Kennery v. State, No. 10–448.

Docket NºNo. 10–448.
Citation38 A.3d 35, 2011 VT 121
Case DateNovember 23, 2011
CourtUnited States State Supreme Court of Vermont

2011 VT 121
38 A.3d 35

Andrew V. KENNERY, Administrator of the Estate of Gladys M. Kennery
v.
STATE of Vermont, Travis L. Valcourt, Francis J. LaBombard, III and Other Unknown Members of the Department of Public Safety.

No. 10–448.

Supreme Court of Vermont.

Nov. 23, 2011.


[38 A.3d 36]

Thomas W. Costello of Thomas W. Costello, P.C., and Timothy J. O'Connor, Jr.,

[38 A.3d 37]

of O'Connor Law Offices, Brattleboro, for Plaintiff–Appellant.

William H. Sorrell, Attorney General, and Mark J. Patane, Assistant Attorney General, Montpelier, for Defendants–Appellees.

Present: DOOLEY, JOHNSON and SKOGLUND, JJ., and TOOR and BENT, Supr. JJ., Specially Assigned.

DOOLEY, J.

¶ 1. Plaintiff Andrew Kennery, on behalf of the estate of Gladys Kennery, appeals the decision of the Windham Superior Court granting the State of Vermont's motion for summary judgment on plaintiff's complaint alleging negligence, gross negligence, and civil rights violations against the State of Vermont, Vermont State Troopers Travis Valcourt and Francis LaBombard, III, and the Vermont Department of Public Safety (VDPS). Plaintiff's lawsuit stems from a “welfare check”—that is, a check to determine that a person is safe and secure—the troopers performed on plaintiff's decedent, Gladys Kennery. Gladys's daughter had requested that the troopers check on her elderly mother, but the troopers searched the wrong residence. Meanwhile, Gladys had collapsed in her backyard and was unable to get back up and reach shelter. Gladys was found the next morning and died twelve days later from hypothermia caused by prolonged exposure to the cold.

¶ 2. The superior court held that the State owed no duty of reasonable care in performing the welfare check, thereby defeating plaintiff's claims. We hold that the trial court erred in granting summary judgment to defendants. Genuine issues of material fact remain as to whether a duty of care was created under the Restatement (Second) of Torts § 324A based upon the State's undertaking to perform the welfare check and whether the troopers breached that duty such that the State is liable under the Vermont Tort Claims Act (VTCA). We also hold that the court erred in dismissing plaintiff's claim of gross negligence against Troopers Valcourt and LaBombard. Accordingly, we reverse and remand.

¶ 3. The following material facts are not in dispute. On March 15, 2007, Gladys Kennery, an elderly woman who lived alone in Marlboro, Vermont, left her home for a doctor's appointment. Lorraine Kennery, Gladys's daughter, was concerned about her mother returning home safely because Gladys had previously fallen on the path from her garage to her house. Lorraine had therefore arranged a system wherein Gladys would call Lorraine each time she left and returned home. When her mother did not call after the appointment, Lorraine, who lives in White Plains, NY, called the VDPS at around 6:30 p.m. and requested that they check her mother's residence to be sure she arrived safely.

¶ 4. Troopers Valcourt and LaBombard received the welfare check assignment and at about 10:20 p.m. called Lorraine, speaking with her for five to ten minutes. Lorraine gave Trooper Valcourt the address of Gladys's house at 3902 Augur Hole Road and informed him that Gladys had previously fallen entering her house.1 The troopers proceeded in cars. Trooper LaBombard allegedly knew that number

[38 A.3d 38]

3902, an even-numbered home, should be on the right side of the road as he approached from Route 9 based on the common numbering practice. However, upon seeing a mailbox on the left side of the road with Gladys's house number on it, he pulled into the driveway adjacent to the mailbox, and Trooper Valcourt followed him. They proceeded to search the house directly across the road from Gladys's house. The troopers knocked on the door, walked completely around the house, and checked the garage. They found no one.

¶ 5. After searching for approximately twenty minutes, Trooper Valcourt called the dispatcher and requested that Lorraine be notified of the results. Valcourt then put out a “be on the lookout” bulletin for Gladys via general broadcast and requested that the Brattleboro Police Department search the Brattleboro Memorial Hospital parking lot for her car. Valcourt also called Brattleboro Memorial Hospital and Grace Cottage Hospital to inquire whether Gladys had been admitted, and he left a message for the VDPS day shift supervisor requesting that the welfare check remain open for follow-up by the next shift.

¶ 6. The next morning, a postal worker discovered Gladys lying on the back porch of her home. In fact, Gladys had fallen while walking from her car to her house upon returning from her appointment and had crawled up on the porch. Twelve days later, Gladys died at Brattleboro Memorial Hospital from hypothermia.

¶ 7. Plaintiff sued the State of Vermont, Troopers Valcourt and LaBombard, and the VDPS for negligence, gross negligence, and tortious infringement of Gladys's constitutional rights. Plaintiff alleged that the troopers' conduct in performing the welfare check was careless because they searched the wrong house, contrary to Lorraine's instructions, and that their actions amounted to gross negligence because they failed to take simple steps that would have revealed their error. Plaintiff claimed that the State could be found liable because the common law tort of negligence, as developed in § 324A of the Restatement (Second) of Torts, sets forth an applicable duty of care, and the troopers negligently breached that duty of care, such that he could sue the State under the Vermont Tort Claims Act (VTCA), 12 V.S.A. § 5601(a). Plaintiff further alleged that the troopers were grossly negligent and were individually liable for the damages caused by their conduct. Defendants moved for summary judgment on all claims.

¶ 8. The trial court granted summary judgment to defendants on all counts of plaintiff's complaint and dismissed it. On plaintiff's primary claim of negligence against the State of Vermont, the court held that the plaintiff failed to show an applicable duty of care, relying on our recent decision in Kane v. Lamothe, 2007 VT 91, 182 Vt. 241, 936 A.2d 1303, and specifically emphasizing the absence of a statutory duty. The court also rejected finding a duty under the Vermont emergency medical care or “good Samaritan” statute, 12 V.S.A. § 519, or under a common law theory based on § 324 of the Restatement (Second) of Torts (as opposed to § 324A). Because there was no duty, the court held that plaintiff could not establish that the troopers were grossly negligent, adding that it would not find a valid complaint of gross negligence even if there were a duty. The court dismissed the Civil Rights Act complaint under 42 U.S.C. § 1983, primarily because plaintiff would have to show conduct more culpable than gross negligence and could not do so. Because these holdings resulted in dismissal of the case, the court did not reach the State's argument that the troopers were

[38 A.3d 39]

protected by qualified immunity or that the VTCA does not allow liability because the officers were performing a “discretionary” function. See 12 V.S.A. § 5601(e)(1). This appeal followed.2

¶ 9. The central issues for our consideration are whether, as a matter of law, the State owed a duty of reasonable care in performing the welfare check, and if so, whether the doctrine of sovereign immunity bars plaintiff's tort suit against the State. We must also address whether the trial court properly dismissed plaintiff's gross negligence claim against Troopers Valcourt and LaBombard on summary judgment. We hold that the trial court failed to address the existence of a common law duty of care under the Restatement (Second) of Torts § 324A and consequently did not properly address sovereign immunity under § 5601(a) and § 5601(e). Therefore, we reverse summary judgment on plaintiff's negligence claim against the State. We further hold that summary judgment on plaintiff's gross negligence claim against the troopers is inappropriate, and that qualified immunity is not a bar to their liability.

¶ 10. We review an award of summary judgment de novo. Summary judgment is appropriate if, with facts taken as alleged by the nonmoving party and reasonable doubts and inferences resolved in favor of the nonmoving party, “there is no genuine issue as to any material fact” and “any party is entitled to judgment as a matter of law.” V.R.C.P. 56(c)(3); Cassani v. Hale, 2010 VT 8, ¶ 20, 187 Vt. 336, 993 A.2d 422.

¶ 11. The threshold question for both plaintiff's negligence and gross negligence claims is whether the troopers owed Gladys Kennery a duty to perform the welfare check with due care. We agree with plaintiff that he raised a valid claim that the troopers had a common law duty of care under Restatement (Second) of Torts § 324A and that the undisputed facts do not resolve such a claim against him.

¶ 12. The Restatement (Second) of Torts § 324A (1965) 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.

In this case, plaintiff alleged that the troopers expressly undertook to render the welfare check services to Lorraine 3

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(the other), that they recognized or should have recognized that the welfare check services were necessary for the protection of Gladys (the third person), that they did not exercise reasonable care to protect their undertaking, and that...

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33 practice notes
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 4 Enero 2019
    ...of the VTCA is to waive sovereign immunity for recognized causes of action, particularly for common law torts." See Kennery v. State, 2011 VT 121, ¶ 26, 191 Vt. 44, 38 A.3d 35. First enacted in 1961, the VTCA generally makes the State liable for injuries, with delineated exceptions, resulti......
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 4 Enero 2019
    ...of the VTCA is to waive sovereign immunity for recognized causes of action, particularly for common law torts." See Kennery v. State, 2011 VT 121, ¶ 26, 191 Vt. 44, 38 A.3d 35. First enacted in 1961, the VTCA generally makes the State liable for injuries, with delineated exceptions, resulti......
  • Burwell v. Peyton, Case No. 5:12–cv–166.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • 14 Septiembre 2015
    ...increased the risk of harm or ... a showing that harm was suffered because of reliance on the undertaking." Kennery v. Vermont, 2011 VT 121, ¶ 14, 191 Vt. 44, 53, 38 A.3d 35, 40 (citing Restatement (Second) of Torts § 324A (1965) ). "[V]ery little action on the part of the defendants is req......
  • Zullo v. State, No. 17-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 4 Enero 2019
    ...of the VTCA is to waive sovereign immunity for recognized causes of action, particularly for common law torts." See Kennery v. State, 2011 VT 121, ¶ 26, 191 Vt. 44, 38 A.3d 35. First enacted in 1961, the VTCA generally makes the State liable for injuries, with delineated exceptions, resulti......
  • Request a trial to view additional results
33 cases
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 4 Enero 2019
    ...of the VTCA is to waive sovereign immunity for recognized causes of action, particularly for common law torts." See Kennery v. State, 2011 VT 121, ¶ 26, 191 Vt. 44, 38 A.3d 35. First enacted in 1961, the VTCA generally makes the State liable for injuries, with delineated exceptions, resulti......
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 4 Enero 2019
    ...of the VTCA is to waive sovereign immunity for recognized causes of action, particularly for common law torts." See Kennery v. State, 2011 VT 121, ¶ 26, 191 Vt. 44, 38 A.3d 35. First enacted in 1961, the VTCA generally makes the State liable for injuries, with delineated exceptions, resulti......
  • Burwell v. Peyton, Case No. 5:12–cv–166.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • 14 Septiembre 2015
    ...increased the risk of harm or ... a showing that harm was suffered because of reliance on the undertaking." Kennery v. Vermont, 2011 VT 121, ¶ 14, 191 Vt. 44, 53, 38 A.3d 35, 40 (citing Restatement (Second) of Torts § 324A (1965) ). "[V]ery little action on the part of the defendants is req......
  • Zullo v. State, No. 17-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 4 Enero 2019
    ...of the VTCA is to waive sovereign immunity for recognized causes of action, particularly for common law torts." See Kennery v. State, 2011 VT 121, ¶ 26, 191 Vt. 44, 38 A.3d 35. First enacted in 1961, the VTCA generally makes the State liable for injuries, with delineated exceptions, resulti......
  • Request a trial to view additional results

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