Lafond v. VT Dept. of Social and Rehabilitation Services

Lafond v. Dept. of Soc. & Rehabilitation Servs.  (96-591); 167 Vt. 407; 
708 A.2d 919

[Filed 23-Jan-1998]

       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 96-591


Gary and Tracy Lafond                        Supreme Court

                                             On Appeal from
    v.                                       Chittenden Superior Court

Vermont Department of Social &               September Term, 1997
Rehabilitation Services, State of
Vermont and Coleman Baker


Shireen Avis Fisher, J.

       Jerome F. O'Neill and Laura K. Collins of O'Neill Crawford & Green,
  Burlington, for Plaintiffs-Appellees.

       Jeffrey L. Amestoy, Attorney General, Montpelier, and Michael O. Duane
  and Barbara L. Crippen, Assistant Attorneys General, Waterbury, for
  Defendant-Appellant.


PRESENT:  Dooley, Morse and Johnson, JJ., and Allen, C.J. (Ret.) and
          Gibson, J. (Ret.), Specially Assigned


       MORSE, J.   On May 7, 1992, plaintiffs' infant son died when he became
  entangled in a curtain cord while in his crib at Kiddie Kare Day Care, a
  licensed day-care center.  In a lawsuit against defendant Vermont
  Department of Social and Rehabilitation Services, plaintiffs alleged that
  their son's death was caused in part by the Department's negligent
  inspection and supervision of the day care facility.  The trial court
  denied the Department's motion for summary judgment based upon a claim of
  sovereign immunity, and we allowed an interlocutory appeal.  V.R.A.P. 5(b). 
  We now hold that the trial court erred in denying the Department's motion
  for summary judgment, and therefore reverse.

                                     I.

       Kiddie Kare had been licensed by the Department as a day-care facility
  since 1981.  In 1989, plaintiffs enrolled their two daughters there, and
  the following year enrolled their son

 

  Tyler, who attended until his death in May 1992.  Prior to enrolling their
  daughters, plaintiffs, who were eligible for a child-care subsidy, inquired
  of a Department employee whether Kiddie Kare was a covered facility and
  whether it was a good day-care center.  The employee responded that she had
  nothing bad on file about Kiddie Kare and that the Department would provide
  the subsidy.  Plaintiffs also visited the center before enrolling their
  daughters.

       On May 4, 1992, a Department employee inspected Kiddie Kare as part of
  an annual relicensing requirement.  Three days later, on May 7, 1992,
  plaintiffs' son Tyler became entangled in a curtain cord while in his crib
  at the Kiddie Kare center.  Strangulation from the cord caused suffocation
  and death.  The inspector had not observed a curtain cord hanging down from
  the window next to the crib in which Tyler died.  Department regulations
  did not prohibit or restrict curtain cords at the time of Tyler's death,
  although information about the risk of strangulation by such cords had been
  been publicly available from the United States Consumer Product Safety
  Commission since 1985, and the inspector acknowledged that she would have
  inquired about its proximity to the crib if she had seen it.

       Following Tyler's death, plaintiffs filed suit alleging three causes
  of action: (1) that defendants State of Vermont and the Department had
  negligently promulgated day care safety regulations and had negligently
  inspected the Kiddie Kare facility, and (2) had negligently recommended the
  Kiddie Kare center; and (3) that defendant Coleman Baker, a departmental
  officer, had been grossly negligent in overseeing the inspection of Kiddie
  Kare.

       The Department moved for summary judgment based on sovereign immunity
  and qualified official immunity.  The trial court ultimately granted the
  motion as to the second and third counts as well as the
  negligent-promulgation claim of the first count.  The court denied the
  motion, however, as to the negligent-inspection claim of the first count,
  ruling that the Department owed a duty of care to plaintiffs under the
  State's day-care licensing and regulatory scheme, and that there was a
  private analog between the State's duty and the duty owed by a private
  insurance company to perform an adequate safety inspection of its insured's
  premises

 

  under this Court's decision in Derosia v. Liberty Mutual Ins. Co., 155 Vt.
  178, 187, 583 A.2d 881, 885 (1990).  This appeal by the Department
  followed.

                                     II.

       The death of a child under the grievous circumstances presented here
  evokes profound sympathy for the child's family, especially his parents,
  whose pain and anguish can scarcely be imagined.  Our duty, however, is to
  determine whether, as a matter of law, the doctrine of sovereign immunity
  bars plaintiffs' tort suit for damages against the Department.  Analyzed
  dispassionately, the law dictates that sovereign immunity applies.  The
  licensing and inspection of day care facilities are inherently governmental
  functions which find no private analog or duty of care in our common law. 
  Accordingly, under the Vermont Tort Claims Act, 12 V.S.A. §§ 5601-5606, and
  the relevant case law plaintiffs' action is barred.

       Sovereign immunity protects the state from suit unless immunity is
  expressly waived by statute.  LaShay v. Department of Social and
  Rehabilitation Servs., 160 Vt. 60, 67, 625 A.2d 224, 228 (1993).  The State
  of Vermont has waived its immunity to certain suits under 12 V.S.A. §
  5601(a), which in pertinent part provides:

     The state of Vermont shall be liable for injury 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 
     .   .  .  .

       Thus, the general rule is that "[t]he government remains immune .  . 
  . for governmental functions for which no private analog exists."  LaShay,
  160 Vt. at 68, 625 A.2d  at 229.  By requiring a grounding in the common
  law, "this approach serves to prevent the government's waiver of sovereign
  immunity from encompassing purely `governmental' functions."  Denis Bail
  Bonds, Inc. v. State, 159 Vt. 481, 485-86, 622 A.2d 495, 498 (1993).  Its
  purpose is to "`waive immunity from recognized causes of action and . . .
  not to visit the Government with novel and unprecedented liabilities.'" 
  Id. at 486, 622 A.2d  at 498 (quoting Feres v. United states, 340 U.S. 135,
  142 (1950)).  Hence, "the threshold issue is whether the plaintiff's
  factual allegations

 

  `satisfy the necessary elements of a cause of action against the State
  comparable to one that may be maintained against a private person.'"  Sabia
  v. State, 164 Vt. 293, 298, 669 A.2d 1187, 1191 (1995) (quoting Denis Bail
  Bonds, 159 Vt. at 487, 622 A.2d at 498).

       The question whether the State may be liable in tort for its allegedly
  negligent inspection of private facilities is not one of first impression
  in Vermont.  Indeed, we recently addressed a a claim similar to plaintiffs'
  in Andrew v. State, 165 Vt. 252, 682 A.2d 1387 (1996).  There, the
  assertion was that a State inspection under the Vermont Occupational Safety
  and Health Act (VOSHA), 21 V.S.A. §§ 201-264, had negligently failed to
  discover and remedy "a conspicuous hazard that violated an OSHA
  regulation," resulting in injury to the plaintiffs.  Id. at 254, 682 A.2d 
  at 1388.  There, as here, the plaintiffs claimed that the State's
  regulatory and inspection scheme created a duty analogous to the duty
  imposed upon private parties under Restatement (Second) of Torts § 324A
  (1965), which provides as follows:

     One who undertakes, gratuitously or for consideration, to render
     sevices 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 support of their argument that Restatement § 324A established a
  private analog for their claim against the State, the plaintiffs in Andrew
  relied on this Court's decision in Derosia, 155 Vt. 178, 583 A.2d 881. 
  There, we held that a private insurance carrier that had voluntarily
  assumed the duty of ensuring the safety of its insured's workplace through
  periodic inspections could be held liable to an injured employee under §
  324A.  We rejected the comparison to Derosia in Andrew, however, holding
  that VOSHA's regulatory scheme was not designed as an

 

  undertaking of service to the employer.  Unlike Derosia, we noted, a
  government safety inspection "does not involve a consensual or contractual
  relationship between the inspector and the employer," nor was it a
  situation in which the "employer lacked safety expertise and [the] insurer
  offered to fill that gap."  Andrew, 165 Vt. at 258, 682 A.2d  at 1391. 
  Rather, the relationship between the government and the employer,
  "refute[d] any suggestion that the State ha[d] undertaken the employer's
  duty to provide a safe workplace."  Id.  As we explained:

     § 324A's threshold requirement that there be an undertaking of
     services is not met here, as a matter of law. . . . [T]he State is not
     undertaking a service for the employer or its employees, but rather is
     policing the employer's compliance with the law.  To be sure, VOSHA is
     intended to protect the public, but the statute is not intended to shift
     the burden of protecting workers and compensating them for their workplace
     injuries from the employers and their workers' compensation insurers to the
     State.

  Id. at 260, 682 A.2d  at 1392.

       Plaintiffs here attempt to distinguish Andrew, arguing that unlike
  VOSHA -- which is expressly designed to ensure that "all persons shall be
  provided by their employers with safe and healthful working conditions," 21
  V.S.A. § 201(a) (emphasis added) -- the State's day-care licensing and
  inspection scheme evinces a legislative intent to provide protective
  services directly to day care operators.  The argument is unpersuasive. 
  Like VOSHA, the purpose of the State's day care regulatory scheme is to
  ensure a safe environment, 33 V.S.A. § 3502(d).  Also like VOSHA, the
  State's regulations expressly provide that "[t]he licensee shall be
  responsible for compliance with these" standards.  Agency of Human
  Services, Children's Day Care Licensing Regulations for Early Childhood
  Programs, § A.1, 4 Code of Vt. Rules, 13-162-008-4 (1989) (emphasis added). 
  The Department's regulations, adopted pursuant to the Vermont
  Administrative Procedure Act, have the full force and effect of law.  3
  V.S.A. § 845(a); Green Mountain Realty, Inc. v. Fish, 133 Vt. 296, 298-99,
  336 A.2d 187, 189 (1975).

       Thus, like the employer under VOSHA, it is the day-care facility that
  "retains the primary responsibility for ensuring . . . safety . . . .  In
  contrast, the State is given a regulatory enforcement role."  Andrew, 165
  Vt. at 257, 682 A.2d  at 1391.  Indeed, as we noted with

 

  respect to VOSHA, the State's relationship with the day-care provider "is
  often adversarial" in nature.  Id.  Day-care providers must permit
  inspections and examinations of records by the Department, 33 V.S.A. §
  306(b)(2).  The State may sue the provider for injunctive relief or civil
  penalties for operating without a license, id. § 306(b)(5), (6), and
  day-care licenses may be revoked or suspended by the Department for
  violations that imperil health and safety, id. § 306(b)(3).  The day care
  facility may appeal any licensing action by the Department to the Human
  Services Board, and ultimately to the Supreme Court.  3 V.S.A. §3091(a),
  (f).

       Thus, the primary purpose of the Department's inspection is to enforce
  compliance with the law, not to render services to the day-care center. 
  See Andrew, 165 Vt. at 257-58, 682 A.2d  at 1391.

       The fact that Department inspectors may offer guidance to a day care
  provider on how to improve its facility does not, contrary to plaintiffs'
  assertion, establish that the State has undertaken the provider's duty of
  care toward the children under its supervision.  This is no different from
  the workplace training and educational services offered by VOSHA.  See 21
  V.S.A. § 221; 29 C.F.R. Part 1908.  Nor, as plaintiffs urge, does the
  statutory requirement that day-care facilities post a notice of health and
  safety violations, see 33 V.S.A. § 306(b)(7), somehow suggest an
  undertaking by the Department to assume the day-care center's duty of care. 
  VOSHA contains a similar requirement, see 21 V.S.A. § 225(b), and we have
  expressly held that "the State is not undertaking a service for the
  employer or its employees, but rather is policing the employer's compliance
  with the law."  Andrew, 165 Vt. at 260, 682 A.2d  at 1392; see also Corbin
  v. Buchanan, 163 Vt. 141, 143, 657 A.2d 170, 172 (1994) (town's failure to
  enforce building and fire codes did not give rise to private cause of
  action by plaintiffs injured in fire). In sum, we are not persuaded that
  the State's enforcement scheme for ensuring adequate health and safety
  standards in day-care centers creates an actionable duty to plaintiffs, any
  more than the VOSHA provisions aimed at ensuring workplace safety shift the
  responsibility for workplace safety from the employer to the State.  "In
  reality," as we observed in Andrew,

 

  "plaintiffs' cause of action amounts to a claim of negligent enforcement of
  safety standards under a regulatory statute.  There is no private analog
  for such an action."  165 Vt. at 260, 682 A.2d  at 1392.  As noted, the Tort
  Claims Act was not designed to visit the government with "`unprecedented
  liabilities,'" of which this would surely be one.  Denis Bail Bonds, 159
  Vt. at 486, 622 A.2d  at 498 (quoting Feres, 340 U.S. at 142).  Absent an
  express legislative directive to the contrary, we are not prepared to make
  the State and its officers effectively the liability insurer of day-care
  providers, or any other licensed industry.

       Indeed, the number and variety of licensing and inspection programs
  conducted by state and local governments is staggering.  Vermont statutes
  provide, for example, for the inspection of inpatient mental health
  facilities, 18 V.S.A. § 7313, nursing homes for the elderly, 33 V.S.A. §
  7108, food and drug manufacturing facilities, 18 V.S.A. § 4070, hazardous
  waste storage facilities, 10 V.S.A. § 6609, milk production facilities, 6
  V.S.A. § 2741, maple syrup processors, 6 V.S.A. § 484, frozen food
  manufacturers, 6 V.S.A. § 443, livestock dealers, 6 V.S.A. § 768,
  agricultural nurseries, 6 V.S.A. § 4023, fertilizers, 6 V.S.A. § 367,
  insecticides, 6 V.S.A. § 915, sewage treatment facilities, 24 V.S.A. §
  3502, and all plants and facilities subject to the supervision of the
  public service board, 30 V.S.A. § 29, to name a few.

       Nearly every resident or visitor to Vermont has daily contact with one
  or more entities licensed and inspected by the State.  To recognize a tort
  duty of care arising from a day care licensing and inspection scheme would
  thus have broad fiscal and policy ramifications for state and local
  governments, well beyond the parameters of this particular case.  The
  creation of such a cause of action, in our view, is a matter more properly
  addressed by the Legislature.  See Corbin, 163 Vt. at 146, 657 A.2d  at 174 
  ("The social, fiscal, tax, and public policy implications of a statute
  creating a private right of action based on a town's adoption of building
  code regulations would be enormous, and there is no indication . . . that
  the Legislature contemplated any such consequences.").

       Plaintiffs cite several decisions from other jurisdictions that have
  recognized that the state

 

  may be liable for injuries occurring in licensed day care centers. See,
  e.g., R.E. v. State, 878 P.2d 1341, 1347 (Alaska 1994) (state owed duty of
  care to patrons of day care facilities to take reasonable steps to prevent
  harm resulting from provider's sexual abuse of children in her care);
  Brasel v. Children's Servs. Div., 642 P.2d 696, 699 (Or. Ct. App. 1982)
  (plaintiffs could state negligence claim premised upon State's alleged
  failure to investigate report of suspected child abuse in day-care
  facility); C.T. v. Martinez, 845 P.2d 246, 249 (Utah 1992) (State owes
  general duty of care to patrons of licensed day care facilities, but no
  specific duty to investigate criminal background of day care employee). 
  None of these decisions involved a claim, like plaintiffs' here, that the
  State had assumed an actionable duty of care merely by virtue of its
  regulatory enforcement and inspection scheme.

       Other out-of-state decisions are more on point and more persuasive. 
  In Brown v. Department of Health & Rehabilitative Servs., 690 So. 2d 641
  (Fla. Dist. Ct. App. 1997), review dismissed, 695 So. 2d 698 (Fla. 1997),
  for example, the court specifically held that there was no common law
  analog for imposing upon the state a duty of care to the patrons of a day-
  care center simply by virtue of its licensing enforcement activities. 
  "These actions are inherent in the act of governing," the court observed,
  affirming a trial court decision to dismiss a claim of negligent
  supervision by the State.  Id. at 643.  Also instructive is Willow Tree
  Learning Ctr., Inc. v. Prince George's County, 584 A.2d 157 (Md. Ct. Spec.
  App. 1991).  There, as here, a child was injured on the premises of a
  licensed day care facility and the child's parents claimed that the
  government's licensing inspection had negligently failed to discover and
  remedy the defect.  Affirming a summary judgment in favor of the county,
  the appellate court held that the government had not undertaken a tort duty
  to the plaintiffs merely by virtue of its regulatory enforcement scheme. 
  "We hold that the State or the County does not owe any individual duty of
  care merely by the enactment of a general ordinance requiring safety
  inspections, nor by the fact that it undertook inspections for safety
  violations."  Id. at 160-61; see also Jamierson v. Dale, 670 S.W.2d 195,
  196 (Mo. Ct. App. 1984) (state inspection of day-care facilities did not

 

  create duty of care to child injured by allegedly defective playground
  surface); Annotation, Governmental Liability for Negligence in Licensing,
  Regulating, or Supervising Private Day-Care Home in Which Child is
  Injured, 68 A.L.R.4th 266 (collecting cases).

       Recent Vermont case law imposing tort duties upon the Department in
  other contexts does not mandate a contrary result.  In  LaShay we were not
  dealing with a generalized licensing and inspection scheme, but with the
  placement of a child by the Department in a foster home after there had
  been specific warnings to the Department that the child was being abused by
  the foster parent.  160 Vt. at 62-63, 625 A.2d  at 226.  Similarly, in Sabia
  it was alleged that the Department had failed to assist plaintiffs after
  repeated reports that they were being sexually assaulted by their
  stepfather.  164 Vt. at 297, 669 A.2d  at 1190-91.  In both cases, a
  custodial relationship had arisen between the specific plaintiffs and the
  Department; a settled private analog -- in LaShay, the duty imposed upon
  private child-placement agencies; in Sabia, the common-law duty to provide
  assistance to one in peril -- provided a solid common-law grounding on the
  scope of the State's duty of care.  None of these circumstances was present
  here.

       Reversed.

                              FOR THE COURT:



                              _______________________________________
                              Associate Justice