that the plaintiff did not establish an applicable duty of care, referencing Kane v. Lamothe and rejecting claims under both the good Samaritan statute and common law negligence. Because no duty was found, gross negligence could not be established. The court also dismissed the Civil Rights Act claim, stating the plaintiff needed to demonstrate conduct beyond gross negligence. Since the case was dismissed, the court did not address the defendants' claims of qualified immunity or discretionary function under the VTCA. An appeal followed. The legal document addresses key issues regarding the State's duty of care during a welfare check and the applicability of sovereign immunity in a tort suit. It examines whether the trial court correctly dismissed the plaintiff’s gross negligence claim against Troopers Valcourt and LaBombard. The court found that the trial court did not adequately consider the common law duty of care under the Restatement (Second) of Torts § 324A, which led to a failure in addressing sovereign immunity under provisions 5601(a) and 5601(e). Consequently, the court reversed the summary judgment regarding the plaintiff's negligence claim against the State. Additionally, the court held that summary judgment on the gross negligence claim against the troopers was inappropriate, stating that qualified immunity does not shield them from liability. The court reviewed the summary judgment de novo, emphasizing that it is appropriate only when there are no genuine issues of material fact favoring the nonmoving party. The threshold question is whether the troopers owed a duty of care to Gladys Kennery during the welfare check. The plaintiff successfully argued that the troopers had a common law duty of care, as outlined in § 324A, which holds that one who undertakes services for another is liable for harm caused by a lack of reasonable care if it increases the risk of harm or leads to reliance by a third party. The document references Vermont case law, including Derosia v. Liberty Mut. Ins. Co., which adopted § 324A, establishing that a party may be liable if they fail to perform necessary inspections and induce reliance, and illustrates that § 324A has been applied in other cases with varying outcomes related to the existence of an undertaking or reliance. The Restatement (Second) of Torts 324A establishes that liability for negligence arises when there is an undertaking to render services for the protection of a third party, requiring either an increase in risk of harm (324A(a)) or harm due to reliance on the undertaking (324A(c)). The court found that the Vermont Department of Public Safety (VDPS) and the troopers had explicitly undertaken to perform a welfare check, fulfilling the initial duty requirement under 324A by not only promising to conduct the check but also taking concrete actions to do so and following up with Lorraine Kennery. The plaintiff alleges negligence by asserting that Lorraine provided specific instructions that indicated the troopers were searching the wrong house, which they disregarded despite having prior knowledge of relevant details. If it is proven that the troopers ignored these instructions, a reasonable jury could determine that they failed to exercise due care during the welfare check. Should the jury find negligence, they must consider if this failure increased the risk of harm (324A(a)) or if Lorraine's reliance on the troopers’ report led to harm (324A(c)). A reasonable jury could conclude that the troopers’ lack of due care may have delayed finding Gladys, potentially worsening her hypothermia. Lorraine's reliance on the troopers’ report led her to focus on other possibilities for her mother’s whereabouts instead of checking herself, which could have mitigated the situation. Given these genuine issues of material fact, the court determined that summary judgment was not appropriate. The excerpt outlines the legal principles establishing a duty of care in cases where public authorities undertake certain services, drawing parallels with two significant cases. In *Indian Towing Co. v. United States*, the U.S. Supreme Court held that the Coast Guard, although not obligated to operate lighthouses, assumed a duty of care once it took on the responsibility to maintain them. The Court emphasized that the agency must ensure the lighthouses are functional and alert the public if they are not, making them liable for damages under the Tort Claims Act if they fail in this duty. Similarly, in *Wallace v. Dean*, the Florida Supreme Court found a common law duty of care concerning sheriff's deputies who conducted a welfare check. The deputies, by assuring the neighbor that the mother was simply sleeping and refusing further assistance, increased the risk of harm to her. This conduct fulfilled the undertaker’s doctrine, as it led the neighbor to refrain from seeking additional help, placing the mother in a vulnerable situation. The analysis in both cases underscores the legal expectation that authorities must act with reasonable care once they engage in protective actions. The Court in Wallace referenced the Florida District Court of Appeals decision in Hartley v. Floyd, which involved a wife's request to the sheriff's office for assistance when her husband failed to return from a fishing trip. A deputy assured her that the boat access would be checked and the Coast Guard notified, but these statements were false and resulted in a five-hour delay in rescue efforts, ultimately leading to the husband's drowning. The court established that while the deputy's initial decision to comply with the wife's request was discretionary and not liable if refused, once he agreed to check and notify the Coast Guard, he had a duty to act with reasonable care. This negligent failure could hold the sheriff liable. The summary judgment found that the plaintiff demonstrated sufficient evidence of a duty of care and breach. The next step was to determine if the State had waived its sovereign immunity under the Vermont Tort Claims Act (VTCA). According to 12 V.S.A. § 5602, a plaintiff can only sue the State for actions of its employees performed within the scope of employment, with claims against the employees limited to gross negligence or willful misconduct. The VTCA states that Vermont is liable for injuries caused by state employees in the same manner as a private individual. The plaintiff's claim, based on a common law duty of care, applies equally to public employees as it would to private individuals, thus allowing the claim against the State under similar circumstances. The State contends that the plaintiff cannot claim against it under the Vermont Tort Claims Act (VTCA) without satisfying a four-part test established in Denis Bail Bonds, Inc. v. State. This test assesses whether a governmental body has a special duty of care towards specific individuals, rather than the public at large. The State argues that the first prong of this test, which requires a statute or ordinance mandating protective acts for a particular class of persons, is unmet due to the absence of relevant statutes in this case. The first prong is crucial because previous claims under this framework involved duties arising from governmental obligations, while this case uniquely asserts a common law duty independent of the government’s employment of the tortfeasor. The significance of the source of duty is highlighted by parallels to the Federal Tort Claims Act (FTCA), which waives sovereign immunity for recognized common law torts, thereby preventing the government from facing unfamiliar liabilities. The State’s argument implies that liability only exists if the tortfeasor was fulfilling a statutory role aimed at protecting specific individuals. However, the text states that state employees can commit common law torts unrelated to their official duties. For instance, a state employee's negligent driving during personal errands could lead to liability under the waiver of sovereign immunity. In this case, the common law duty of care pertains to the specific obligations assumed by the Vermont Department for Children and Families regarding welfare check beneficiaries. The absence of a statute does not negate the existence of this duty, and the common law duty of care sufficiently satisfies the requirements of the VTCA. The State argues that the plaintiff has not established a private analog for the VDPS welfare check, which is necessary to demonstrate a duty of care under the waiver language in 12 V.S.A. 5601. The requirement for a private analog, previously discussed in Denis Bail Bonds, is meant to show that the tortfeasor's duty arose under similar circumstances as that of a private individual. However, since the duty of care in this case is based on common law and is the same for both private individuals and public employees, the requirement does not apply. The court finds that the plaintiff has indeed raised a duty of care covered by the waiver of sovereign immunity. The State claims that the discretionary function exception in 12 V.S.A. 5601(e)(1) applies, which excludes the waiver from claims based on the exercise of discretionary functions by state agencies or employees. The purpose of this exception is to prevent courts from intervening in policy decisions through tort law. The State contends that the troopers made discretionary decisions during the welfare check. To assess whether the discretionary function exception bars a claim, the court applies a two-part test from United States v. Gaubert. First, the court determines if a statute or policy mandates certain actions or if the performance of a duty involves judgment or choice. If the latter is true, the court then evaluates whether that judgment is the type meant to be protected by the exception, which is intended for actions based on public policy considerations. The court emphasizes a case-by-case analysis regarding the discretionary nature of actions, noting that even ministerial acts can involve discretion. It highlights that the plaintiff must provide sufficient facts in a motion for summary judgment to support a finding that the act in question is not protected by the discretionary function exception. The State argues that the act of investigation, requiring substantial judgment, is inherently discretionary, involving many factors such as resource allocation, public safety, and rights of suspects. However, the central issue is whether this discretion is informed by public policy considerations. The Supreme Court's decision in Gaubert indicates that not all discretionary acts fall under the discretionary function exception if they are not tied to regulatory objectives. For instance, if an official negligently causes an accident while driving for official duties, that act would not be protected by the exception since it lacks a public policy basis. The Vermont Department of Public Safety (VDPS) is protected under the discretionary function exception regarding decisions to conduct welfare checks, as officers must prioritize their responses based on on-duty demands. In this case, troopers responded to a welfare check request four hours later. If the claim were about the delay, the State would still be protected, as resource allocation decisions are also covered by the exception. However, this case does not involve competing policy assessments. The discretion exercised by officers in determining which house to search does not reflect a public policy analysis, and therefore, those actions do not qualify for the discretionary function exemption. The analysis is supported by the Carter v. United States case, where federal agents mistakenly relied on incorrect address verification, illustrating that negligent acts without policy considerations are not protected under the discretionary function exception. In a suit for damages under the Federal Tort Claims Act (FTCA), the court determined that the plaintiffs' claims were not barred by the discretionary function exception. While the decision to provide address verification services and the methods used were protected, the error stemmed from a single worker's careless transcription of research notes, which lacked policy implications. The court reasoned that if the discretionary function exception were broadly applied, it would undermine the waiver of sovereign immunity, as most actions involve some discretion. The court compared the alleged negligence to a previous case, Carter, asserting that if the exception applied, it would severely limit potential liability under the Vermont Tort Claims Act (VTCA). With the main liability claim falling under the VTCA, the court addressed the direct claims against Troopers Valcourt and LaBombard, who could be held personally liable for gross negligence or willful misconduct. Gross negligence is defined as a failure to exercise even slight care and is typically a factual question for the jury. The court concluded that reasonable minds could differ regarding the troopers' conduct, as they allegedly made multiple judgment errors in a situation requiring careful attention. The State contended that the troopers were protected by qualified immunity, which applies to government employees acting within the scope of their authority and in good faith. However, the court found that it could not categorize the troopers' actions as discretionary, which is a critical element for qualified immunity. Discretionary actions are defined as those exempt from liability under the Vermont Tort Claims Act (VTCA) due to the discretionary function exception. Qualified immunity protects against liability for discretionary activities only when public policy considerations are involved. The State is not shielded from negligence claims under the VTCA's discretionary function exception, and similarly, individual troopers are not protected from gross negligence claims by qualified immunity. The court reversed the trial court's decision and remanded the case for further proceedings, not addressing additional arguments from the plaintiff. Justice Toor concurred in part and dissented in part, agreeing with the applicability of the Restatement (Second) of Torts, asserting that the discretionary function doctrine does not apply to this case, and supporting remand for trial against the State. However, Toor disagreed that gross negligence claims could proceed against the individual troopers, arguing that the distinction between ordinary and gross negligence is typically for the jury but is clear in this case. The standard for gross negligence requires a significantly higher degree of culpability than ordinary negligence, defined as a failure to exercise even slight care or a blatant disregard for legal duties. The court noted that trial courts can dismiss gross negligence claims when only ordinary negligence is established, citing examples like momentary inattention or falling asleep while driving, which do not meet the threshold for gross negligence. The court has upheld dismissals in cases of gross negligence where the actions did not exceed ordinary negligence. The Court upheld the trial court's decision, ruling that the trooper's actions in responding to a domestic violence report did not constitute gross negligence under the law. The trooper found a bruised victim, interviewed her near her boyfriend, and chose not to arrest him, which the Court deemed a failure of investigation rather than a complete lack of care or duty. The Court cited that the troopers demonstrated at least a slight degree of care by investigating the vicinity of the reported incident. It distinguished between simple incompetence and the gross negligence standard, emphasizing that merely making questionable decisions does not equate to a failure of care. The Court indicated that, to demonstrate gross negligence, the facts would need to show extreme circumstances, such as an outright failure to respond to the scene. Therefore, the Court affirmed the judgment for the defendants, including individual troopers, on all claims. Additionally, it noted a lack of contest regarding the dismissal of a Civil Rights Act claim, acknowledged the State's arguments concerning discretionary function and qualified immunity, and clarified that the case differs from precedent in Kane v. Lamothe due to the nature of the discretion exercised.