Kennery v. State of Vermont, Valcourt, LaBombard and Other Members of the Dept. of Public Safety
38 A.3d 35
Vt.2011Background
- Kennery estate sues State, troopers, and VDPS after a welfare check on Gladys Kennery led to her death from hypothermia; officers searched the wrong house; Lorraine Kennery requested the welfare check and provided address and other details.
- Troopers initially searched the wrong residence, spoke with Lorraine, and after ~20 minutes updated Lorraine but did not locate Gladys.
- Gladys was found the next morning outside and died 12 days later from hypothermia; lawsuit asserted negligence, gross negligence, and civil-rights violations.
- Trial court granted summary judgment, holding no duty and dismissing all claims; this Court reverses, finds duty under Restatement §324A, rejects immunity defenses, and remands for trial.
- Key factual questions remain about whether the undertakings and deviations from care breached §324A and whether Walter Lorraine’s reliance and the welfare-check protocol caused injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a duty of care exists under Restatement §324A | Kennery shows undertakings to perform welfare check created duty | State concedes no private analog exists; argues no undertaking | Yes; §324A creates a duty based on undertaking and reliance |
| Whether VTCA waives sovereign immunity for this claim | Duty under §324A brings claim within VTCA waiver | Denis Bail Bonds four-part test controls; absence of statute precludes duty | Waiver applies; common-law duty satisfies §5601(a) despite absence of statute |
| Whether discretionary function exception bars the claim against the State | Discretionary function exception does not apply to welfare check decisions | VDPS decisions involve policy-based discretion | Discretionary function exception does not bar claims in this context |
| Whether Troopers Valcourt and LaBombard face gross-negligence liability | Conduct constitutes gross negligence due to multiple errors | Acts amount to ordinary negligence; qualified-immunity defense applicable | Gross-negligence questions for the jury; immunity does not bar liability |
Key Cases Cited
- Kane v. Lamothe, 182 Vt. 241 (2007 VT 91) (discretion and duty considerations in gross-negligence analysis)
- Denis Bail Bonds, Inc. v. State, 159 Vt. 481 (1993 VT) (four-part test for governmental duty; private analog considerations)
- Sabia v. State, 164 Vt. 293 (1995 VT) (recognizing private analog and duty concepts under VTCA)
- Indian Towing Co. v. United States, 350 U.S. 61 (1955) (undertaker’s duty when reliance is created)
- Derosia v. Liberty Mutual Insurance Co., 155 Vt. 178 (1990 VT) (adoption of §324A in Vermont)
- Wallace v. Dean, 3 So. 3d 1035 (Fla. 2009) (common-law duty under welfare/safety checks)
- Carter v. United States, 725 F. Supp. 2d 346 (2010 ED.N.Y.) (discretionary function exception limits in FTCA context)