Two opinions this Friday: one about workplace-safety violations and one about negligent unauthorized vaccine administration at school. We'll start with the workplace-safety case.
A now-former employee called in some violations at a job site. A Vermont Occupational Safety & Health Administration (VOSHA) inspector came to the job site, interviewed a supervisor, inspected the site (with permission), and then chalked up seven violations. Employer challenged the violations with the VOSHA review board, which knocked out one violation but upheld the remaining six. Employer then took the case to the civil division which knocked off one more violation but upheld the remaining five. Employer contended before both the board and the trial court that: (1) the employee's complaint ought not to have been treated as "formal" (warranting an inspection); (2) a required physical copy of the complaint wasn't provided; (3) it didn't consent to a warrantless inspection; and (4) the decision to inspect was arbitrary and invalid. It makes largely the same arguments on appeal. And that brings us to SCOV.
On appeal, SCOV reasons that a so-called "formal" complaint is not required to trigger a visit or inspection. Similarly, given COVID restrictions at the time of the visit, SCOV does not find the lack of a written complaint being provided fatal. Further, while the inspector was on-site, employer consented to the search. While a warrant is normally required for a search of a job site, if a supervisor consents, that obviates the need for a warrant. As to whether the inspection was arbitrary, SCOV again reasons that employer was free to not consent or revoke consent at any time, so that goes nowhere. There are some arguments on the merits of the violations, but SCOV points to the record and rejects employer's arguments that the violations were, well, not actual violations. In the end, SCOV affirms. Kingsbury Companies, LLC v. Comm. of Labor, 2024 VT 42.
Next, we have an unwanted COVID vaccine administered to a child at school. Parental consent was required but not given. In fact, dad told the assistant principal on the day of the clinic that they didn't want the kid vaccinated. The wrong name label and date of birth (a fellow student not in his class) was put on kiddo and even though kiddo said, "dad said no," the clinic workers distracted him with a stuffed animal, told him he was a "brave little boy," and gave him the shot. After this incident, parents pulled the boy from school. And parents the sued "various named and unnamed state and school defendants" under state law. We could list them all but we won't. The state defendants moved to dismiss; the school defendants answered and moved for judgment on the pleadings. Both defendant groups argued that they were immune from suit under the Federal Public Readiness and Emergency Preparedness Act (PREP Act) and that the complaint should be dismissed. The trial court agreed and granted both motions, though it granted plaintiffs leave to amend. Plaintiffs filed an amended complaint and added a Vermont Constitution claim. Unfortunately, this claim was still a "state law" claim preempted under the Act. So, the trial court again dismissed the complaint for lack of jurisdiction.
Parents appeal. On appeal, SCOV reasons "that the PREP Act immunizes every defendant in this case and this fact alone is enough to dismiss the case. Plaintiffs' arguments about preemption are misplaced, and therefore we need not decide today the extent of the PREP Act's preemptive effect. We conclude that when the federal PREP Act immunizes a defendant, the PREP Act bars all state-law claims against that defendant as a matter of law. We therefore affirm the dismissal because plaintiffs have failed to state a claim upon which relief can be granted and not for lack of subject matter jurisdiction." So, here, it's really the immunity that controls for SCOV. It's a slightly different approach with the same result. The exception to immunity here is for willful misconduct" resulting in "death or serious bodily injury" and there's no allegation of such injury here. I'm not sure I like the reasoning here. If my kid had the wrong information label put on him and got a shot—no matter what it was—I expressly told school officials I didn't want him to have, I'd expect a remedy. But I understand it. Those immunity provisions are broad.
This one gets affirmed on grounds that parents failed to state a claim on which relief can be granted. Politella v. Windham Southeast School Dist., 2024 VT 43.
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