Andrew v. State, 95-301

• Decision Date: 28 June 1996
• Docket Number: No. 95-301,95-301
• Citation: 165 Vt. 252,682 A.2d 1387
• Parties: , 17 O.S.H. Cas. (BNA) 1685, 1996 O.S.H.D. (CCH) P 31,075 Florin and Juanita ANDREW v. STATE of Vermont.
• Court: Vermont Supreme Court

Page 1387

682 A.2d 1387

165 Vt. 252, 17 O.S.H. Cas. (BNA) 1685,

1996 O.S.H.D. (CCH) P 31,075

Florin and Juanita ANDREW v. STATE of Vermont.

No. 95-301.

Supreme Court of Vermont.

June 28, 1996.

Jesse M. Corum IV of Gale, Corum & Stern, and Thomas W. Costello and Joel T. Faxon of Costello & Mabie, Brattleboro, for plaintiffs-appellants.

Jeffrey L. Amestoy, Attorney General, and Timothy B. Tomasi, Assistant Attorney General, Montpelier, for defendant-appellee.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ALLEN, Chief Justice.

In this appeal we consider whether the State is immune from a tort suit claiming damages for injuries resulting from an allegedly negligent inspection of a private workplace pursuant to the Vermont Occupational Safety and Health Act (VOSHA), 21 V.S.A. §§ 201-264. We conclude that the State is immune from the suit because plaintiffs, an injured employee and his wife, have failed to show that a private analog exists for the State's regulatory enforcement activities. Accordingly, we affirm the superior court's grant of summary judgment in favor of the State.

We view the facts as alleged by plaintiffs. See Peters v. Mindell, 159 Vt. 424, 426, 620 A.2d 1268, 1269 (1992) (if supported by affidavits or other evidence, all allegations made in opposition to summary judgment are regarded as true). On February 26, 1992, Florin Andrew, an employee of Fulflex of Vermont, Inc., was injured while working on a calendar machine at his workplace. The calendar machine is designed to flatten raw, hot rubber into a wide, thin layer by running it through a series of calendar rolls. Andrew was injured when his arm was pulled into an unguarded nip point on one of the rolls.

Two other employees, one in 1983 and the other in 1989, had been injured at the same nip point while working on the same machine. VOSHA inspections took place at Fulflex on December 5, 1984 and July 20-21, 1987. During the latter inspection, the state inspector examined every machine, including the calendar machine on which Andrew was injured. The inspector issued two citations for VOSHA violations with respect to that machine, but did not issue a citation for the unguarded nip point, a conspicuous hazard that violated an OSHA regulation.

In November 1992, Andrew and his wife filed suit against (1) the State, for undertaking and negligently performing the safety inspections; (2) the company that modified and assembled the calendar machine, for breach of warranty, negligence, and failure to warn of an unreasonably dangerous condition (3) Andrew's employer and his employer's insurer, for failing to discover and remedy the machine's safety hazards; and (4) two of Andrew's co-workers, for negligence in failing to reduce or eliminate the unreasonable risk of harm posed by the machine. By agreement of the parties, the claims against all of the defendants except the State were dismissed. The State moved for summary judgment on the ground that the suit was barred by the doctrine of sovereign immunity. The superior court granted the motion, rejecting plaintiffs' contention that the State was liable under the Restatement (Second) of Torts § 324A (1965) for its allegedly negligent inspection of Andrew's workplace. The court ruled that Restatement § 324A was inapplicable because, by conducting regulatory VOSHA inspections, the State did not assume Fulflex's duty of providing a safe workplace.

On appeal, plaintiffs argue that there is a genuine issue of material fact as to (1) whether the State undertook to render services to Fulflex or Andrew by conducting the inspections, and (2) whether Fulflex or Andrew relied on that undertaking. In their reply brief, plaintiffs contend that it would be inappropriate for this Court to consider the issue of sovereign immunity because the superior court did not address that issue. They request that we remand the matter for the superior court to consider the issue in light of our recent decision in Sabia v. State, 164 Vt. 293, ----, 669 A.2d 1187, 1197 (1995), where we found a private analog for the State's statutory duty to render assistance in response to particularized and substantiated claims of child abuse.

At the outset, we reject plaintiffs' request that we remand this matter for the superior court to determine whether the State has waived sovereign immunity. One of the grounds for the State's request for summary judgment was that the State had not waived its immunity under 12 V.S.A. § 5601(a) because the Good Samaritan doctrine, as set forth in Restatement § 324A, does not provide a private analog for VOSHA inspections. Indeed, this was the central issue contested before the superior court, though the court did not frame its decision in terms of sovereign immunity. The court's implicit ruling, however, was that the State had not waived sovereign immunity and thus was entitled to summary judgment because there is no private analog for plaintiffs' claims. Further, assuming Sabia is relevant to this case, we need only review the superior court's ruling in light of Sabia rather than remand the matter for the court to reexamine the legal issue anew.

We now turn to the substantive issue at hand. Under 12 V.S.A. § 5601(a), the State is liable for injuries caused by the negligent conduct of its employees acting within the scope of their employment "under the same circumstances, in the same manner and to the same extent as a private person would be liable." Thus, the State retains its immunity "for governmental functions for which no private analog exists," LaShay v. Department of Social & Rehabilitation Servs., 160 Vt. 60, 68, 625 A.2d 224, 229 (1993), and waives its immunity only to the extent a plaintiff's cause of action is comparable to a recognized cause of action against a private entity. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 486, 622 A.2d 495, 498 (1993).

In Denis Bail Bonds, a corporation engaged in the issuance of bail bonds alleged that the Vermont Department of Banking and Insurance was liable for its negligence in failing to inform the corporation of complaints of wrongdoing that had been filed against the corporation's agent. To determine if the negligence claim had a legitimate private analog, we considered whether the statute governing the department's supervision of insurance carriers created a duty requiring the department to notify the corporation of the complaints. Id. at 488-89, 622 A.2d at 499-500. After noting that the existence of a duty is primarily a question of law involving policy considerations, id. at 487, 622 A.2d at 499, we concluded that the State owed no duty to the corporation because the statutory scheme set forth to regulate insurance companies was for the protection of the public in general and did not create a duty toward the bail bond corporation. Id. at 488-89, 622 A.2d at 499-500.

In Sabia, we considered whether variants of the Good Samaritan doctrine found in related Restatement sections served as a private analog to the plaintiffs' allegation that SRS failed to render assistance to them, as mandated by statute, after receiving substantiated complaints that they had been sexually abused. We concluded that (1) the relevant statute imposed a mandatory duty on SRS to investigate claims of abuse and to provide substantive assistance to those whose claims of abuse were substantiated, and (2) the statutory duty was comparable to the duty imposed by the Good Samaritan doctrine. Sabia, 164 Vt. at ----, 669 A.2d at 1191-96.

Here, plaintiffs contend that VOSHA's authorization of state inspections of private workplaces creates a duty that is analogous to the duty imposed upon private parties under Restatement § 324A, which provides as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Section 324A requires not only a threshold showing that there was an undertaking to render services for another to protect a third party, but also a showing that the undertaking increased the risk of harm, or the party undertaking to perform services has assumed the other's duty to the third party or caused the third party to rely on the undertaking.

In support of their argument that Restatement § 324A creates a private analog for their claim against the State, plaintiffs assert that the State may be liable for injuries caused by negligent VOSHA inspections, just as a private workers' compensation insurer may be liable for its failure to inspect, or negligent inspection of, its insured's workplace. See Derosia v. Liberty Mut. Ins. Co., 155 Vt. 178, 183-87, 583 A.2d 881, 883-86 (1990) (private insurance carrier may be liable under § 324A for failure to inspect employer's workplace if insurer undertook to render specific service necessary for protection of employees and thereby induced reliance or insurer's lack of reasonable care increased risk of harm). We reject this comparison, and conclude that, as a matter of law under the facts and circumstances of this case, VOSHA's regulatory enforcement scheme is not an undertaking of services to employers or their workers, and thus does not create a duty that establishes a private analog under Restatement § 324A.

We first examine the VOSHA statutory scheme. The policy behind the statute is that "all persons shall be provided by their employers with safe and healthful working conditions at their work place." 21 V.S.A. § 201(a) (emphasis added). To further that policy goal, the...