Willis S. Sheldon, Individually and as Administrator of the Estate of Dezirae Sheldon v. Nicholas Ruggiero

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
14
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
15