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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.


                                              2018 VT 125

                                              No. 2017-387

Willis S. Sheldon, Individually and as Administrator                Supreme Court
of the Estate of Dezirae Sheldon

                                                                    On Appeal from
   v.                                                               Superior Court, Rutland Unit,
                                                                    Civil Division
Nicholas Ruggiero
                                                                    March Term, 2018


Helen M. Toor, J.

Thomas W. Costello, Sharon J. Gentry, and Adam W. Waite of Costello, Valente & Gentry,
 P.C., Brattleboro, for Plaintiff-Appellant.

Sandra A. Strempel and Kendall Hoechst of Dinse, Knapp & McAndrew, P.C., Burlington, for
 Defendant-Appellee.


PRESENT: Reiber, C.J.,1 Skoglund, Robinson, Eaton and Carroll, JJ.


        ¶ 1.      ROBINSON, J. Plaintiffs Willis S. Sheldon, individually as the father of Dezirae

Sheldon, and as administrator of the Estate of Dezirae Sheldon, appeal from the grant of summary

judgment to defendant Nicholas Ruggiero, an administrative reviewer with the Vermont

Department for Children and Families (DCF). Plaintiffs argue that defendant negligently failed to

report an allegation that Dezirae’s stepfather Dennis Duby (Duby) had abused Dezirae, eventually

leading to Dezirae’s murder at Duby’s hands. Plaintiffs present alternative theories for defendant’s

liability under: (1) Vermont’s mandated-reporter statute, which they argue creates a private right


        1
            Chief Justice Reiber was present for oral argument, but did not participate in this decision.
of action; (2) common-law negligence; or (3) negligent undertaking. We conclude that even if the

mandated-reporter statute creates a private right of action, or alternatively, even if defendant had

a common-law duty to report suspected abuse, plaintiffs’ negligent-undertaking claim fails

because defendant acted reasonably and prudently in his role as a DCF administrative reviewer.

In addition, we conclude that plaintiffs’ claim fails because defendant never undertook DCF’s

statutory obligation to investigate all potential sources of Dezirae’s injuries. Accordingly, we

affirm.

          ¶ 2.   The undisputed evidence in the summary-judgment record reflects the following.

In February 2013, Dezirae, then a one-year-old infant, was brought to the hospital with blunt-force

fractures to both of her legs. DCF investigated for suspected child abuse. See 33 V.S.A. § 4915

(mandating DCF assessment and investigation “[u]pon receipt of a report of abuse or neglect”);

id. § 4915b (outlining procedures for investigation). During the course of its investigation, mother

offered various explanations to the DCF investigator, including that in the days preceding the

injuries she was the only caregiver to Dezirae; mother “did not do this and she never saw anyone

do anything to [Dezirae]”; mother had accidentally dropped Dezirae into a crib while changing

her; Dezirae had fallen off of a chair and a couch on two separate occasions; on one occasion,

Dezirae began to crawl toward a stairwell and mother “grabb[ed] her and yank[ed] her back” by

her legs and one arm, which caused Dezirae’s legs to hit a doorframe; and mother had not slept in

two days and “had to do it,” without providing further explanation for this statement.

          ¶ 3.   Dezirae’s paternal aunt reported to DCF that mother had said that she fabricated the

story to DCF regarding pulling Dezirae away from the stairs “because [mother] felt like she needed

to come up with a story” and “that actually [mother believed] the demons had thrown Dezirae

down the stairs.” DCF spoke to mother’s then-boyfriend Duby, who noted that a month previously

he had dropped Dezirae from a height of approximately one foot into her crib. He reported that

she did not cry or seem bothered at all. DCF additionally interviewed the father of mother’s other

                                                  2
child; he had noticed bruising on Dezirae’s face and was told by mother that Duby had dropped

Dezirae into a portable crib about two weeks earlier. This allegation was consistent with a report

from his wife—a legal guardian of Dezirae’s—that reflects the same information.

        ¶ 4.   The doctors who treated Dezirae reported that the leg fractures were not consistent

with an accidental event, were caused by different types of force at different times, and were at

least a week old before Dezirae was brought to the hospital. Based on this information and that

noted above, DCF gained temporary custody of Dezirae in February 2013 and placed her in a home

outside of mother’s care.

        ¶ 5.   In April 2013, based on the recommendation of the DCF investigator who had done

the interviews described above, DCF substantiated physical abuse and medical neglect against

mother. Regarding physical abuse, the case determination report explained that the medical

evidence showed that the injuries were not accidental and that mother “stated that she ha[d] been

the only caregiver for Dezirae.” Regarding medical neglect, the report noted that mother had

admitted that “she knew Dezirae was injured for several days” but “did not seek medical treatment

because she was afraid she would get into trouble.”2

        ¶ 6.   In May 2013, mother sought administrative review of the substantiation of the

report that she engaged in physical abuse and medical neglect. See 33 V.S.A. § 4916a(c)(1).

Defendant, an independent contractor with DCF, was the administrative reviewer assigned to the

case.   An administrative reviewer is “a neutral and independent arbiter who has no prior

involvement in the original investigation of the allegation,” id. § 4916a(f), and is tasked with

determining whether to reject or accept DCF’s substantiation or “place the substantiation

determination on hold and direct [DCF] to further investigate the case based upon the




        2
        In April 2013, mother was charged with, and eventually pled guilty to, cruelty to a child.
13 V.S.A. § 1304.
                                             3
recommendations of the reviewer.” Id. § 4916a(g)(1)-(3). The parties do not dispute that a DCF

administrative reviewer is statutorily mandated to report suspected child abuse. Id. § 4913.

       ¶ 7.    DCF placed Dezirae back into mother’s care in early October 2013. Subsequently,

also in October 2013, defendant met with mother for her administrative-review conference. See

Id. § 4916a(d)-(e). During this interview, and in a similar fashion to her earlier interview with

DCF, mother offered various, conflicting accounts for Dezirae’s injuries—including that mother

originally did not know what happened and made up a story because she felt obligated to provide

one, that the injuries could have happened while Dezirae was at her maternal grandmother’s home,

and that her then-boyfriend Duby had caused the injuries.

       ¶ 8.    After the interview, defendant spoke with the DCF investigator who had

recommended substantiating the abuse claims against mother. His goals in speaking to her were

to learn more about Duby and whether he had been substantiated for abuse, and to give the

investigator a chance to weigh in on which of mother’s versions was accurate. 3                In this


       3
          Defendant asserts in his brief that “[i]t is not uncommon for Administrative Reviewers
to meet with investigators or other DCF personnel to discuss their thoughts before making a final
substantiation determination because relevant information may not make it into the written
record.” Nothing in the statutory scheme, see 33 V.S.A. § 4916a, or the DCF regulatory scheme
concerning the administrative review process, see Procedures for Conducting an Administrative
Review § 3005, Code of Vt. Rules 13 172 300, allows for the administrative reviewer to have ex-
parte, extra-record contact with DCF caseworkers concerning the subject of the substantiation
review. Indeed, the entire statutory framework for administrative review of a DCF abuse
substantiation suggests that the Legislature intended a baseline of due process for the subject of
the substantiation. Notably, under the applicable statute, the subject of the substantiation is given
a redacted copy of the investigation file, which reinforces the notion that they are entitled to notice
of the evidence against them. 33 V.S.A. § 4916a(d). The subject’s conference with the
administrative reviewer gives them a chance “to present documentary evidence or other
information that supports [the subject’s] position and provides information to the reviewer in
making the most accurate decision regarding the allegation.” Id. § 4916a(e). The statute and rules
do not authorize the reviewer to conduct any independent investigation but, instead, give the
reviewer the opportunity to “place the substantiation determination on hold and direct [DCF] to
further investigate the case based upon the recommendations of the reviewer.” Id. § 4916a(g)(3).
Moreover, the administrative reviewer is supposed to be neutral and independent, with no prior
involvement in the original investigation. Id. § 4916a(e). The apparent custom followed by
defendant and cited in defendant’s brief creates a situation where, as here, the administrative-
review decision is at least partially based on extra-record evidence about which the subject has no
                                                   4
conversation, he indicated to the investigator that mother had claimed that Duby had caused the

injuries. The caseworker explained that she felt mother was the culprit due to the differing

accounts she had provided to DCF. Defendant, who had read the DCF investigation intake report,

agreed with the caseworker’s assessment and thought that mother was lying because both during

DCF’s investigation and during mother’s interview with defendant she gave varying, inconsistent

explanations—one of which involved Duby—that were not consistent with how the injuries

actually occurred.4

       ¶ 9.    In a written decision issued on December 5, 2013, and copied to the Commissioner

of DCF, defendant upheld DCF’s substantiation of abuse and medical neglect against mother. The

decision noted mother’s position that she “did not know what happened to [Dezirae],” and “[pled]

guilty to the medical neglect,” but, “[a]s far as the broken bones it was [her] boyfriend that dropped

her not [mother].” In support of upholding the substantiation, the decision cited mother’s

admission during her administrative-review conference to purposely lying to detectives; the

medical evidence that the fractures were not accidental and occurred at different times; mother’s

knowledge of Dezirae’s injuries for several days before seeking treatment; mother’s role as “sole

caretaker” to Dezirae; and her “inconsistent explanations regarding how [Dezirae] received two

fractured legs.”

       ¶ 10.   DCF relinquished custody of Dezirae to mother in early February 2014. Within a

matter of weeks, Dezirae was brought to the hospital with skull fractures to both sides of her head.




notice or opportunity to respond. This appears to be inconsistent with the applicable statutory and
regulatory protections of the subject. If this is truly an accepted custom at DCF, the Department
should review its policies and practices in light of the applicable law.
       4
          Defendant subsequently followed up with a different DCF caseworker because he was
curious as to why Dezirae had been placed back into her mother’s care. That caseworker opined
to him that mother had not caused the fractures to Dezirae’s legs.
                                                 5
These injuries ultimately proved fatal. Duby, who by this time was Dezirae’s stepfather, was

charged with her murder. He was ultimately convicted after pleading guilty.

       ¶ 11.   In February 2016, plaintiffs sued defendant, arguing that he had negligently failed

his statutory obligations as a mandated reporter to report to DCF mother’s allegation that Duby

had caused Dezirae’s leg injuries, which she made during the administrative-review conference.

This failure to report, plaintiffs alleged, denied DCF the ability to adequately evaluate Dezirae’s

placement back into mother’s care. In addition, plaintiffs contend that defendant undertook a duty

to Dezirae—which he breached—when he decided to follow up with the DCF caseworker and

“informally report and investigate” mother’s allegation against Duby.

       ¶ 12.   Defendant moved for summary judgment in March 2017, arguing that he was not

liable because the mandated-reporter statute does not create a private right of action; defendant

was not obligated in 2013 to make a new report of abuse because Duby was not a new suspect;

defendant’s report complied with the statute; and DCF’s failure to act on mother’s allegation about

Duby was an intervening event. Defendant additionally contended that plaintiffs’ negligent-

undertaking claim failed because he “did not ‘undertake’ to ‘render services’ ” to Dezirae or

plaintiffs or do so in a manner that increased the risk of harm.

       ¶ 13.   The trial court granted summary judgment to defendant in September 2017. The

court concluded that the mandated-reporter statute does not impliedly create a private right of

action; that, in the absence of the statute creating a private right of action, plaintiffs could not use

defendant’s failure to report as the basis for a common-law-negligence claim; and that defendant

had not engaged in an actual “undertaking” to “perform [defendant’s] investigation in the service

of another” in a manner that “create[d] or increase[d] a risk of harm to Dezirae.” This timely

appeal followed.

       ¶ 14.   We review a trial court’s decision on a motion for summary judgment without

deference, using the same standard as the trial court. Provost v. Fletcher Allen Health Care, Inc.,

                                                   6
2005 VT 115, ¶ 10, 179 Vt. 545, 890 A.2d 97. Summary judgment is appropriate when, construing

the facts as alleged by the nonmoving party and resolving reasonable doubts and inferences in

favor of the nonmoving party, there are no genuine issues of material fact and judgment is

appropriate as a matter of law. V.R.C.P. 56.

       ¶ 15.   On appeal, plaintiffs advocate three theories of liability based on: (1) an implied

private right of action created by the mandated-reporter statute; (2) a common-law duty of care

created and shaped by the mandated-reporter statute; and (3) the duty defendant assumed when he

undertook to investigate mother’s allegations against Duby. We address each argument in turn.

                            I. Private Right of Action Under 33 V.S.A. § 4913

       ¶ 16.   Plaintiffs argue that, pursuant to LaShay v. Department of Social & Rehabilitation

Services, 160 Vt. 60, 625 A.2d 224 (1993), and the Restatement (Second) of Torts § 874A,

Vermont’s mandated-reporter statute, 33 V.S.A. § 4913, creates an implied private right of action

for damages for children, their families, and their estates, who suffer injury due to a statutory

mandated reporter’s failure to report suspected abuse.5 We decline to address this question because


       5
           Section 874A of the Restatement (Second) of Torts (1965), which this Court has
repeatedly relied on, see, e.g., Delmer v. State, 174 Vt. 157, 167, 811 A.2d 1214, 1224 (2002),
explains that:

                When a legislative provision protects a class of persons by
               proscribing or requiring certain conduct but does not provide a civil
               remedy for the violation, the court may, if it determines that the
               remedy is appropriate in furtherance of the purpose of the legislation
               and needed to assure the effectiveness of the provision, accord to an
               injured member of the class a right of action, using a suitable tort
               action or a new cause of action analogous to an existing tort action.

        We do not decide whether, as plaintiffs argue, LaShay implicitly recognized a private right
of action to enforce § 4913, nor whether, if it has not, we should recognize a private right of action.
We note a split of authority from other jurisdictions that have examined this question. Compare
Becker v. Mayo Found., 737 N.W.2d 200, 208-09 (Minn. 2007) (concluding that mandated-
reporter statute did not impliedly create private right of action), and Berry v. Watchtower Bible &
Tract Soc’y of N.Y., Inc., 879 A.2d 1124, 1128 (N.H. 2005) (same), and Doe v. Marion, 645
S.E.2d 245, 249 (S.C. 2007) (same), with Ham v. Hosp. of Morristown, Inc., 917 F. Supp. 531,
537 (E.D. Tenn. 1995) (concluding that mandated-reporter statute impliedly created private right
                                                   7
we conclude that this record does not support a claim that defendant breached his duty under the

statute.

           ¶ 17.   Defendant did not have reasonable cause to report mother’s allegation that Duby

had caused Dezirae’s leg injuries because the allegation added nothing to the existing universe of

allegations, and mother’s recitation of the repetitious allegation alongside various other

inconsistent claims was not sufficient to trigger a duty to report.

           ¶ 18.   Section 4913(a), as it existed in 2013, obliged defendant to make a report when he

had “reasonable cause to believe that any child has been abused or neglected” within twenty-four

hours of learning this information. Pursuant to § 4914, as it existed in 2013, defendant would have

needed to send the report to “[t]he Commissioner or designee,” with defendant’s and the child’s

personal contact information, “the nature and extent of the child’s injuries,” evidence of previous

abuse or neglect of the child, and “any other information that the reporter believes might be helpful

in establishing the cause of the injuries or reasons for the neglect as well as protecting the child

and assisting the family.”

           ¶ 19.   Under this framework, someone in defendant’s position—an administrative

reviewer examining DCF’s substantiation of already-reported and investigated abuse—is not

required to rereport the allegations that have already been reported and investigated. If anything,

he was required to make a new report, outside of the eventual substantiation decision, only upon

learning of a cause or instance of abuse previously unreported to and uninvestigated by DCF.

           ¶ 20.   Here, in the course of his duties as an administrative reviewer, defendant

interviewed mother, who provided—as she had during DCF’s investigation—a litany of potential

reasons for Dezirae’s injuries. This litany included an allegation against Duby, alongside various

alternate and conflicting explanations.        This allegation substantially mirrors the allegation



of action), and Beggs v. State Dep’t of Soc. & Health Servs., 247 P.3d 421, 425 (Wash. 2011)
(same).
                                              8
attributed to mother and previously documented in the DCF file that Duby had dropped Dezirae

into her crib. The father of mother’s other child and his wife each separately reported to DCF this

allegation by mother. It was not a new allegation that the DCF investigator had not had the

opportunity to investigate further.

       ¶ 21.   Moreover, the context of mother’s allegation against Duby did not give defendant

reasonable cause to believe he had new information that DCF did not already have. The impact of

mother’s accusation against Duby was greatly diluted by her myriad, alternate explanations for

Dezirae’s injuries, as well as her admission to lying about the injuries to governmental authorities.

In this context, as a matter of law, defendant did not have reasonable cause to make a report. We

accordingly affirm the trial court’s judgment against plaintiffs on their claim based on § 4913.

                                  II. Common-Law Negligence

       ¶ 22.   Plaintiffs argue that, if § 4913 itself does not create a private right of action, the

statute (1) creates a special relationship between defendant and Dezirae giving rise to a duty in a

common-law-negligence claim, and (2) furnishes the standard of care under the doctrine of

negligence per se.

       ¶ 23.   This legal theory is distinct from plaintiffs’ “private right of action” theory in that

it relies on claims that § 4913 establishes a special relationship between defendant and Dezirae

that gives rise to a common-law duty of care, and that § 4913 establishes the standard of care for

fulfilling that common-law duty; it does not posit a private cause of action for damages directly on

account of defendant’s alleged failure to comply with the statute. However, because this argument,

like the private-right-of-action argument, requires plaintiffs to show that defendant failed to

comply with § 4913, we affirm the trial court’s summary judgment for defendant on the same

grounds relied upon above.

       ¶ 24.   Where a party has an existing legal duty to another, a safety statute may serve as

rebuttable evidence that the defendant breached the applicable standard of care, thereby shifting

                                                 9
the burden of production to the defendant.6 See Bacon v. Lascelles, 165 Vt. 214, 222, 678 A.2d

902, 907 (1996) (explaining that “proof of the violation of a safety statute creates a prima facie

case of negligence” that “raises a rebuttable presumption of negligence and shifts the burden of

production to the party against whom the presumption operates”); Larmay v. VanEtten, 129 Vt.

368, 371, 278 A.2d 736, 738-39 (1971) (“The rules of the road are safety statutes and proof of their

violation, on the part of one charged with negligence, makes out a prima facie case of negligence

against the offending operator. But this presumption of negligence is, of course, open to rebuttal.”

(citation omitted)). We have adopted the Restatement (Second) of Torts § 286 (1965), “which

defines the elements of a safety statute or regulation” that may establish the standard of care.

Dalmer v. State, 174 Vt. 157, 164, 811 A.2d 1214, 1222 (2002). Under the Restatement, the statute

or regulation must have been intended to protect the class of persons to which the plaintiff belongs

against the particular hazard and harm that resulted. Restatement (Second) of Torts § 286(a)-(d).

       ¶ 25.   Importantly, the safety statutes in the above line of authority do not themselves

create a privately enforceable legal duty; they merely supply the standard of care in the face of an

established common-law duty. Where a plaintiff seeks to use a safety statute as the standard of

care under the prima facie negligence rule, there must be an existing duty recognized by the

common law. As the New Hampshire Supreme Court has explained:

               The doctrine of [prima facie negligence] . . . plays no role in the
               creation of common law causes of action. Thus, in many cases, the
               common law may fail to recognize liability for failure to perform
               affirmative duties that are imposed by statute.

                Recognizing this distinction, we first inquire whether the plaintiff
               could maintain an action at common law. Put another way, did the
               defendant owe a common law duty of care to the plaintiff? If no
               common law duty exists, the plaintiff cannot maintain a negligence

       6
           This “prima facie negligence” doctrine is different from the negligence per se rule,
applied in many jurisdictions. The negligence per se rule provides that a breach of a safety statute
conclusively demonstrates that the defendant violated the standard of care. See Marzec-Gerrior v.
D.C.P. Indus., Inc., 164 Vt. 569, 575-76, 674 A.2d 1248, 1252 (1995) (Dooley, J., concurring)
(explaining differences between prima facie negligence and negligence per se approaches).
                                               10
               action, even though the defendant has violated a statutory duty. If a
               common law duty does exist and there is an applicable statute, the
               defendant, in a negligence action, will be held to the statutory
               standard of conduct if the plaintiff is in a class the legislature
               intended to protect, and the harm is of a type the legislature intended
               to prevent.

Marquay v. Eno, 662 A.2d 272, 277 (N.H. 1995) (citations omitted).

       ¶ 26.   Here, plaintiffs argue that defendant had a common-law duty to protect Dezirae

because of his “special relationship” with her arising from defendant’s status as a mandatory

reporter under § 4913. See Restatement (Second) of Torts § 315 (1965) (“There is no duty so to

control the conduct of a third person as to prevent [the person] from causing physical harm to

another unless . . . (b) a special relation exists between the actor and the other which gives to the

other a right to protection.”). But even assuming they could establish a special relationship

sufficient to create a common-law duty of care, plaintiffs’ argument still rests on the claim that the

standard of conduct required pursuant to that duty is defined by § 4913. That is, plaintiffs’ own

argument still requires plaintiffs to show defendant violated § 4913.

       ¶ 27.   For the reasons set forth above, supra, ¶¶ 20-21, we conclude on this record that as

a matter of law, defendant did not violate § 4913.

                                    III. Negligent Undertaking

       ¶ 28.   Last, plaintiffs argue that defendant assumed a duty when he took it upon himself

to meet with the DCF investigator to himself investigate whether it was Duby who had caused

Dezirae’s injuries. Having undertaken to investigate the cause of Dezirae’s injuries, plaintiffs

argue, defendant was liable for negligently failing to perform that investigation.

       ¶ 29.   We disagree and conclude that, as a matter of law, defendant is not liable for

negligent undertaking because there is no evidence demonstrating that he specifically engaged in

an undertaking of the scope asserted by plaintiffs. Further, even if defendant had undertaken to




                                                 11
investigate Duby, his subjective intent and unilateral, uncommunicated actions do not support a

negligent-undertaking claim.

        ¶ 30.   This court has adopted § 324A of the Restatement (Second) of Torts, which

“delineates when an undertaking to render services to another may result in liability to a third

person.” Derosia v. Liberty Mut. Ins., 155 Vt. 178, 182, 583 A.2d 881, 883 (1990). Section 324A

of the Restatement (Second) of Torts provides that a person who undertakes, whether for free or

compensation, to render services to another that the person should recognize as necessary for the

protection of a third person, or the third person’s property, is subject to liability to the third person

for failure to exercise reasonable care in the undertaking if:

                  (a) [the] failure to exercise reasonable care increases the risk of
                such harm, or

                  (b) [the person] 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.

The § 324A subsections (a), (b), and (c) are disjunctive—the plaintiff need only meet one to

survive summary judgment. Derosia, 155 Vt. at 188-89, 583 A.2d at 887.

        ¶ 31.   Before considering these subsections, we “require[] a threshold showing that there

existed an undertaking to render services for another for the protection of a third party.” Kennery

v. State, 2011 VT 121, ¶ 14, 191 Vt. 44, 38 A.3d 35. We have noted that “courts generally require

very little action on the part of defendants to find an undertaking.” Sabia v. State, 164 Vt. 293,

303, 669 A.2d 1189, 1194 (1995). But, for there to be an “undertaking” at all, the defendant must

have undertaken to do the specific task he or she is accused of performing negligently, and the

extent of the undertaking defines the scope of the liability. Murphy v. Sentry Ins., 2014 VT 25,

¶ 34, 196 Vt. 92, 95 A.3d 985; see also Dekens v. Underwriters Labs. Inc., 132 Cal. Rptr. 2d 699,

702 (Ct. App. 2003) (“The foundational requirement of the good Samaritan rule is that in order for


                                                   12
liability to be imposed upon the actor, [the actor] must specifically have undertaken to perform the

task that [the actor] is charged with having performed negligently . . . .” (quotation omitted)); Fry

v. Medicare-Glaser Corp., 605 N.E.2d 557, 560 (Ill. 1992) (“Under the voluntary undertaking

theory of liability, the duty of care to be imposed upon a defendant is limited to the extent of its

undertaking.”)

       ¶ 32.     In the past, this Court has closely scrutinized the actual task assumed by the

defendant in determining whether there was the threshold “undertaking.” In Lanford v. Vermont

Department of Social & Rehabilitation Services, for instance, we examined a negligent-

undertaking claim against the Department of Social and Rehabilitation Services (SRS) after a child

died at a daycare following an annual SRS relicensing inspection. 167 Vt. 407, 708 A.2d 919

(1998). We rejected this claim because SRS’s undertaking was in a “regulatory enforcement role”;

the “inspection [was] to enforce compliance with the law, not to render services to the day care

center”; and while the “Department inspectors may offer guidance to a day-care provider on how

to improve its facility,” this did not prove “that the State ha[d] undertaken the provider’s duty of

care toward the children under its supervision.” Id. at 412, 708 A.2d at 921-22.

       ¶ 33.     Similarly, in Andrew v. State, we reviewed a negligent-undertaking claim brought

by a private employee who had been injured on his employer’s machine following a State

inspection of the business premises pursuant to the Vermont Occupational Safety and Health Act

(VOSHA), 21 V.S.A. §§ 201-264. 165 Vt. 252, 682 A.2d 1387 (1996). We held that the § 324A

“threshold requirement that there be an undertaking of services [was] not met” because, under the

VOSHA statutory scheme, “the State is not undertaking a service for the employer or its

employees, but rather is policing the employer’s compliance with the law.” Id. at 260, 682 A.2d

at 1392. We explained, “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.; cf. Derosia, 155 Vt. at

                                                 13
186-87, 583 A.2d at 886 (holding that employer’s workers’-compensation insurance carrier’s

undertaking to perform inspection of workplace premises supported negligent-undertaking claim).

       ¶ 34.   In this case, the evidence of an actual undertaking is insufficient as a matter of law.

The record lacks any evidence that when defendant spoke to the DCF caseworker about Duby he

specifically undertook to broadly investigate the cause of Dezirae’s injuries rather than to fulfill

his narrower contractual and statutory obligation as an administrative reviewer to decide whether

to uphold DCF’s substantiation of abuse against mother. The absence of evidence that defendant

attempted to perform the specific undertaking alleged by the plaintiffs is sufficient to support the

trial court’s summary judgment for defendant.

       ¶ 35.   Moreover, even if plaintiffs had proffered sufficient evidence to create a dispute of

fact as to whether defendant undertook to investigate Duby, or the cause of Dezirae’s injuries more

broadly, plaintiffs’ claim would still fail because defendant never communicated such a plan to

DCF, Dezirae, or her family. As noted above, it is not enough to simply perform an undertaking

negligently. To impose liability under § 324A subsections (a),(b), or (c), the defendant must have

increased the risk of harm to the third person, undertaken to perform a duty owed by another to a

third person, or caused harm to the third person based on the reliance of the other—here, DCF—

or the third person—here, Dezirae—on the defendant’s undertaking. There does not need to be a

contractual relationship between defendant and DCF to form an undertaking, or even necessarily

an explicit promise. See Smyth v. Twin State Improvement Corp., 116 Vt. 569, 569, 80 A.2d 664,

665 (1951) (“Even a volunteer or a stranger is liable for an injury negligently inflicted on . . .

another; the law imposes an obligation upon everyone who attempts to do anything for another,

even gratuitously, to exercise some degree of care and skill in the performance of what [the person]

has undertaken[.]”). But defendant privately conducting his own personal investigation, not

communicated to anyone else, would not have increased the risk of harm to Dezirae relative to the

risk she faced in the absence of his private investigation. Nor is there any evidence that defendant

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assumed DCF’s statutory duty to investigate Dezirae’s injuries. And nobody—not Dezirae, not

plaintiffs, not DCF—could have relied on defendant’s uncommunicated undertaking to their

detriment. In order to increase the risk of harm, assume DCF’s duty to investigate, or garner

reliance—in other words, in order to meet § 324A(a)-(c)—defendant must have at least notified

DCF, Dezirae, or her family, through his words or behavior, that he undertook to perform the

investigation plaintiffs allege. His subjective intentions and unilateral actions in a bubble are not

enough. There is no evidence of that communication here.

       Affirmed.

                                                FOR THE COURT:



                                                Associate Justice




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