Kennery v. State of
, 2011 VT 121. Vermont
Liability is a curious thing. In our society, we have long had the right to sue each other for the injuries that we inflict on one another. Despite, the propaganda, liability serves an important function. Each day that we leave our house, we move under an obligation to other people. We must behave in a careful, cautious, and reasonable manner. It is what stops ideas like this from becoming too widespread.
In other words, liability, or more properly, the threat of liability, is part of our social fabric. Knowing that we could be liable for our actions makes us more aware of them. It makes us better people—or at least easier to live with. We act responsibly, not because Big Brother is watching, but because we are responsible for our actions. If behave foolishly, then we will have to pay for our mistakes.
So ingrained is this policy that even the state and its employees are subject to the same concepts of liability. Well . . . sorta.
Unlike individuals, government has effectively limited its liability. This is due to a number of reasons. Traditionally, people did not sue the state. Phrases like “L’Etat c’est moi” tend to discourage plaintiffs and their claims. It is also difficult to justify suing the state when the state is made up of the taxpayers who will likely foot any bill. It is also difficult justify suing the state when it is performing any number of dirty jobs that the private sector is unwilling, unavailable, or unable to provide.
Yet, we recognize that there are times when the actions of the state or its individual employees are so grossly negligent as to justify liability and a right of recovery. Where the line gets drawn is, in part, the subject of today’s case.
The facts behind today’s case are tragic. The deceased’s daughter called the Vermont State Police to do a welfare check on her mother. Daughter lived in
and mom, who had a history of falling on the icy path in front of her house, had not returned home. The State Police sent two troopers to perform a welfare check three hours later. The troopers, seeing mom’s address on a mailbox, pulled in the wrong driveway and checked the wrong house. Not finding mom or anyone at home, the troopers filed a “be on the lookout notice” and called several area hospitals. When mom did not turn up, they filed a notice to the next shift to continue looking for mom. White Plains
The next morning a postal worker found mom at her house. She had indeed fallen on her steps and had managed to crawl to her back porch. Twelve days later, mom died of hypothermia.
Plaintiff filed the present action on behalf of mom’s estate. He sued the troopers involved, the State of
, and the Department of Public Safety. He alleged that the actions and failures of the troopers and the system amounted to negligence, gross negligence, and a violation of mom’s civil rights. Vermont
The trial court dismissed Plaintiff’s claims by ruling that a welfare check did not create a duty of care to mother. In the view of the Plaintiff, the ruling appeared to say that the police could perform welfare checks, but they owed no one a duty to do them well.
On appeal, the SCOV disagrees. It reverses and remands finding that a welfare check does create a duty of care and that the basic facts make out a basic case of both negligence and gross negligence that will require more discovery and a trial to establish.
How the SCOV gets there makes for the meat of its decision. The SCOV begins its analysis with the question of whether the troopers owed mom and her family a duty of care. The trial court found no such duty, but the SCOV does in the Restatement (Second) of Torts.
A quick note, the Restatement series published by the American Law Institute is a national project that started in the 1920s to codify all of the areas of law that traditionally do not have statutory guidelines. The original series included agency, contracts, judgments, torts, conflict of laws, restitutions, trusts, and property. The Restatements are organized like a categorical series of statutes and offer both straightforward rules as well as extensive notes reflecting the variations and subtleties within each “rule.” In the 90 years since the first Restatement, the ALI has issued second and third editions and have expanded into other areas, such as product liability and employment law.
Basically, the Restatement section cited by the SCOV states that a duty of care to a third person is created when someone undertakes a service for someone that is essential or necessary for the third person if the failure to properly complete the undertaking is likely to cause greater harm to the third person. In this case, daughter called the troopers who agreed to undertake a welfare check. By taking on this check, the troopers basically assured the daughter that they would look into the situation and take action if needed. This made daughter less likely to seek additional help or to come up to
The SCOV finds that there is evidence to support Plaintiff’s allegation that the troopers breached the duty of care. In this respect, the SCOV focuses in on all the details that should have alerted the troopers that they were checking out the wrong house on the wrong side of the street.
The SCOV realizes that it is breaking new ground here, and it carefully notes that other jurisdictions, including the federal government, have come to the same conclusion in similar circumstances.
The next big hurdle for the SCOV is the Vermont Tort Claims Act. As the sovereign, the State has limited what claims may stand against it. The VTCA makes the State liable for injuries or losses to person or property caused by the negligent actions of a state employee who is acting within the scope of employment and to the same extent that liability extends to a private party. This is an easy analysis. Most legal fights with the VTCA involve plaintiffs trying to stuff a governmental function (such as performing an arrest) into the same category as a private action. This can force both parties and the court into some convoluted and confusing positions. Here the question is can the State be sued for an employee’s negligence? Hint: the answer is yes. But it is yes because the source of the duty is found in the common law (the Restatement) and applies to private and public actors equally.
This brings us to the final issue under the VTCA, the so-called discretionary function exception. Under the VTCA, the State is still not liable if the action is essentially a judgment or policy call by the employee. Such actions are not intended to lead to liability because they are essential decisions that the State must make and because they inherently require employees to make tough decisions that may, in hindsight, appear differently. The question of whether an action is discretionary or ministerial usually requires some analysis.
The present case is no exception. The SCOV parses out the various facts and notes that the act of deciding to perform a welfare check and when to perform such a check are discretionary, and are therefore immune from liability. The discretionary function would protect the State from liability on such claims. But the act of performing a welfare check and applying the directions to get to the right site are not. That means that the Troopers’ failure to follow directions or the subtle cues as to the location of the mother’s house is actionable.
Thus, the State is potentially liable under the VTCA, and the action against it may proceed. It may also proceed against the Troopers because as a non-discretionary act, they are not entitled qualified immunity.
As a final point, the SCOV rules that the individual troopers are liable under a theory of gross negligence because the facts show that they may have missed multiple cues and directions before going to the wrong house in a situation that was literally life and death.
Case is reversed and remanded to the trial court where the State will have to defend itself anew.