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Tuesday, October 15, 2019

Vt. high court: State Police can be sued for mistake

By Jessica M. Karmasek | Nov 30, 2011


MONTPELIER, Vt. (Legal Newsline) - The Vermont Supreme Court said last week a lower court erred in dismissing a plaintiff's claim of gross negligence against two State Police troopers who went to the wrong house when asked to do a welfare check of an elderly woman.

Andrew Kennery appealed the decision of the Windham Superior Court granting the State's motion for summary judgment.

The plaintiff alleged negligence, gross negligence and civil rights violations against the State, Vermont State Troopers Travis Valcourt and Francis LaBombard III, and the Vermont Department of Public Safety.

Kennery's lawsuit stems from a welfare check -- a check to determine that a person is safe and secure -- the two troopers performed on the decedent, Gladys Kennery.

Gladys' daughter, Lorraine, had requested 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.

She was found the next morning and died 12 days later from hypothermia caused by prolonged exposure to the cold.

The superior court ruled that the State owed no duty of reasonable care in performing the welfare check.

The state's high court, in its Nov. 23 ruling, determined that the lower court erred in granting summary judgment to the defendants, and remanded the case. Justice John Dooley authored the Court's opinion.

Genuine issues of material fact remain as to whether a duty of care was created and whether the troopers breached that duty such that the State is liable under the Vermont Tort Claims Act, the Court said.

The superior court also erred in dismissing the plaintiff's claim of gross negligence against the two troopers, Valcourt and LaBombard, the Court said.

"Here, VDPS and the troopers expressly undertook to provide the welfare check, not only by promising to do so, but also by following up on their promise, taking concrete actions to perform the welfare check, and following up on their performance with Lorraine Kennery. We therefore hold that the troopers' acts satisfied the first element of a duty under § 324A," Dooley wrote.

The same is true for the plaintiff's allegation of negligence, he said.

"Plaintiff claims that Lorraine's directions included numerous details that would have revealed to the troopers that they were searching the wrong house, such as the location of Gladys' hidden key, that Gladys' home mailbox was on the opposite side of the street from her house, and that the house was on the right side coming north from Route 9," Dooley wrote. "The troopers also admittedly knew that even-numbered homes on this street were located on the side of the street opposite the side they searched.

"Based on these and other assertions, if it is established that the troopers did receive Lorraine Kennery's instructions, and ignored those instructions and their own experience, a reasonable trier of fact could conclude that they did not exercise due care in performing the welfare check."

The Court said should the jury find that the troopers failed to exercise reasonable care, the next question of material fact is whether this failure increased the risk of harm or whether the harm suffered was due to Lorraine's reliance on the VDPS and the troopers to properly execute the check.

"We hold that a reasonable jury could find that the troopers' deviations from a standard of reasonable care in performing the welfare check could have increased the risk of severe hypothermia and death because, had they properly performed the check, the troopers could have found Gladys much earlier, limiting her exposure to the cold and thus possibly rescuing her before she suffered hypothermia, or before the hypothermia became life-threatening," Dooley wrote. "A jury could also find that Gladys suffered harm because of Lorraine's reliance on what she believed to be the troopers' competent completion of the welfare check."

The State argued that it cannot be held liable based on a common law duty of care.

The Court disagreed.

"In the case before us, the common law duty of care directly addresses the special obligation VDPS assumed to beneficiaries of welfare checks and the special obligation when the responsibility of a welfare check was accepted in the individual case," Dooley wrote.

"The fact that no statute commanded this undertaking of responsibility does not mean that no duty existed. The presence of a common law duty of care is sufficient to meet the requirements of VTCA."

The State also argued that the plaintiff's claims are barred by the discretionary function exception because the troopers made discretionary decisions about the manner in which they conducted the welfare check.

The Court said it has "no doubt" the VDPS' decision to perform or not perform welfare checks is protected by the discretionary function exemption. State Police officers must have discretion to decide whether to respond to a request in light of the demands on their on-duty time, it explained.

"The facts of this case indicate that the troopers were able to respond to the request for a welfare check four hours after it was received. If plaintiff's claim were that the troopers waited too long in responding and the delay caused the result, we would similarly hold that the State must also be protected by the discretionary function exception because VDPS must be protected in its ability to allocate limited trooper time to competing demands," Dooley wrote.

"But this case does not involve competing considerations based upon policy assessments. The discretionary activity at issue was to apply the information given the officers to search the right house. We see no public policy analysis in this activity. Thus, we cannot conclude that the actions that are at the center of plaintiff's claims are protected by the discretionary function exemption."

For the same reason it determined the State is not protected against the plaintiff's claim of negligence by the discretionary function exception of the VTCA, the Court also held that the troopers themselves are not protected against the gross negligence claims by qualified immunity.

Attorney General William Sorrell, whose office represented the defendants, told The Associated Press he was disappointed in the Court's ruling.

The decision, he said, could mean increased costs for taxpayers.

"This opens the door on the State's part for more liability going forward," he told the AP.

"It means if you sue the State and have evidence that's compelling enough to meet the standard set for a jury or fact-finder, there is more liability than there has been to date, and that means more of the taxpayers' money might be awarded to plaintiffs."

From Legal Newsline: Reach Jessica Karmasek by email at

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