Tina Stocker v. State of VermontTina Stocker v. State of Vermont
NOTICE: This opinion is subject to motions for reargument under
On Appeal from Superior Court, Windsor Unit, Civil Division
Robert P. Gerety, Jr., J.
Sharon J. Gentry of Costello, Valente & Gentry, P.C., Brattleboro, for Plaintiffs-Appellants.
Thomas J. Donovan, Jr., Attorney General, and David Groff, Assistant Attorney General, Montpelier, for Defendant-Appellee State.
PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen,1 JJ.
¶
¶ 2. Plaintiffs are W.H. and B.H., who were abused as children, and their grandparents. They brought this tort action for damages in 2014, arguing that DCF failed to accept or respond to
dozens of reports of physical and sexual abuse of the children between 2008 and 2012. Among other things, plaintiffs made claims of negligence based on DCF‘s failure to perform its statutory obligations and negligent undertaking.
¶ 3. The State moved for summary judgment on all counts, arguing in part that the State did not breach any duty owed to plaintiffs, that the State was entitled to sovereign immunity because its actions were discretionary and grounded in public policy, and that plaintiffs could not prove causation. In June 2019, the trial court denied DCF‘s motion for summary judgment, and the case proceeded to trial.
¶ 4. The trial court held a two-week jury trial in January 2020. The final day of trial took place on a Friday during a snowstorm that resulted in the closure of all Vermont courts. After the close of the evidence, the trial court granted the State‘s motion for judgment as a matter of law on the record. Specifically, the court ruled that even if the jury accepted all plaintiffs’ evidence as true and made all reasonable inferences in favor of plaintiff, “the jury could not find the presence of proximate causation.” It determined that the jury would have to speculate as to “what actions [DCF] would have taken had they acted on reports of maltreatment of the children that were made and not acted upon” as well as “what it is that would have happened had DCF received that report and acted on it.” Further, the court said that “the finding of proximate causation would depend upon a determination by the jury as to what [DCF] would have done when acting in its discretion on matters that do implicate policy.” The court concluded that “in order to find proximate cause, the jury would inevitably be forced to assess whether or not DCF exercised discretionary acts correctly or not correctly in matters involving assessments about the policy of the State of Vermont regarding child welfare,” and thus there was not a showing of proximate cause.
¶ 5. The court subsequently issued an order to fully articulate the basis for its decision. First, it noted that the State was immune from liability for carelessness or negligence in carrying out discretionary functions. Second, it recognized that the Legislature had expressly provided that
neither
Only where DCF‘s conduct involves non-discretionary activity not involving policy considerations, and only where DCF‘s alleged negligent conduct was not taken pursuant to its authority and obligations set forth at
33 V.S.A. § 4915a and§ 4915b is it permissible under the law for an injured child to seek damages from DCF for injuries suffered at the hands of an abusive parent or caregiver.
Plaintiffs’ only viable legal theory, the court concluded, was that DCF owed plaintiffs a duty to “receive, record, and evaluate reports of abuse under
¶ 6. The court reiterated that in order to find proximate cause, “the jury would necessarily be compelled to engage in speculation about how DCF would have exercised its discretion in response to the reports and what action, if any, DCF would have taken under the guidelines of
¶ 7. As to plaintiffs’ negligent-undertaking theory, the court concluded that the evidence could not support a finding that DCF “undertook to a third person that it would take actions different from, and in addition to, actions within its authority to assess, investigate, and take steps to protect children from harm under the applicable Vermont statutes” or that plaintiffs relied on such an undertaking.
¶ 8. On appeal, plaintiffs argue that the trial court erred in concluding that a reasonable jury could not find DCF breached an actionable duty to protect the children and that a reasonable jury could not find DCF‘s actions were the proximate cause of the children‘s injuries. In particular, plaintiffs argue that DCF is liable for negligence and negligent undertaking based on their failures to record, respond, and investigate allegations of abuse. They also argue that their claims are not
barred by the discretionary function exception, and that the trial court improperly considered factors other than the law and evidence in granting judgment as a matter of law.
¶ 9. The court may enter judgment as a matter of law against a party “at any time before submission of the case to the jury,”
¶ 10. Plaintiffs advance two theories of liability against the State. First, DCF breached a common-law duty to plaintiffs by failing to meet its statutory obligations under
succeed on a theory of negligent undertaking. We consider each theory of liability in more detail below.
I. Common-Law Claim Arising from Statute
¶ 11. Plaintiffs’ negligence claim against DCF is based on DCF‘s alleged breach of a duty of care set forth in statute. Essentially, plaintiffs argue that DCF is liable to them for damages arising from DCF‘s violating its statutory obligations under
¶ 12. In analyzing plaintiffs’ claims based on DCF‘s alleged failure to satisfy its statutory duty, we draw on three related but distinct considerations: (A) the extent to which DCF may be liable to plaintiffs for its failure to meet its statutory obligations, (B) the limitation on the State‘s waiver of sovereign immunity for certain discretionary acts, and (C) the requirement that plaintiffs prove a causal relationship between the State‘s alleged breach of its statutory duties and their injury. As set forth more fully below, we agree with the trial court that DCF‘s potential liability for damages under this theory is limited to injury resulting from its violations of
A. The Scope of DCF‘s Potential Liability for Breaching Its Statutory Duties
¶ 13. Plaintiff‘s statute-based claim rests on a limited exception to the general common-law rule that for purposes of tort liability, a person has no duty to control the conduct of a third person to prevent harm to another. We have long recognized an exception for some duties created by statute, most notably in the case of Sabia and its progeny. See id. Because the common-law duty of care arises from statute, the scope of an injured party‘s claim for damages arising from a breach of the duty is likewise shaped by the terms of the statute. Applying these principles to the record in this case, we agree with the trial court that plaintiffs’ potential common-law claim for damages arising from DCF‘s failure to meet its statutory obligations is limited to DCF‘s obligations under
¶ 15. One exception to this general rule is that in some cases courts may recognize a private right of action for damages based on violation of a statutory duty. We have noted that the Restatement (Second) of Torts § 874A provides a framework for determining whether a private right of action for damages is available to remedy the violation of a statute that does not expressly include a civil remedy. See Montague, 2019 VT 16, ¶ 23. The Restatement (Third) recognizes that § 874A of the Second Restatement was primarily directed at private actions for damages arising from the violation of statutes proscribing misfeasance, rather than the violation of statutes imposing affirmative duties, and more squarely recognizes this principle in the context of affirmative duties to protect others from third parties. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 38 (“When a statute requires an actor to act for the protection of another, the court may rely on the statute to decide that an affirmative duty exists and to determine the scope of the duty.“); id. cmt. a (recognizing that Restatement (Second) § 874A did not squarely address situations in which a statute creates an affirmative obligation to act).3
¶ 16. This Court has recognized just such a private right of action against the State arising from statutes requiring DCF to take steps to protect neglected and
Sabia and its progeny. In Sabia, the plaintiffs sued DCF (then called the Department of Social and Rehabilitation Services (SRS)) for allegedly breaching its statutory duty to protect them from further abuse by failing “to take any steps to remove [the plaintiffs] from the home of [the alleged abuser], or to have [the alleged abuser] removed from the home, and/or to formulate any plan to ensure [the plaintiffs‘] safety.” 164 Vt. at 297, 669 A.2d at 1190-91 (quotation marks omitted). Reviewing our case law, we explained that to determine whether a governmental body has undertaken a duty of care towards specific persons that is above and beyond its duty to the general public—that is, whether a plaintiff may have an implied private right of action—this Court considers:
(1) whether a statute sets forth mandatory acts for the protection of a particular class of persons; (2) whether the government has knowledge that particular persons within that class are in danger; (3) whether those persons have relied on the government‘s representations or conduct; and (4) whether the government‘s failure to use due care would increase the risk of harm beyond what it was at the time the government acted or failed to act.
Id. at 299, 669 A.2d at 1191.4
¶ 17. In Sabia, we explained that
(amended 1996, 2000, 2007, 2008, and 2015)). Applying the above factors, we held that this mandatory language, along with the expressly stated purpose of the provisions to ” ‘protect children whose health and welfare may be adversely affected through abuse or neglect,’ ” ” ‘strengthen the family and make the home safe for children,’ ” and provide a safe and nurturing environment for children when necessary, id. at 299, 699 A.2d at 1192 (quoting
¶ 18. The terms of the statute at issue were critical to our assessment of the existence and scope of the State‘s potential tort liability to the Sabia plaintiffs. Our Sabia decision stands in stark contrast to our ruling in the case of Sorge v. State, 171 Vt. 171, 762 A.2d 816 (2000). In that case, we affirmed the trial court‘s dismissal of a suit against DCF for negligent supervision of a child in DCF custody who assaulted a delivery person. Id. at 180-81, 762 A.2d at 823. Although the primary issue in that case was whether the State had a duty to the delivery person based on its “special relationship” with the child, we noted that the relevant statutory provisions did not create any duty on the part of DCF to protect the class of persons to which the delivery person belonged from the type of harm the delivery person suffered. Id. at 175, 762 A.2d at 819. Thus, the existence and scope of a duty of care arising from a statute, as opposed to some other common-law bases for recognizing a tort-law duty of reasonable care, turns on the specific terms of the statute at issue.
¶ 19. As plaintiffs note, we concluded in Sabia that
course of action. Rather than requiring DCF to investigate each report of abuse, the statute requires that DCF first determine whether a report meets the definition of abuse or neglect.
¶ 20. Applying the above legal principles to the statute as it currently exists, we conclude that any implied right of action against DCF based in this statutory scheme is limited to violations of mandatory duties pursuant to
insofar as the Legislature has expressly indicated that
B. Sovereign Immunity and the Discretionary Function Exception
¶ 21. The second consideration that substantially narrows the scope of plaintiffs’ claims for damages is sovereign immunity. Because claims based on the performance of or failure to perform discretionary duties are not exempt from the State‘s waiver of sovereign immunity, plaintiffs cannot recover damages for injuries resulting from the negligent performance by state actors of discretionary functions. Applying this principle, we conclude that plaintiffs’ only viable claim against the State is that DCF failed to promptly determine whether a number of reports of
alleged child abuse or neglect were valid as required by
¶ 22. The State can only be held liable for damages when it has expressly waived sovereign immunity. Sutton v. Vt. Reg‘l Ctr., 2019 VT 71A, ¶ 35, _Vt._, 238 A.3d 608. Under the Vermont Tort Claims Act (VTCA), the State has waived immunity with respect to suits for injuries to persons “caused by the negligent or wrongful act or omission of an employee of the State while acting within the scope of employment, under the same circumstances, in the same manner, and to the same extent as a private person would be liable to the claimant.”
¶ 23. There are a number of exceptions to the VTCA, including that the State does not waive immunity for claims “based upon the exercise or performance or failure to exercise or perform a discretionary function or duty . . . whether or not the discretion involved is abused.”
¶ 24. We apply a two-part test to determine whether a plaintiff‘s claim is barred by the discretionary function exception to tort liability. The first prong requires us to determine whether the challenged act or omission involves “an element of judgment or choice.” Earle v. State, 2006 VT 92, ¶ 23, 180 Vt. 284, 910 A.2d 841 (quotation omitted). “If a statute or regulation or policy specifically prescribes a course of action for an employee to follow, then the discretion requirement is not met.” Ingerson v. Pallito, 2019 VT 40, ¶ 13, 210 Vt. 341, 214 A.3d 824 (quotation omitted). We have explained that acts furthering policy decisions fall within the discretionary function exception “only if there is a range of discretion to exercise in deciding how to carry out that
decision.” Sutton, 2019 VT 71A, ¶ 41 (quotation omitted). “While the discretionary function exception shields the State from liability for administrative and policymaking decisions, it will not excuse the State from liability for failure to act when required or for failure to use reasonable care when executing ministerial tasks in furtherance of a discretionary undertaking.” Id. (quotation omitted) (alteration omitted).
¶ 25. If the act is “discretionary in nature,” the second prong of the test requires the court to determine “whether that judgment involved considerations of public policy which the discretionary function exception was designed to protect.” Estate of Gage v. State, 2005 VT 78, ¶ 5, 178 Vt. 212, 882 A.2d 1157 (quotation omitted). “The purpose of the discretionary function exception is to assure that the courts do not invade the province of coordinate branches of government by passing judgment on legislative or administrative policy decisions through tort law.” Ingerson, 2019 VT 40, ¶ 11 (quotation omitted). It is presumed that “when a government agent is authorized to exercise discretion,” their acts are “grounded in policy when exercising that discretion.” Estate of Gage, 2005 VT 78, ¶ 5. If the State‘s action involves negligence unrelated to policy objectives, then the second prong of the discretionary exception test is not satisfied. Ingerson, 2019 VT 40, ¶ 14; see also Kennery v. State, 2011 VT 121, ¶ 36, 191 Vt. 44, 38 A.3d 35 (holding that troopers’ welfare check on the wrong house did not fall under discretionary function exception because the “discretionary activity at issue was to apply the information given the officers to search the right house” and there was “no public policy analysis in [that] activity“). While the State must act with due care with regard to ministerial acts implementing policy decisions, the discretionary function exception shields discretionary acts that further a protected policy decision when there is a “range of discretion to exercise in deciding how to carry out the activity.” Ingerson, 2019 VT 40, ¶ 16 (alteration omitted) (quoting United States v. Gaubert, 499 U.S. 315, 325 (1991)). The exception applies to such acts “whether or not the discretion involved is abused.”
¶ 27. Although taking the step of making an initial determination of whether a report is valid is non-discretionary, the substantive determination of whether a report meets the definition of
¶ 28. The determination of whether to assess or investigate a valid allegation of abuse or neglect under
¶ 29. Section
¶ 30. Finally, although we have concluded that DCF‘s negligence in meeting its obligations under
decisions involved matters of public policy. See Earle, 2006 VT 92, ¶ 23. And, as we said in Earle, these investigations of allegations of abuse involve weighing competing governmental policies and are precisely the kind of discretionary functions the exception was designed to shield. Id.
¶ 31. Thus, the only claim implicating a non-discretionary act for which DCF can be held liable here is that DCF failed to record a number of complaints of abuse and make an initial determination about whether the reports were valid. The State does not dispute that it has waived immunity as to such claims; however, it argues that plaintiffs here cannot establish causation.
C. Causation
¶ 32. An essential element of plaintiffs’ claims is that DCF‘s breach of duty was a cause in fact and a proximate cause of the alleged injury. See Palmer v. Furlan, 2019 VT 42, ¶ 8, 210 Vt. 375, 215 A.3d 109. The former requires a showing that the harm plaintiffs suffered “would not have occurred ‘but-for’ the defendant‘s conduct such that the tortious conduct was a necessary condition for the occurrence of the plaintiff‘s harm.” Id. (quotation omitted). The latter requires a showing that defendant‘s conduct was “legally sufficient to result in liability in that the injurious consequences flowed from the defendant‘s conduct and were not interrupted by some intervening cause.” Ziniti v. New England Cent. R.R., 2019 VT 9, ¶ 15, 209 Vt. 433, 207 A.3d 463 (quotation omitted).
¶ 33. Plaintiffs allege that DCF failed to record and respond to over thirty reports of alleged abuse or neglect of W.H. and B.H. made by four different people. As discussed above, DCF has a statutory duty to make prompt determinations of whether any report of alleged abuse is valid; however, DCF can only be held liable if there is a causal connection between the failure to make such determinations and W.H. and B.H.‘s injuries. See Rivers v. State, 133 Vt. 11, 14, 328 A.2d 398, 400 (1974). Given DCF‘s extensive involvement with these children during the period in question, and given that the allegedly unrecorded and unresponded-to reports were mostly the same as the reports that DCF did record, analyze, and accept or decline to accept, we
conclude that the court did not err in determining that no reasonable jury could find proximate cause here.
¶ 34. Causation is ordinarily left to the jury to decide, but “it may be decided as a matter of law where the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way.” Collins v. Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208 (quotation omitted). Generally, we recognize that a jury could make permissible, non-speculative inferences to conclude that DCF‘s failure to act on a report is the proximate cause of a child‘s injuries. See Sabia, 164 Vt. at 306-07, 669 A.2d at 1196; see also District of Columbia v. Harris, 770 A.2d 82, 93 (D.C. 2001) (holding that jury could reasonably infer detective‘s failure to conduct an adequate investigation based on a single report was proximate cause of further abuse and injury).
¶ 35. Plaintiffs urge that the circumstances here are “almost identical” to those in Sabia, where we concluded that a jury could find that DCF‘s failure to do anything in response to reports of alleged abuse was the proximate cause of the continued abuse of the plaintiffs. 164 Vt. at 306-07, 669 A.2d at 1196. However, this case is distinct from Sabia in that the allegations there were that DCF failed to respond to any reports of abuse or take any action. In this case, between May 2008 and May 2012, when the children were taken into DCF custody, DCF had recorded and conducted intakes for at least twenty-seven reports related to abuse of W.H. and B.H., and conducted at least seven investigations and four assessments. Each child participated in multiple interviews, beginning in May 2008, and repeating in February and May (W.H. only) 2009; and May, September, October, and November (B.H. only) 2010. Throughout this period, DCF opened multiple family cases in response to allegations of abuse or neglect of W.H. and B.H. And, significantly, the allegations from the unrecorded reports of abuse were reflected in the recorded reports.
¶ 36. In particular, plaintiff grandparents alleged that they made a number of reports of physical abuse of W.H. and B.H. that DCF did not record or respond to. Specifically, they reported
that W.H. and B.H. were being hit with backscratchers, shoes, and other objects by their father and stepmother, that they were being improperly fed, and that they were living in unsanitary conditions. Grandparents testified that they made these reports to the Springfield DCF office, the Central Intake Office, to police, to social workers, and to school personnel. These allegations were, however, reflected in other reports that DCF did record and respond to. There were at least five accepted reports that DCF investigated based on a risk of physical abuse to W.H. or B.H.—two against mother in 2008 and 2009, two against stepmother in 2010, and one unspecified allegation from grandfather that W.H. came home with bruises. During the 2008 investigation, W.H. reported in an interview that his mother hit both him and B.H., and B.H reported that their father hit them with a backscratcher, but the report was ultimately unsubstantiated. And during the 2010 investigation of stepmother, father admitted that stepmother hit B.H., but the report was unsubstantiated. In the 2009 and 2010 investigations, the children were interviewed and did not disclose any physical abuse.
¶ 37. One woman who lived with father, stepmother, and W.H. and B.H. also testified that she made between eight and ten calls and visits to DCF to report alleged abuse or neglect while she lived there from late 2010 to early 2011 that DCF never recorded or responded to. Specifically, she testified that she reported an incident where W.H. was hit with a hairbrush that left a mark, that father and stepmother were not feeding W.H. and B.H. properly, that she believed stepmother might be taking nude photos of B.H., and that B.H. and W.H. were exposed to pornography in the home. The housemate‘s partner similarly testified that she made five to ten reports
reports, and as noted above, were investigated. As to the report of possible sexual abuse, after housemate heard on the news that father and stepmother had been charged, she contacted the police, who contacted DCF. DCF accepted and investigated these allegations in 2012 and found no evidence that B.H. was sexually abused by father or stepmother. Given this record, a jury would have no non-speculative basis for inferring that if DCF had recorded and acted on the alleged reports noted above—reports that overlapped extensively with the reports it did record and act on—plaintiffs would not have suffered the same injuries.
¶ 38. We acknowledge that, viewing the record in the light most favorable to plaintiffs, DCF failed to fulfill its statutory duty to respond to reports of alleged abuse. However, given the nature of the reports that DCF is alleged to have failed to respond to, and the nature of the reports that DCF did respond to during the same time period, we conclude that a jury would be forced to engage in impermissible speculation about how DCF would have responded to these reports to conclude that they were the proximate cause of W.H. and B.H.‘s injuries. Thus, the trial court did not err in granting judgment as a matter of law on plaintiff‘s common-law negligence claim arising from DCF‘s statutory duty.
II. Negligent Undertaking
¶ 39. Plaintiffs’ alternate theory of liability is that DCF was negligent in the conduct of its undertaking to protect B.H. and W.H., as defined in §§ 323 and 324A of the Restatement (Second) of Torts. They argue that DCF undertook to protect W.H. and B.H. from abuse and that they were negligent in carrying out that undertaking by failing to adhere to statutory requirements and DCF policies. The State contends that DCF‘s statutory obligations cannot constitute an undertaking and that this theory cannot provide a separate means to sue the State where DCF‘s duties exist and are circumscribed by statute.7
¶ 40. We do not address whether a theory of negligent undertaking could be based on DCF‘s statutory and regulatory obligations because we conclude that plaintiffs’
¶ 41. Section 323 of the Restatement (Second) of Torts provides:
One who undertakes, gratuitously or for consideration, to render services to another which [the actor] should recognize as necessary for the protection of the other‘s person or things, is subject to liability to the other for physical harm resulting from [the actor‘s] failure to exercise reasonable care to perform [the] undertaking, if
(a) [the] failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other‘s reliance upon the undertaking.
Accord Sabia, 164 Vt. at 302-03, 669 A.2d at 1194. Section 324A embodies the same principle but focuses on an undertaking to another to render services necessary for the protection of a third person or their things. An actor who undertakes to render such services can be subject to liability to the third person for physical harm resulting from the actor‘s failure to exercise due care if the failure increases the risk of the harm, the actor has undertaken to perform a duty owed by another to the third person, or the harm results from the reliance of the other, or the third party, upon the undertaking. Restatement (Second) of Torts § 324A.
State‘s undertaking—plaintiffs’ alternate theories may in fact be close cousins. The considerations that inform the question of whether the State‘s mandatory statutory obligations constitute a duty of care for tort-law purposes in our case law are drawn directly from the factors defining a common-law duty of care arising from an undertaking as defined in the Restatement. We need not determine whether Sabia in fact articulates the test applicable to negligent-undertaking claims based on statutes imposing mandatory affirmative obligations on the State to protect others, or what the relationship is between the negligent-undertaking theory and the common-law negligence theory tied to the requirements of the statute. Because plaintiffs pled these as alternative theories, we address them separately.
¶ 42. Plaintiffs fail to show that DCF‘s alleged negligence increased the risk of harm to W.H. and B.H. in this case. We have explained that to establish increased risk of harm under § 324A(a), plaintiffs must identify “sins of commission rather than omission,” or conduct that “directly increases risk of harm.” Murphy v. Sentry Ins., 2014 VT 25, ¶ 27, 196 Vt. 92, 95 A.3d 985 (quotations omitted). The standard of comparison for § 324A(a) is not the risk of harm created if defendant exercised reasonable care, but the risk of harm that would be present if defendant had never undertaken to render services. Kuligoski v. Brattleboro Retreat, 2016 VT 54A, ¶ 80, 203 Vt. 328, 156 A.3d 436. Neither mere failure to discover a danger nor “failure to advise” that permits continuation of an existing risk will subject a defendant to liability. Murphy, 2014 VT 25, ¶ 27.
¶ 43. In this case, plaintiffs may be able to show that, had DCF acted with reasonable care, they would not have suffered as much, but they have not presented evidence that DCF‘s undertaking to protect them put them at greater risk than if DCF had taken no steps at all. Our analysis in Sabia does not persuade us otherwise. In that case, we suggested that DCF‘s failure to act increased the risk of harm to the plaintiffs by allowing the harm to continue unabated, which may have sent a message to the perpetrator that he could act with impunity. 164 Vt. at 300, 669 A.2d at 1192. We have since made it clear that allowing a risk of harm to continue unabated, without affirmatively making it worse, is insufficient to support an undertaking under this prong. See Kuligoski, 2016 VT 54A, ¶ 80 & n.14 (noting that the Restatement (Third) of Torts § 43 more explicitly recognizes this point). Moreover, Sabia came to us on an appeal from a trial court‘s award of judgment on the pleadings to the State; our suggestion that DCF‘s inaction may have emboldened the abuser reflects the indulgence due to a plaintiff in the context of a motion for judgment on the pleadings. Powers v. Office of Child Support, 173 Vt. 390, 395, 795 A.2d 1259, 1263 (2002) (“A motion to dismiss for failure to state a claim upon which relief can be granted should not be granted unless it is beyond doubt that there exist no facts or circumstances that would entitle [the plaintiff] to relief.“).
¶ 44. Likewise, plaintiffs have not demonstrated that W.H. and B.H. suffered injury as a result of their or a third person‘s reliance on DCF. We considered this “reliance” prong in the case of Kennery v. State, 2011 VT 121, ¶¶ 14-16, 191 Vt. 44, 38 A.3d 35. In Kennery, we held that the State could be liable for negligent undertaking under a § 324A theory where a daughter requested that state troopers conduct a welfare check on her mother‘s home, the troopers went to the wrong address, and the mother was found outside the next day by the postman and subsequently died of hypothermia. Id. ¶ 16. We concluded that a jury could find that the mother suffered injury due to the daughter‘s reliance on the troopers conducting a competent welfare check. Id. The daughter alleged that this reliance prevented her from personally checking on her mother and she instead shifted her attention to checking local hospitals. “Had [the daughter] not relied on the troopers’ report and personally checked her mother‘s home, she might have found [her mother] much earlier than the postman, thus possibly limiting or preventing [the mother‘s] hypothermia.” Id. Likewise, in Sabia, in the context of describing a common-law claim pursuant to the principles in § 323 as a private analog to the case against DCF, we noted that the plaintiffs alleged that they relied on the assurances of a DCF employee who promised that something would be done, which may have prevented them from seeking help from other sources. 164 Vt. at 303-04, 669 A.2d at 1194.
¶ 45. In contrast, plaintiffs here offer no evidence of their reliance on DCF‘s alleged undertaking or that they were deterred from making reports or taking any alternative action based on their reliance. Cf. Langlois v. Town of Proctor, 2014 VT 130, ¶¶ 15-16, 198 Vt. 137, 113 A.3d 44 (holding that a town could be liable for negligent undertaking where plaintiff relied on town‘s promise to have water disconnected when she discontinued heat to a building and town failed to discontinue water, which resulted in pipes bursting and damage to the building). Plaintiffs W.H. and B.H. repeatedly denied abuse when interviewed about allegations that had been reported to DCF, and plaintiff grandparents continued making reports to DCF unabated; they testified that they did not know how DCF was responding to their reports or, at times, whether there were ongoing investigations. In addition, plaintiff grandparents also contacted the school and police
and continued engaging through multiple channels to try to protect W.H. and B.H. from abuse. Plaintiff grandparents offered no evidence that they held off on taking steps to protect W.H. and B.H. in reliance on any assurances from DCF. We do not suggest that in any case, continued reporting to DCF would preclude a finding of reliance, but that the particular facts in this case do not support a conclusion that W.H. and B.H. suffered injury as a result of any reliance on DCF.
¶ 46. Finally, plaintiffs fail to show that DCF undertook to perform a duty owed to W.H. and B.H. by a third party under § 324A(b). In their complaint, plaintiffs alleged that DCF assumed a duty owed by the parents to W.H. and B.H. However, they point to no facts or case law to support a conclusion that DCF, in conducting its statutory and regulatory obligations, assumes any duty that parents owe to their children. For these reasons,
Affirmed.
FOR THE COURT:
Associate Justice
¶ 47. REIBER, C.J., dissenting. I cannot join the majority‘s conclusion that this case warrants judgment as a matter of law. The evidence presented at trial and the posture of the case was such that the jury should have decided whether plaintiffs’ injuries were proximately caused by the Vermont Department for Children and Families’ (DCF) failure to respond to numerous reports of suspected abuse. On this basis, I respectfully dissent.
¶ 48. A court may grant judgment as a matter of law before the case is submitted to the jury for consideration if “there is no legally sufficient evidentiary basis for a reasonable jury to
find for [the nonmoving] party.”
¶ 49. The Vermont Constitution considers the right to a jury trial “sacred,” and for good reason.
¶ 50. In my view, plaintiffs’ evidence was sufficient for a reasonable jury to find that their injuries resulted from DCF‘s conduct such that the trial court should not have taken the decision out of the jury‘s hands as a matter of law. The jury heard extensive evidence from both sides during a two-week trial. Four witnesses testified that DCF failed to record and respond to
over thirty reports alleging abuse or neglect of plaintiffs. Plaintiffs’ expert, Dr.
Each report is an opportunity for the department to get more information about the family. Each report adds to the record that you have that‘s—potentially shows a pattern of behaviors on the part of the parents or a pattern of behaviors on the part of the children reacting to the situations they‘re in.
And one of the things that—that DCF is required to do in looking at whether this is abuse or neglect is to look not only at individual incidents, but also at patterns of behavior. And so . . . if you ignore [numerous reports] over the course of what was essentially a year or two . . . then patterns of behavior are probably there that you don‘t know anything about because you denied yourself the information that you needed . . . .
[T]he impact on the kids is that they miss an opportunity to get another layer of protection, to have another set of eyes look at the case and say, okay, now we see something going on.
Moreover, during the defense‘s case, a DCF worker testified regarding DCF‘s process for receiving reports of suspected abuse or neglect and reviewed the approximately twenty-seven recorded reports made about plaintiffs’ family and household. She explained that many of those reports were not accepted as valid allegations of abuse, but DCF nonetheless forwarded them to the case worker assigned to plaintiffs’ family.
¶ 51. On this record, a reasonable jury could conclude that by failing to record and respond to approximately thirty additional reports of suspected abuse, DCF lost the opportunity to make decisions about plaintiffs based on all available information. Had the case not been decided at the conclusion of the evidence, the jury could have concluded that DCF‘s inaction proximately caused plaintiffs’ prolonged abuse, as in Sabia. See 164 Vt. at 306, 669 A.2d at 1196. It is true that in Sabia, DCF failed to respond to any reports of alleged abuse, whereas here DCF responded to numerous reports and conducted several investigations and assessments. The majority relies on this distinction and reasons that because the unrecorded reports of abuse overlapped with the
reports of abuse to which DCF did respond and because DCF was already providing services to the family, a jury would have to speculate to conclude that plaintiffs would not have suffered the same injuries if DCF had recorded all reports. But this analysis overlooks the expert testimony that the cumulative effect of the reports demonstrated a pattern of behavior that warranted intervention. Viewed in the light most favorable to plaintiffs, the jury could have reasonably inferred without speculation that had DCF recorded and responded to the thirty additional reports, plaintiffs would not have suffered the same injuries.
¶ 52. Ultimately, two weeks of evidence was before the jury, including expert opinions for and against plaintiff‘s claims. These facts did not so clearly compel a conclusion to allow the court to decide the case on its own as a matter of law. On the evidence presented, this case should have turned on determinations of credibility and assessments of the weight of the evidence—matters squarely within the province of the jury. See Estate of George v. Vt. League of Cities & Towns, 2010 VT 1, ¶ 56, 187 Vt. 229, 993 A.2d 367 (Reiber, C.J., dissenting) (“[E]valuating an expert‘s credibility and the weight of the evidence
¶ 53. By taking the decision out of the hands of the jury as a matter of law at this stage of the proceeding, the trial court overtook the role of the jury. To be clear, a reasonable jury might have concluded either that DCF did not proximately cause plaintiffs’ injuries for the reasons set forth by the majority, or that it did so. But “unless the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and
circumstances one way,” this issue falls within the jury‘s purview. Roberts, 147 Vt. at 163, 514 A.2d at 696 (quotation omitted). I cannot conclude that this case presents such a situation, and I therefore respectfully dissent.
Chief Justice
Notes
Restatement (Second) of Torts § 286 (emphasis added). For the purpose of their “common law negligence” argument, plaintiffs have not offered an independent basis for DCF‘s duty apart from the statute itself. Although § 286 might be pertinent to determining the standard of conduct applicable in the face of a duty that exists independent of the statute, it does not describe the principle of law that allows a court to recognize a duty of care based in a statutory obligation.The court may adopt as the standard of conduct of a reasonable [person] the requirements of a [statute or regulation] whose purpose is found to be exclusively or in part:
(a) to protect a class of persons which includes the one whose interest is invaded, and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm which has resulted, and
(d) to protect that interest against the particular hazard from which the harm results.