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Courtesy of Lorraine Kennery

The driveway to the home of Gladys Kennery. The red “X” marks the spot where she fell.

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A case for negligence

Family of Marlboro woman who fell in her driveway will have their day in court

MARLBORO—The family of an elderly Marlboro woman who died of hypothermia in 2007 will have their day in court.

The family of Gladys Kennery may now have a jury trial in a civil action against Vermont State Troopers Travis Valcourt and Francis LaBombard III, after they assured Kennery’s daughter, Lorraine Kennery, that they would check on her mother, and then checked the wrong house.According to court documents in the Vermont Supreme Court decision last week that overturned a superior court dismissal of the lawsuit, Gladys Kennery died in March 2007 after falling outside her Auger Hole Road home.

The next morning, a mail carrier found Kennery, who died 12 days later of hypothermia.

The Vermont Supreme Court overruled the dismissal of the family’s case against the Department of Safety last week, saying that the Windham Superior Court’s decision “erred in granting summary judgment” and “erred in dismissing plaintiff’s claim of gross negligence against Troopers Valcourt and LaBombard.”

The Supreme Court also remanded the case for “further proceedings,” meaning the case will go to a jury trial.

Attorney General William Sorrell has expressed concerns the higher court’s ruling has opened the gates for more cases against state employees.

But lawyers for the woman’s family disagree that the case has “widened the scope” of liability for the state.

According to court documents, Vermont law says that lawsuits sparked by the actions of state employees come against the state, not the individual employees.

The Supreme Court, however, clarified in its ruling that not all actions undertaken by state employees receive immunity.

A cold day in March

Lorraine Kennery, who lives in White Plains, N.Y., contacted the State Police in 2007 after her 85-year-old mother, Gladys, failed to call to say she’d returned safely from a doctor’s appointment.

According to documents from Lorraine Kennery to her lawyers, Gladys Kennery’s level of health had prompted her to develop a check-in system with her daughter, and to contact a medical alert company.

Lorraine Kennery described the ordeal that led to her mother’s death in a 2007 letter to The Commons.

“Seriously crippled with osteoporosis and scoliosis, Mom walked very slowly and with a cane,” wrote Lorraine Kennery. “She also had a pacemaker. That night, she slipped on a snowy patch of ground around 6 p.m., and never again made it to her feet.”

Last week’s ruling described facts of the case that were not in dispute:

“Troopers Valcourt and LaBombard received the welfare check assignment and at about 10:20 p.m. called Lorraine, speaking with her for five to ten minutes. Lorraine gave Trooper Valcourt the address of Gladys’s house at 3902 Augur Hole Road and informed him that Gladys had previously fallen entering her house.

“The troopers proceeded in cars. Trooper LaBombard allegedly knew that number 3902, an even-numbered home, should be on the right side of the road as he approached from Route 9 based on the common numbering practice.

“However, upon seeing a mailbox on the left side of the road with Gladys’s house number on it, he pulled into the driveway adjacent to the mailbox, and Trooper Valcourt followed him.

“They proceeded to search the house directly across the road from Gladys’s house. The troopers knocked on the door, walked completely around the house, and checked the garage. They found no one.”

The troopers put out a “be on the lookout” bulletin for Gladys Kennery and requested that the Brattleboro Police Department search the Brattleboro Memorial Hospital parking lot for her car, court records state.

Valcourt also called Brattleboro Memorial Hospital and Grace Cottage Hospital to inquire whether Gladys had been admitted, and he left a message for the VDPS day shift supervisor requesting that the welfare check remain open for follow-up by the next shift.

According to Lorraine Kennery’s letter, “over the course of the night, she dragged herself the 30 or so yards to the back door, finally getting the door opened and falling across the threshold around 3:30 a.m. And that is how she was found around 9:30, when Warren Bartlett arrived with the mail.”

Lorraine Kennery wrote that when the ambulance arrived, her mother’s body temperature read 87 degrees and she had frostbite in both feet.

A hospital-administrated blood test showed Gladys Kennery also suffered a heart attack sometime during the night.

According to her daughter, despite the heart attack, Gladys Kennery’s death certificate listed hypothermia as cause of death.

“My frustration with the State Police stems primarily from their failure to do anything for the first 4½ hours after I called,” wrote Lorraine Kennery, adding that the State Police assured her “twice” that they would go to her mother’s house.

“I trusted them, and they failed in their sworn duty,” she continued. “It only compounds my frustration that when they finally did decide to ‘follow up’ on the call, they were so inept as to go to the wrong house.”

Lorraine Kennery asserted that if the troopers had responded promptly and correctly to her call, her mother would have survived.

“It is as simple and as appalling as that,” she said.

More liability for the state?

Assistant Attorney General Megan Shafritz, chief of the office’s civil division, said the decision of the Vermont Supreme Court (VSC) to reverse the lower court’s ruling could open the state to more liability and possibly alter how police or fire departments carry out their duties.

From the state’s perspective, said Shafritz, the death of Gladys Kennery was “an unfortunate incident."

The Tort Claims Act provides that claims of negligence based on state employee actions be levied against the state, not individual employees, said Shafritz.

Claims of gross negligence, where a person shows little care or regard for another’s welfare, however, could go against an individual employee, she said, and that’s been the precedent.

Shafritz said the “essence” of Attorney General Sorrell’s recent remarks in the press boiled down to the Kennery case opening the state to a “broader scope” of possible liability based on employee actions than previously understood.

The ruling could also open the police and other emergency departments to a “wider scope” of liability in performing their job duties, Shafritz explained.

The Supreme Court’s decision held that in the Kennery case, the state, and the Vermont State Police, and the individual troopers have an implicit responsibility regarding calls of help.

“[This wasn’t] understood to be the case before,” Shafritz said.

Nothing new but the old clarified

The lawyers representing the Kennery family dispute the attorney general’s claims that the recent decision widens the scope of liability for state.

“[The ruling does] not widely increase the state’s liability,” said attorney James A. Valente. Last week’s ruling just clarifies that “they were always liable.”

Valente and Brattleboro attorney Thomas Costello, P.C. have worked on the Kennery case for two years.

“All the Vermont Supreme Court said is we can go before a jury,” said Valente. “We could still lose this case.”

The case of Gladys Kennery’s death involves an “unusual section of the law” that says if an offer of help fails, and lands the victim in a “worse position,” the helper is liable for negligence, said Valente.

The Supreme Court stated in its decision that if a private citizen can be sued under this section of law, so can a public employee.

This apples-to-apples liability means the case warrants being tried before a jury, said Valente.

According to Valente, prior to last week’s ruling, previous court decisions created the presumption that people can sue public employees if a statute had “created a duty of care.”

In the case of the police, this precedent stems from the fact that protecting the public from harm is part of their job.

According to last week’s court ruling, “the superior court held that the State owed no duty of reasonable care in performing the welfare check, thereby defeating plaintiff’s claims.”

In overturning that Superior Court decision, the State Supreme Court now also allows a suit if a precedent of duty of care has been created under Common Law.

Under Common Law, if one causes harm to another, a court can find the harmer liable even if no specific statute outlines a specific duty or area of care, or a specific course of action, said Valente.

Costello characterized Lorraine Kennery as “devoted to her mother,” who wanted to live in Marlboro, even though her children lived away.

According to Valente, Lorraine Kennery asked troopers if they could perform a “welfare check.”

Once the troopers agreed to the check, they took responsibility for Gladys Kennery’s welfare, said Valente.

Lorraine Kennery also gave directions to the Augur Hole Road house to central dispatch and to Troopers Valcourt and LaBombard.

“She had no reason to expect they’d go to the wrong house,” said Valente.

When the troopers incorrectly told Lorraine Kennery her mother wasn’t home, the misinformation “deprived her of the ability to rescue Gladys [Kennery]” by making other calls or driving to her mother’s house.

Checking the wrong house and delivering incorrect information to Lorraine Kennery, leaves them liable for Gladys Kennery’s death, Valente said.

Historically in Vermont, however, two state supreme court cases act as the touchstone when considering negligence suits against state employees.

According to Valente, the first case, Sabia v. State in 1995, stated that public employees can be held liable for negligence when they don’t follow state statute.

The case, he said, involved a state employee failing to follow up on reports of sexual assault against a child.

In Sabia, the VSC ruled that if the statute “was on the books,” the employee would be liable for negligence.

The statute predated the sexual assault, he said, making the Sabia case “legally black and white.”

The case of Kane v. Lamothe in 2007 seemed to narrow the scope of a public employee’s liability in claims of negligence, he said.

That case, according to Valente, implies that statutes create a “duty of care” for state employees. Without a statute, like laws mandating the reporting of child abuse, public employees cannot be held liable.

In Kane, a Burlington officer responded to a domestic assault call. Upon arrival, he interviewed the woman, who showed signs of fresh physical violence, in the presence of her boyfriend. The woman told the officer everything was okay. After the officer left, the boyfriend’s violence escalated.

In the suit, the woman said the officer could have done more to protect her. The Supreme Court ruled against the plaintiff.

Traditionally, Kane v. Lamothe provides public employees immunity from the outcomes of their decisions, providing those decisions resulted from the employees weighing “public policy concerns,” said Valente.

Valente used a hypothetical example of a police officer who receives simultaneous calls for assistance: one from a homeowner reporting an intruder with a knife, and the other reporting someone speeding through downtown.

Weighing public concerns, the officer decides the knife-wielding intruder poses the more immediate threat. The “intruder” turns out to be the homeowner’s grandmother making toast.

Meanwhile, said Valente, the speeder flattens a pedestrian. In this description, under Kane the officer would have immunity from a charge of negligence.

The big difference

According to Costello, Windham Superior Court Judge John Wesley, who ruled to dismiss the Kennery case, did so based on precedent set in Kane v. Lamonthe.

But the Kennery case differs from Kane v. Lamonthe in a big way, Costello said.

Troopers Valcourt and LaBombard engaged in “no weighing of public policy concerns” when they agreed to do the welfare check on Gladys Kennery.

Deciding to drive to her Marlboro home is the only “real, substantive decision” the troopers made, said Costello.

To reach Gladys Kennery’s home, the troopers only needed to follow Lorraine Kennery’s directions, he said.

“They had no decision to make,” Costello said.

The consequences of “ministerial” decisions or actions, like driving from point A to point B, do not receive immunity, said Costello.

The theory behind negligence reaches back to the 1800s, when a ship owner assured a captain that he’d purchased insurance for the vessel, said Valente.

The owner hadn’t. The ship sank. The captain, who would have bought insurance had the owner told the truth, landed in a worse position as a result.

The federal government in the 1950s also applied liability to federal employees, said Valente.

Valente feels that the implication in recent press coverage that the VSC’s decision to allow the Kennery case a jury trial as “cutting edge” is “off.”

Valente said it appears that many negligence cases fall against the police. But, he said, the police respond to life-and-death calls. Life and death “is what it takes to push a lawsuit that far [to the VSC].”

As a community, Costello said, citizens want to protect the police, allowing them the discretion to carry out their duties without fear of a jury peering over their shoulders.

But, at the same time, he said, they also want to protect the taxpayers by managing the number of suits and capping claim amounts brought against the state.

Finally, said Costello, a community needs to ensure that if someone causes another harm, that he or she is held personally liable.

Valente does not agree with Sorrell’s implication that last week’s decision will increase the number of lawsuits against police.

Few negligence cases are logged now, he said, which “shows they [police] do a good job.”

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Editor’s note: Our terms of service require you to use your real names. We will remove anonymous or pseudonymous comments that come to our attention. We rely on our readers’ personal integrity to stand behind what they say; please do not write anything to someone that you wouldn’t say to his or her face without your needing to wear a ski mask while saying it. Thanks for doing your part to make your responses forceful, thoughtful, provocative, and civil. We also consider your comments for the letters column in the print newspaper.

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Photo 2

Courtesy of Lorraine Kennery

Lorraine Kennery, left, and her mother Gladys M. Kennery, who died in March 2007.

Originally published in The Commons issue #129 (Wednesday, November 30, 2011).

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