Stocker v. State

Decision Date03 September 2021
Docket Number2020-081
CourtVermont Supreme Court
PartiesTina Stocker, et al. v. State of Vermont, et al.

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.


¶ 1. Plaintiffs challenge the trial court's decision granting judgment as a matter of law to the State. They argue that the court erred in narrowing the scope of the Vermont Department for Children and Families' (DCF) legally actionable duty and in concluding that no reasonable jury could find that DCF's actions were the proximate cause of then-children B.H. and W.H.'s injuries. They also argue that the discretionary function exception to the State's tort liability does not bar their claim and that the trial court improperly considered factors other than the law and evidence in granting the State judgment as a matter of law. We affirm.

¶ 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 § 4915a nor § 4915b should be deemed to create a private right of action. See 33 V.S.A. § 4915b(b). The court thus determined:

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 33 V.S.A. § 4915." Specifically, it found that the only actionable duty of care was that upon receipt of a report of abuse or neglect, DCF must promptly determine whether a report constitutes an allegation of abuse or neglect as defined in 33 V.S.A. § 4912(1); otherwise, the requirements of § 4915 are not actionable because they involve discretionary functions protected by sovereign immunity.

¶ 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 33 V.S.A. [§§] 4915a and 4915b."

¶ 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," V.R.C.P. 50(a)(2), if a claim cannot be maintained under controlling law, V.R.C.P. 50(a)(1); see also Gero v. J.W.J. Realty, 171 Vt. 57, 59, 757 A.2d 475, 476 (2000). Judgment as a matter of law may be granted where "there is no legally sufficient evidentiary basis for a reasonable jury to find for [the nonmoving] party." V.R.C.P. 50(a)(1). "In reviewing the trial court's grant of judgment as a matter of law, we review the evidence in the light most favorable to plaintiff-the nonmoving party-and exclude any modifying evidence." Buxton v. Springfield Lodge No. 679, Loyal Order of Moose, Inc., 2014 VT 52, ¶ 17, 196 Vt. 486, 99 A.3d 171. "If plaintiff fails to present evidence on an essential element of the case . . . judgment should be granted for defendant." Id. In other words, for purposes of evaluating plaintiffs' claims on appeal, we assume that the evidence plaintiffs presented is true and disregard contrary evidence presented by the State; the question before us is whether this evidence is sufficient to prove plaintiffs' claims. We review the court's decision granting judgment as a matter of law without deference. Roy v. Woodstock Cmty. Tr., Inc., 2013 VT 100A, ¶ 58, 195 Vt. 427, 94 A.3d 530.

¶ 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 33 V.S.A. §§ 4911-4915. Second, plaintiffs contend that DCF undertook to protect W.H. and B.H. from abuse and was negligent in carrying out its undertaking. We conclude that plaintiffs' claims based on DCF's alleged violation of duties arising from statutes are limited to claims based on DCF's obligation to receive reports of abuse and promptly determine whether they constitute abuse under § 4915(a), and that in the particular circumstances of this case, plaintiffs cannot establish proximate cause between the failures reflected in the record and plaintiffs' injuries. With respect to plaintiffs' alternate theory, we conclude that plaintiffs failed to establish the threshold requirements to 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 33 V.S.A. §§ 4911-4915, and that the trial court erred in narrowing DCF's statutory duty, which it characterized as to "receive, record, and evaluate reports of abuse" under § 4915. Drawing on our decision in Sabia v. State, plaintiffs highlight the language in § 4915 providing that DCF "shall" promptly respond to reports of abuse or neglect, "shall" begin an assessment or investigation within seventy-two hours, and "shall" report to and seek assistance from law enforcement in cases involving allegations of child sex abuse. See 164 Vt. 293, 669 A.2d 1187 (1995). Plaintiffs contend that there was substantial evidence that DCF ignored reports of alleged abuse altogether and failed to assess or investigate valid reports of abuse.

¶ 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...

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