Torts. Troopers undertook a duty of care when doing a “welfare check.”

Kennery v. State of Vermont, 2011 VT 121 (Dooley, J.) 

 The Restatement (Second) of Torts § 324A (1965) provides:

 One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

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

 (b) he 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.

Plaintiff on behalf of the estate of Gladys Kennery, appeals the granting of a motion for summary judgment on plaintiff’s complaint alleging negligence, gross negligence, and civil rights violations against the State of Vermont, certain Vermont State Troopers and the Vermont Department of Public Safety (VDPS).  Plaintiff’s lawsuit stems from a “welfare check”—that is, a check to determine that a person is safe and secure. Gladys’s daughter had requested that the troopers check on her elderly mother, but the troopers searched the wrong residence.  Meanwhile, Gladys had collapsed in her backyard and was unable to get back up and reach shelter.  Gladys was found the next morning and died twelve days later from hypothermia caused by prolonged exposure to the cold.

The superior court held that the State owed no duty of reasonable care in performing the welfare check. We hold that the trial court erred in granting summary judgment to defendants.  Genuine issues of material fact remain as to whether a duty of care was created under the Restatement (Second) of Torts § 324A based upon the State’s undertaking to perform the welfare check and whether the troopers breached that duty such that the State is liable under the Vermont Tort Claims Act (VTCA).  We also hold that the court erred in dismissing plaintiff’s claim of gross negligence against the  Troopers. Accordingly, we reverse and remand.

The threshold question for both plaintiff’s negligence and gross negligence claims is whether the troopers owed Gladys a duty to perform the welfare check with due care.  We agree with plaintiff that he raised a valid claim that the troopers had a common law duty of care under Restatement (Second) of Torts § 324A and that the undisputed facts do not resolve such a claim against him.  The troopers expressly undertook to render the welfare check services to the daughter (the other); they recognized or should have recognized that the welfare check services were necessary for the protection of Gladys (the third person);  they did not exercise reasonable care to protect their undertaking, and either their failure to exercise reasonable care increased the risk of harm because Gladys remained outside overnight (subsection a) or Gladys’s harm was suffered because Lorraine relied upon their representation that they checked the house and Gladys was not there (subsection c).