SCOVT affirms summary judgment dismissing tort claim against state on grounds of discretionary function..

Ingerson v. Pallito, 2019 VT 40 [filed 6/7/2019]

EATON, J. Plaintiff-appellant, James Ingerson, sued the Department of Corrections (DOC) for negligence in investigating allegations that plaintiff was being sexually exploited by a DOC employee while he was an inmate at a DOC correctional facility. The trial court granted summary judgment to the State, holding that plaintiff’s claim was barred by the discretionary function exception to the Vermont Tort Claims Act (VTCA), 12 V.S.A. § 5601(e)(1). Plaintiff appealed the summary judgment ruling to this Court. We affirm

On appeal, plaintiff primarily argues that the discretionary function exception does not apply to DOC’s investigation because DOC failed to establish procedures for investigating allegations of sexual misconduct pursuant to its sexual harassment policy, Policy 126. Plaintiff further argues that even if the discretionary function exception does apply, DOC waived its sovereign immunity

1. The Discretionary Function Exception Applies to DOC’s Investigation

This Court has adopted the two-part test outlined in United States v. Gaubert, 499 U.S. 315, 322-25 (1991), to evaluate whether a State’s act or omission qualifies as a discretionary function. Searles, 171 Vt. at 563-64, 762 A.2d at 813-14. Under the first prong of the test, the court must determine whether a statute, regulation, or policy mandates certain acts, or whether performance of a duty involves an element of judgment or choice. The second prong of the test directs the court to determine “whether that judgment is of the kind that the discretionary function exception was designed to shield”—policy-related judgments. Id. (quotation omitted).

In this case, DOC exercised its discretion when it investigated the allegations of sexual exploitation at issue without definitive ministerial standards. We conclude that this scenario satisfies both prongs of the discretionary function exception to the 10 VTCA and that sovereign immunity applied to DOC’s actions. The trial court appropriately granted summary judgment to the State.

2 DOC Did Not Waive Sovereign Immunity . . .

Ultimately, DOC exercised judgment regarding matters of public policy when investigating the allegations against Salls without the benefit of ministerial guidelines. Because DOC’s investigation satisfies both prongs of the discretionary-function-exception test, and we are not persuaded by plaintiff’s arguments that DOC waived this protection, sovereign immunity applies. We affirm the court’s grant of summary judgment in favor of the State