High Court: Vermont Troopers Could be Liable in Woman’s Death
Two Vermont State Police troopers who botched a request to check on the condition of an elderly Marlboro woman in 2007 can be held liable for her subsequent death from hypothermia, the Vermont Supreme Court determined in a 5-0 ruling Wednesday.
Justices reversed a decision to dismiss the case by a lower-court judge.
“The troopers had a common law duty of care,” the high court ruled. “A reasonable trier of fact could conclude they did not exercise due care in performing the welfare check.”
The justices also said that the state troopers, Travis Valcourt and Francis LaBombard III, are not protected from being sued under the doctrine of sovereign immunity covering state employees because their actions were not discretionary, or outside their normal duties. The case was sent back to Windham Superior Court for trial
Brattleboro lawyer Thomas Costello, who represented the dead woman’s estate, said the ruling means police will be held more accountable for their conduct going forward.
“It’s a magnificent decision,” Costello said. “This is going to make a difference in the way law enforcement conducts itself. What the court is saying is they are not above the law.”
Attorney General William Sorrell said the ruling will cost taxpayers money over time, because the state as a self-insured entity will need to set aside more dollars for cases where the ruling is used to trump sovereign immunity, a legal doctrine that nearly always exempts state workers from legal liability for their actions.
“This opens the door on the state’s part for more liability going forward,” Sorrell said. “It means if you sue the state and have evidence that’s compelling enough to meet the standard set for a jury or fact-finder, there is more liability than there has been to date, and that means more of the taxpayers’ money might be awarded to plaintiffs.”
The case before the Supreme Court sprang from a phone call the troopers received March 15, 2007, asking them to check the home of Gladys Kennery on Augur Hole Road in Marlboro to make sure she had made it home safely from a doctor’s appointment.
The request was called in by Kennery’s daughter, Lorraine Kennery of White Plains, N.Y. She told police she was worried that her mother had not called to say she was back home, as the two had agreed she would, according to court documents.
Lorraine Kennery also told police she was concerned because her mother had fallen on a path near her home earlier that winter. The daughter provided police with detailed information about the location of the home, including the fact that Gladys Kennery’s home was across the road from her numbered mailbox.
Valcourt and LaBombard drove to Augur Hole Road but checked the wrong house, the Supreme Court stated in its ruling, describing what happened.
“Upon seeing a mailbox on the left side of the road with Gladys’ house number on it, (LaBombard) pulled into the driveway directly across the road from Gladys’s house,” the ruling stated. “The troopers knocked on the door, walked completely around and checked the garage. They found no one.”
Lorraine Kennery was then informed by police that her mother wasn’t home. Lorraine Kennery began calling hospitals, thinking her mother must have been in an accident, stated the opinion, written by Associate Justice John Dooley. A postal worker found Gladys Kennery lying on the back porch of her home the next day.
She died of hypothermia 12 days later at Brattleboro Memorial Hospital.
In 2008, the estate of Gladys Kennery sued the two troopers, along with other “unknown members of the Department of Public Safety,” accusing them of negligence and gross negligence.
The state asked the lower court to throw out the case, citing sovereign immunity and arguing the troopers could not be held liable for any mistakes occurring within the scope of their employment.
Judge John Wesley, ruling Oct. 26, 2010, agreed with the state and dismissed the case.
“It cannot reasonably be said that the troopers were made aware of a grave danger and then willfully disregarded that risk,” Wesley’s ruling stated in part. “The troopers were made aware only of the possibility of Gladys’s peril.”
The Kennery estate appealed Wesley’s ruling to the Vermont Supreme Court. Wednesday’s opinion was signed by Dooley and associate justices Denise Johnson and Marilyn Skoglund, along with Judges Helen Toor and Robert Bent, who were filling in for Chief Justice Paul Reiber and Associate Justice Brian Burgess.
Toor and Bent signed off with the justices on most of the ruling, dissenting only on the question of whether the actions of two troopers qualified as gross negligence.
Written by Sam Hemingway at 660-1850 or[email protected]. Follow Sam on Twitter atwww.twitter.com/SamuelHemingway.