Kennery v. State, No. 40-1-08 Wmcv (Wesley, J., Oct. 26, 2010)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                             CIVIL DIVISION
Windham Unit                                                                               Docket No. 40-1-08 Wmcv


Andrew V. Kennery,
Administrator of the Estate
Of Gladys M. Kennery,
      Plaintiff

           v.

State of Vermont, Travis L. Valcourt,
Francis J. LaBombard, III and other
Unknown Members of the Vermont
Department of Public Safety
       Defendants


                                 ORDER GRANTING DEFENDANTS’ MOTION
                                       FOR SUMMARY JUDGMENT

        Defendants have moved for summary judgment as a matter of law on all three counts in
Plaintiff’s complaint — negligence, gross negligence, and civil rights violations — against the
State of Vermont and Troopers Travis L. Valcourt and Francis J. LaBombard, III. The lawsuit
stems from a welfare check the Troopers performed on Plaintiff ‘s decedent, Gladys Kennery.
The Troopers responded to a request made by Gladys’ daughter, Lorraine, to check on the status
of her elderly mother. Despite Lorraine’s specific instructions on how to locate and identify the
home, the Troopers arrived at and searched a home that was not Gladys’ residence. In fact,
Gladys had collapsed in her backyard on the way from her vehicle to her house, and was unable
to get back up or pull herself into the shelter of her home. She remained outside until the
following morning, and died twelve days later from injuries sustained that night.

        Gladys’ estate commenced this suit against the State of Vermont and the Troopers
individually seeking compensatory and punitive damages for the injuries suffered by Gladys
prior to her death, and for medical and funeral expenses. For the following reasons, the Court
concludes that the State owed no special duty to Gladys, thus defeating the causes of actions
based on negligence and gross negligence, and that the Defendants did not violate Gladys’ civil
rights. Accordingly, the Court grants Defendant’s Motion for Summary Judgment.

Standard

        In order to prevail on a motion for summary judgment, the moving party must show that
there is no genuine issue as to any material fact, and that it is entitled to judgment as a matter of
law. V.R.C.P. 56(c)(3). “[T]he party opposing summary judgment is entitled to the benefit of all
reasonable doubts and inferences.” Carr v. Peerless Ins. Co., 168 Vt. 465, 476 (1998). In order
to rule as a matter of law, the Court must accept as true Plaintiff’s allegations made in opposition
to Defendants’ motion for summary judgment. Sabia v. State, 164 Vt. 293, 297 (1995).
Nonetheless, a party seeking or opposing summary judgment may not rely on mere allegations in
the pleadings but must set forth specific facts supported by affidavits or other appropriate
evidence. V.R.C.P. 56(c), (e).

Facts

        Gladys Kennery, an elderly woman who lived alone in her home in Marlboro, Vermont,
visited a doctor on the evening of March 15, 2007. Gladys’ daughter, Lorraine, who lives in
White Plains, New York, expected to receive a call from her mother confirming Gladys’ arrival
home. After not receiving any contact from Gladys, Lorraine called the Vermont Department of
Public Safety (VDPS) – known in the community as the Vermont State Police - and requested a
welfare check on Gladys. Lorraine informed VDPS that Gladys had been ill and that she might
have had trouble negotiating the pathway from her vehicle to her home, considering a recent fall
outside her home. Lorraine gave VDPS explicit directions to Gladys’ home on [street number
redacted] Auger Hole Road. Lorraine explained that the mailbox for the house was directly
across the road from the driveway, that the driveway to the house was on the right side of the
road traveling north from Route 9, and that the house was visible from the road. She also
informed VDPS of the location of a spare key to the home and granted VDPS permission to use
the key to check on Gladys’ condition.

         Approximately 4 to 5 hours after Lorraine’s initial contact with VDPS, Troopers Valcourt
and LaBombard responded to the call. After receiving the assignment, Valcourt telephoned
Lorraine and spoke with her for approximately 5 to 10 minutes. During the phone call, Lorraine
gave Valcourt specific directions to the house, informed Valcourt about the spare key, and told
him that her mother had previously fallen. Trooper Valcourt drove up a long driveway on the
left side of the road, while Trooper LaBombard continued on Auger Hole Road. LaBombard
eventually came upon a mailbox on the left side of the road with Kennery’s housenumber ([street
number redacted]) on it, and pulled into the driveway adjacent to the mailbox. Having returned
to Auger Hole Road, Valcourt saw LaBombard’s vehicle and also pulled into the driveway.
Despite the information Lorraine gave VDPS and then to Valcourt, the Troopers proceeded to
investigate premises associated with the wrong house. Gladys’ house was actually directly
across the road from the premises where the Troopers searched.

        Believing that they were at the right home, the Troopers knocked on doors and looked
through windows, walked around and scanned the perimeter of the house, and checked inside the
garage. There was no one inside the house, nor any visible footprints in the snow around the
home. The house did not have a house number on it, nor were there any vehicles parked
anywhere on the property. As events proved, the house did not match the description Lorraine
had given, nor did the Troopers recover a spare key. After searching the location for upwards of
20 minutes, Valcourt called the dispatcher and requested that Lorraine be informed of the
Troopers’ findings. Valcourt also put out a “be on the lookout” bulletin for Kennery and her
vehicle via general broadcast, and requested the Brattleboro Police Department search the
Brattleboro Memorial Hospital parking lot for Gladys’ vehicle. Valcourt also personally



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contacted Brattleboro Memorial Hospital and Grace Cottage Hospital to determine whether
Kennery had been admitted to either facility. Valcourt then left a message for the day shift
supervisor informing him of his findings and requested that the matter remain open so that a
trooper from the next shift follow-up on the complaint.

         As Lorraine suspected, Gladys had collapsed while walking from her car to her house
after returning from her doctor’s appointment. The next morning, a postal worker discovered
Gladys lying on her back porch. The postal worker called for assistance and Gladys was taken
by ambulance to Brattleboro Memorial Hospital. She died at the hospital twelve days later of
complications from hypothermia suffered while lying outside overnight.

Analysis

        The estate of Gladys Kennery has now brought suit against Defendants seeking damages
for Gladys’ injuries and death. Defendants have moved for summary judgment on all three of
Plaintiff’s claims. As discussed further below, the Court holds that Plaintiff has failed to show
that the State owed a duty to Plaintiff, defeating Plaintiff’s negligence and gross negligence
causes of action; that even if a duty could be established, the evidence against the Troopers failed
to depict the total absence of care required to support a claim of gross negligence; and that
Plaintiff has not demonstrated a viable claim for a civil rights violation. Accordingly, summary
judgment for Defendants must be granted as a matter of law.

1. Plaintiff’s Negligence Complaint Against the State

        Generally, lawsuits against the State are barred unless the State waives its sovereign
immunity. Kane v. Lamothe, 2007 VT 91, ¶ 6, 182 Vt. 241. Through the Vermont Tort Claims
Act, 12 V.S.A. § 5601, the State waives its immunity for injury to persons caused by the
negligent act or omission of a state employee while acting within the scope of employment,
subject to certain delineated exceptions. Id. Under 12 V.S.A.§ 5602, such actions may only be
prosecuted against the State, and not directly against an employee, unless the injury was caused
by gross negligence or willful misconduct. § 5602(b). The State will only be liable, however,
“under the same circumstances, in the same manner and to the same extent as a private person
would be liable to the claimant.” 12 V.S.A. § 5601(a). Therefore, the waiver of § 5601(a) is
limited to circumstances where there is a private analog for the theory of liability advanced by
the plaintiff. Kane, 2007 VT 91, ¶ 6.

        The private analog alleged by Plaintiff here is the common law tort of negligence.
Plaintiff alleges that the Troopers’ investigation was careless and rushed in that they ignored
Lorraine’s directions and her description of Gladys’ house, and then conducted a cursory
investigation of the incorrect house not matching Lorraine’s description, which had its own
mailbox with a different number. Plaintiff argues that the officers’ failure to take a number of
simple steps which would have revealed that they were at the wrong house amounts to gross
negligence. To prove negligence, however, a plaintiff must show that the defendant owed her a
legal duty, that the breach of that duty was a proximate cause of harm, and that she suffered
actual damages. Kane, 2007 VT 91, ¶ 7. Thus, the first, and in this instance dispositive,
question of law for the court is whether the State owed Plaintiff a duty of care under the
circumstances present. Id.


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        Where the State is sued for negligence, considerations of sovereign immunity compel a
distinction between the State’s general responsibility to its citizens and any particular duty to one
of them. In determining whether a governmental body has undertaken a specific duty of care
towards a particular individual or group, as distinguished from its duty to the public at large, the
court considers four factors: (1) whether an ordinance or statute sets forth mandatory acts for the
protection of a particular class of persons; (2) whether the government has actual knowledge that
particular persons within that class are in danger; (3) whether there has been reliance by those
persons on the government's representations or conduct; and (4) whether the government's failure
to use due care would increase the risk of harm beyond its present potential. Sabia v. State, 164
Vt. 293, 299 (1995).

        As to the first factor, Plaintiff has not referenced any statutory language which sets forth
specific standards guiding a police officer’s acts when undertaking a welfare check for the
protection of someone in Gladys’ position. Plaintiff instead cites to various rules, guidelines and
procedures of the VDPS. See Plaintiff’s Statement of Undisputed Facts, ¶ 1 (rules and
regulations specifically dealing with missing persons investigations), ¶ 2 (rules and regulations
regarding dispatching services), ¶ 3 (practices and procedures to confirm the location of a
residence during a welfare check), ¶ 4 (guidelines for dispatchers to use with respect to welfare
checks). Whatever bearing these directives may have on the Department’s expectations for the
conduct of its officers, they do not create a duty to third parties. Kane, 2007 VT 91, ¶ 11
(emphasis added). Indeed, as the Supreme Court noted, the statutes governing the Vermont State
Police “do not set forth any mandatory acts, much less mandatory acts for the protection of a
particular class of persons.” Id. at ¶ 10 (emphasis added).1

         The issues here so closely resemble the Supreme Court’s decision in Kane that this Court
finds that opinion controlling on the issue of duty. Kane v Lamothe, 2007 VT 91. The Kane
Court was also faced with the task of determining whether police officers owed a specific duty to
an individual seeking assistance, different from the duty police officers owe to the public at
large. In Kane, an officer responded to a domestic violence call. While at the scene, the officer
interviewed the aggressor boyfriend in a separate room, and then interviewed the plaintiff, who
had visible marks of abuse on her face, within earshot of the boyfriend. Id. at ¶ 3. The officer
left the apartment without arresting the boyfriend or investigating further. Later the same
evening, the boyfriend attacked and sexually assaulted the plaintiff, and again the following
morning. Id. at ¶¶ 3-4. A week later, the boyfriend was arrested and later found guilty of
domestic assault and sexual assault. He was sentenced to twenty to forty-five years in prison. Id.

       After the plaintiff filed suit against the State and the officer for negligence and gross
negligence respectively, the Supreme Court unanimously upheld the Superior Court’s decision to
dismiss the case. It concluded that the State owed no special duty to plaintiff that would support

        1
            To be sure, one of the purposes of the Department of Public Safety, among others, is conducting searches
for lost or missing persons. 20 V.S.A. §§ 1811, 1824. Yet, as with many other public safety functions assigned to
the Department, the statutes impose no particular requirements for the discharge of this aspect of its mission.
Absent any express statement of legislative intent, the Department can not be charged with any individualized duty
to a particular missing person. Id.



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a claim of negligence. Id. at ¶ 12. The Court held that although the State’s law enforcement
duties are provided for by statute, where those statutes do not set forth mandatory acts for the
protection of a particular class of persons, they do not create any special duty when officers fail
to take certain specific actions in the performance of law enforcement responsibilities. Id. at ¶ 9.
The Court characterized the decision to arrest a suspected aggressor as discretionary, and
concluded that the officers were under no duty to arrest the boyfriend under the circumstances
presented. Id. As here, plaintiff in Kane invoked Vermont State Police Manuals claiming that
they established a special duty owed to plaintiff, since the manuals set forth specific procedures
for investigating a report of domestic violence. Id. at ¶ 10. However, the Court held that internal
policies and manuals do not generally create legal requirements for which individuals may hold
the State liable. Id. at ¶ 11. Such guidelines and procedures do not have the same authority as
statutes and ordinances, making them insufficient to establish that the State owed any particular
duty to a potential victim during a police investigation of a domestic violence complaint. Id.,
citing Sabia, 164 Vt. 293.

        Sabia v. State, 164 Vt. 293 (1995), the case on which Plaintiff relies in arguing for the
existence of a duty between the State and Gladys, is a far less recent case than Kane, and is
distinguishable in several important ways from the matter at hand. In Sabia, the Supreme Court
found that the Legislature had charged the State Department of Social and Rehabilitation
Services (SRS) with a specific duty to protect child victims of sexual abuse. Clear statutory
language mandated that SRS take specific actions during the course of a child abuse
investigation. The breach of duty arose from the explicit failure to follow the statutory mandate.
164 Vt. at 299. Indeed, the Court found that the SRS employees actually knew that children
were being sexually abused and were in danger, since they had been told of the abuse by the very
children in question. Id. Additionally, the abused children relied on SRS’s promises to
intervene, and as a result, were deterred from seeking other avenues of relief, satisfying the
detrimental reliance prong of the duty test. Id. Finally, the Court held that SRS’s failure to act
increased the risk of injury to the children by allowing the harm to continue, and by leading the
perpetrator to believe that he could continue his abuse with impunity. Id. Thus, all four of the
factors weighed heavily in favor of plaintiff, thereby establishing a special duty owed by the
government to the plaintiff.

       In contrast to Sabia, but akin to Kane, Plaintiff here can not identify any statutory
language requiring specific acts to be taken by police officers when responding to a missing
persons report or a request to conduct a welfare check. As stated, language in an internal manual
or guideline is insufficient to establish a legal duty. Unlike the situation involving the child
victims in Sabia, the Troopers here did not have actual knowledge that Gladys was in grave
physical danger, only that she might possibly require some assistance based on her daughter’s
uncertainty.2 Further, the facts supporting detrimental reliance and exacerbation of harm so
prominent in Sabia are far less compelling here, particularly when compared with the analogous
considerations in Kane. Whatever expectations Loraine might have had about the results of her
request for a welfare check, there was no direct reliance by Gladys that compares to the direct

2
  Compare Kane, where the officer observed visible marks of abuse on the plaintiff’s face during the course of his
investigation, and then left the plaintiff alone with the apparent aggressor. 2007 VT 91, ¶ 9. Yet, the Kane Court
omitted any discussion of this aspect of the Sabia analysis, concluding that the absence of clear statutory intent
precluded any finding of duty notwithstanding the victim’s apparent vulnerability.


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complaints of abuse by the child victims in Sabia. Similarly, the correlation here between the
claimed negligence and the exacerbation of likely harm suffered by Gladys remains indistinct in
comparison with the clearly enhanced danger found compelling in Sabia. Again, Kane affords
another important benchmark, since the Court discerned no duty there despite the domestic
assault and rape which ensued after the alleged negligent failure to arrest. Following Kane, one
must conclude that of the four factors cited by Sabia, the first one is clearly the most important,
focusing on the existence of a specific duty recognized by statute.

         Indeed, the Sabia Court held that there is a special relationship established between SRS
and the children specifically identified to its care. 164 Vt. at 311. The statutory scheme
“imposes a duty that demands special vigilance to assure that assistance will be provided to those
who are helpless to protect themselves.” Id. Thus, social policy considerations warranted
imposition of liability on the party charged with duty to protect those who depend on that
protection, not only to provide compensation to abused children but to encourage the protective
agency to perform its duty diligently in the future. Id. at 312. No similar special relationship has
been recognized with respect to the Department of Public Safety and members of the public at
large who are reported as missing. In sum, the imposition of tort liability on the State for its
failure to act in Sabia must be seen as a very limited and special case, inapplicable to the
circumstances here.


2. Plaintiff’s Alternate Theories of a Source of Defendants’ Duty

        Plaintiff argues for application of Vermont's so-called “Good Samaritan” statute as an
alternate private analog to negligence. The statute requires that “[a] person who knows that
another is exposed to grave physical harm shall ... give reasonable assistance to the exposed
person ....” 12 V.S.A. § 519(a). The statute, however, is not applicable because the facts alleged
do not support a finding that the Troopers knew that Plaintiff was exposed to grave physical
harm. See Kane, 2007 VT 91, n.4 (“Good Samaritan” statute did not apply as facts alleged did
not support finding that state trooper knew that plaintiff was exposed to grave physical harm
despite responding to call that plaintiff was in danger from former boyfriend, observing visible
signs of physical abuse on plaintiff’s body, and leaving scene without arresting boyfriend who
would go on to brutally attack plaintiff).3

        Plaintiff proposes yet another analog to establish the duty it seeks to enforce, citing to
Restatement (Second) of Torts § 324. § 324 imposes a duty of care upon those who take charge
of helpless persons, even when they are not required to do so. Restatement (Second) of Torts §
324. The Supreme Court in Sabia made reference to § 324, noting that, given its statutory duty,
SRS could hardly claim exemption from liability because it did not take charge of plaintiffs, or
because its failure to act left plaintiffs in no worse position than they would have been had
plaintiffs never sought its help. Sabia, 164 Vt. at 305. As previously explained, however, there
was no statutory duty on the part of the Troopers here to render assistance to Gladys. Moreover,

3
  Furthermore, the duties imposed by the “Good Samaritan” statute are limited. See, Hardingham v.United
Counseling Service of Bennington, 164 Vt. 158, 163-64 (1995) (duty created by statute held “to refer only to the
extent of the rescuer's effort to comply with the statutory duty to render aid, not to the adequacy of the aid actually
rendered”).


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the Troopers can hardly be said to have taken her into their charge. Indeed, the Troopers were
responding to a request for a welfare check based on the possibility that Gladys was missing.
They had no information implicating any existing injury, much less knowledge of an injured
person within the immediate scope of their attention. In contrast, defendants in Sabia actually
acknowledged the immediacy of the peril to the children, and gave assurances that they would
either remove plaintiff from the abusive home, or insure that the abuser was removed. Id. at 299.
Under the facts here, § 324 does not further inform the analysis supporting Plaintiff’s claim as to
the nature of Defendants’ duty.

3. Plaintiff’s Gross Negligence Complaints Against the Individual Trooper Defendants

        The Court next considers Plaintiff's claim of gross negligence against Troopers Valcourt
and LaBombard, which is plead in an effort to satisfy 12 V.S.A.§ 5602(b). The identical logic
undercutting Plaintiff’s claim that the State is responsible for the Troopers negligence applies
similarly to defeat the allegation that they were grossly negligent. Because this Court holds that
Plaintiff has been unable to establish a specific duty owed by the VDPS to Plaintiff, Plaintiff’s
claims against the individual Troopers likewise cannot satisfy the more exacting elements for an
action in gross negligence, which is necessary to the imposition of individual liability. Powers v.
OCS, 173 Vt. 390, 398 (2002). Thus, summary judgment must also be granted in favor of
Defendants as to the gross negligence claims against Troopers Valcourt and LaBombard.4

4. Plaintiff’s Claims of Civil Rights Violations

        Plaintiff also alleges that the conduct of the Troopers violated Gladys Kennery’s rights
under the Fourteenth Amendment of the Constitution. Summary judgment must be entered on
this count as well.

         In the context of a claim for damages arising from a tortuous infringement of civil rights,
a state actor only violates the Fourteenth Amendment where the challenged conduct is “so
egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.” Pena
v. Deprisco, 432 F.3d 98, 122 (2d Cir. 2005). This standard is more stringent than gross
negligence, which this Court has already determined was not met by the evidence in support of
Plaintiff’s pleadings. Thus, from the outset, Plaintiff has failed to meet this first prong necessary
to sustain its civil rights violation claim. Indeed, the Kane-Sabia analysis, which dictates the
absence of any duty on these facts arising under common law, affords a close-fitting template
foreshadowing a similar fate for Plaintiff’s claim of a civil rights violation.

        The acts which “shock the conscience” must take the form of affirmative behavior, since
a defendant’s passive conduct will not support a constitutional claim. Id. at 109-10. A police
officer’s promise to act is not a sufficiently affirmative act. See Bright v. Westmoreland County,
4
  Even assuming a duty, the evidence could not support gross negligence as a matter of law. Gross negligence is a
“heedless and palpable violation of legal duty respecting the rights of others” that is “substantially and appreciably
higher in magnitude and more culpable than ordinary negligence.” Shaw, Adm'r v. Moore, 104 Vt. 529, 531(1932);
Hardingham v. United Counseling Service of Bennington County, Inc., 164 Vt. 478, 481 (1995). While the Troopers
either misunderstood the directions to Gladys’ home, or failed to follow them accurately, their efforts at trying to
locate Gladys went well beyond acts that could be accurately described as “heedless. Again, compare Kane, 2007
VT 91, ¶ 12 (as a matter of law, good faith errors in judgment do not evince gross negligence).


                                                          7
443 F.3d 276, 284 (3d Cir. 2006) (officer’s misrepresentation that he would arrest a person who
would go on to subsequently murder plaintiff’s daughter did not violate plaintiff’s constitutional
rights as police did not actually restrain plaintiff’s ability to protect his family); Pinter v.
Johnson, 54 F.3d 1169, 1175-76 (4th Cir. 1995) (en banc) (officer’s misrepresentation that he
would jail plaintiff’s subsequent assailant was not a constitutional violation as officer did not
impose any limitation of plaintiff’s ability to defend herself). Far more obviously than in the
authorities just cited, Defendants’ failure to locate Gladys was not an affirmative deprivation of
her autonomy.

        Furthermore, the challenged conduct must put the victim in a worse position than the
victim was in before the defendant’s affirmative act. Such an affirmatively-created danger was
recognized in Kniepp v. Tedder, where police officers gave the impression that they would
render assistance to an intoxicated woman, but instead, left the woman alone to find her way
home after separating her from her husband who was unable to help her. 95 F.3d 1199, 1209 (3d
Cir. 1996). Here, on the other hand, having been unable to locate her, the Troopers did not
affirmatively alter the status or position of Gladys in any way which enhanced her exposure to
danger.

        Similarly, it cannot reasonably be said that the Troopers were made aware of a grave
danger and then willfully disregarded that risk. Unlike Kniepp, the Troopers were made aware
only of the possibility of Gladys’ peril. Notably, Plaintiff points to no Vermont cases informing
the Court’s assessment of the Plaintiff’s claim based on the Fourteenth Amendment. Thus,
holding that the authorities just discussed make the claim untenable, the Court grants
Defendants’ motion for summary judgment.5

                                                          ORDER
    WHEREFORE it is hereby ORDERED: Defendants’ Motion for Summary Judgment is
GRANTED.

         Dated at Newfane, Vermont this            26th       day of October, 2010.

                                                                _____________________________
                                                                Hon. John P. Wesley
                                                                Presiding Judge




5
 Given its ruling that no cause of action for a Fourteenth Amendment civil rights violations can be sustained against
Defendants, the Court need not address Defendants’ qualified immunity affirmative defense.


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