Andrew v. State

Annotate this Case
Andrew v. State  (95-301); 165 Vt 252; 682 A.2d 1387

[Opinion Filed 28-Jun-1996)

       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,
  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.

                                 No. 95-301

Florin and Juanita Andrew                         Supreme Court

                                                  On Appeal from
    v.                                            Windham Superior Court

State of Vermont                                  March Term, 1996

Robert Grussing III, J.

       Jesse M. Corum IV of Gale, Corum & Stern, and Thomas W. Costello and
  Joel T. Faxon of Costello & Mabie, Brattleboro, for plaintiffs-appellants

       Jeffrey L. Amestoy, Attorney General, and Timothy B. Tomasi, Assistant
  Attorney General, Montpelier, for defendant-appellee

PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.

       ALLEN, C.J.   In this appeal we consider whether the State is immune
  from a tort suit claiming damages for injuries resulting from an allegedly
  negligent inspection of a private workplace pursuant to the Vermont
  Occupational Safety and Health Act (VOSHA), 21 V.S.A. §§ 201-264.  We
  conclude that the State is immune from the suit because plaintiffs, an
  injured employee and his wife, have failed to show that a private analog
  exists for the State's regulatory enforcement activities.  Accordingly, we
  affirm the superior court's grant of summary judgment in favor of the

       We view the facts as alleged by plaintiffs.  See Peters v. Mindell,
  159 Vt. 424, 426, 620 A.2d 1268, 1269 (1992) (if supported by affidavits or
  other evidence, all allegations made in opposition to summary judgment are
  regarded as true).  On February 26, 1992, Florin Andrew, an employee of
  Fulflex of Vermont, Inc., was injured while working on a calendar machine
  at his workplace.  The calendar machine is designed to flatten raw, hot
  rubber into a wide, thin layer by running it through a series of calendar
  rolls.  Andrew was injured when his arm was


  pulled into an unguarded nip point on one of the rolls.

       Two other employees, one in 1983 and the other in 1989, had been
  injured at the same nip point while working on the same machine.  VOSHA
  inspections took place at Fulflex on December 5, 1984 and July 20-21, 1987. 
  During the latter inspection, the state inspector examined every machine,
  including the calendar machine on which Andrew was injured.  The inspector
  issued two citations for VOSHA violations with respect to that machine, but
  did not issue a citation for the unguarded nip point, a conspicuous hazard
  that violated an OSHA regulation.

       In November 1992, Andrew and his wife filed suit against (1) the
  State, for undertaking and negligently performing the safety inspections;
  (2) the company that modified and assembled the calendar machine, for
  breach of warranty, negligence, and failure to warn of an unreasonably
  dangerous condition; (3) Andrew's employer and his employer's insurer, for
  failing to discover and remedy the machine's safety hazards; and (4) two of
  Andrew's co-workers, for negligence in failing to reduce or eliminate the
  unreasonable risk of harm posed by the machine. By agreement of the
  parties, the claims against all of the defendants except the State were
  dismissed.  The State moved for summary judgment on the ground that the
  suit was barred by the doctrine of sovereign immunity.  The superior court
  granted the motion, rejecting plaintiffs' contention that the State was
  liable under the Restatement (Second) of Torts § 324A (1965) for its
  allegedly negligent inspection of Andrew's workplace.  The court ruled that
  Restatement § 324A was inapplicable because, by conducting regulatory VOSHA
  inspections, the State did not assume Fulflex's duty of providing a safe


       On appeal, plaintiffs argue that there is a genuine issue of material
  fact as to (1) whether the State undertook to render services to Fulflex or
  Andrew by conducting the inspections, and (2) whether Fulflex or Andrew
  relied on that undertaking.  In their reply brief, plaintiffs contend that
  it would be inappropriate for this Court to consider the issue of sovereign
  immunity because


  the superior court did not address that issue.  They request that we remand
  the matter for the superior court to consider the issue in light of our
  recent decision in Sabia v. State, ___ Vt. ___, ___, 669 A.2d 1187, 1197
  (1995), where we found a private analog for the State's statutory duty to
  render assistance in response to particularized and substantiated claims of
  child abuse.


       At the outset, we reject plaintiffs' request that we remand this
  matter for the superior court to determine whether the State has waived
  sovereign immunity.  One of the grounds for the State's request for summary
  judgment was that the State had not waived its immunity under 12 V.S.A. §
  5601(a) because the Good Samaritan Doctrine, as set forth in Restatement §
  324A, does not provide a private analog for VOSHA inspections.  Indeed,
  this was the central issue contested before the superior court, though the
  court did not frame its decision in terms of sovereign immunity.  The
  court's implicit ruling, however, was that the State had not waived
  sovereign immunity and thus was entitled to summary judgment because there
  is no private analog for plaintiffs' claims.  Further, assuming Sabia is
  relevant to this case, we need only review the superior court's ruling in
  light of Sabia rather than remand the matter for the court to reexamine the
  legal issue anew.


       We now turn to the substantive issue at hand.  Under 12 V.S.A. §
  5601(a), the State is liable for injuries caused by the negligent conduct
  of its employees acting within the scope of their employment "under the
  same circumstances, in the same manner and to the same extent as a private
  person would be liable."  Thus, the State retains its immunity "for
  governmental functions for which no private analog exists," LaShay v.
  Department of Social & Rehabilitation Servs., 160 Vt. 60, 68, 625 A.2d 224,
  229 (1993), and waives its immunity only to the extent a plaintiff's cause
  of action is comparable to a recognized cause of action against a private
  entity.  Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 486, 622 A.2d 495,
  498 (1993).

       In Denis Bail Bonds, a corporation engaged in the issuance of bail
  bonds alleged that the


  Vermont Department of Banking and Insurance was liable for its negligence
  in failing to inform the corporation of complaints of wrongdoing that had
  been filed against the corporation's agent. To determine if the negligence
  claim had a legitimate private analog, we considered whether the statute
  governing the Department's supervision of insurance carriers created a duty
  requiring the Department to notify the corporation of the complaints.  Id.
  at 488-89, 622 A.2d  at 499-500. After noting that the existence of a duty
  is primarily a question of law involving policy considerations, id. at 487,
  622 A.2d  at 499, we concluded that the State owed no duty to the
  corporation because the statutory scheme set forth to regulate insurance
  companies was for the protection of the public in general and did not
  create a duty toward the bail bond corporation. Id. at 488-89, 622 A.2d  at

       In Sabia, we considered whether variants of the Good Samaritan
  doctrine found in related Restatement sections served as a private analog
  to the plaintiffs' allegation that SRS failed to render assistance to them,
  as mandated by statute, after receiving substantiated complaints that they
  had been sexually abused.  We concluded that (1) the relevant statute
  imposed a mandatory duty on SRS to investigate claims of abuse and to
  provide substantive assistance to those whose claims of abuse were
  substantiated, and (2) the statutory duty was comparable to the duty
  imposed by the Good Samaritan doctrine.  Sabia, ___ Vt. at ___, 669 A.2d  at

       Here, plaintiffs contend that VOSHA's authorization of state
  inspections of private workplaces creates a duty that is analogous to the
  duty imposed upon private parties under Restatement § 324A, which provides
  as follows:

     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.


  Section 324A requires not only a threshold showing that there was an
  undertaking to render services for another to protect a third party, but
  also a showing that the undertaking increased the risk of harm, or the
  party undertaking to perform services has assumed the other's duty to the
  third party or caused the third party to rely on the undertaking.

       In support of their argument that Restatement § 324A creates a private
  analog for their claim against the State, plaintiffs assert that the State
  may be liable for injuries caused by negligent VOSHA inspections, just as a
  private workers' compensation insurer may be liable for its failure to
  inspect, or negligent inspection of, its insured's workplace.  See Derosia
  v. Liberty Mut. Ins. Co., 155 Vt. 178, 183-87, 583 A.2d 881, 883-86 (1990)
  (private insurance carrier may be liable under § 324A for failure to
  inspect employer's workplace if insurer undertook to render specific
  service necessary for protection of employees and thereby induced reliance
  or insurer's lack of reasonable care increased risk of harm).  We reject
  this comparison, and conclude that, as a matter of law under the facts and
  circumstances of this case, VOSHA's regulatory enforcement scheme is not an
  undertaking of services to employers or their workers, and thus does not
  create a duty that establishes a private analog under Restatement § 324A.

       We first examine the VOSHA statutory scheme.  The policy behind the
  statute is that "all persons shall be provided by their employers with safe
  and healthful working conditions at their work place."  21 V.S.A. § 201(a)
  (emphasis added).  To further that policy goal, the Department of Labor and
  Industry is given the regulatory task of administering and enforcing VOSHA
  provisions.  Id. § 201(c).  Nothing in the statute, however, "is intended
  to relieve the employer of [its] general responsibility of obtaining
  employee compliance with the Act's requirements."  Green Mountain Power
  Corp. v. Commissioner of Labor & Indus., 136 Vt. 15, 28, 383 A.2d 1046,
  1053 (1978).  Indeed, the statute explicitly mandates that each "employer"
  (1) "shall" provide a workplace free from recognized hazards, and (2)
  "shall" comply with all


  of the safety and health standards promulgated under the VOSHA Code.  21
  V.S.A. § 223.

       Under the statute, the Commissioner of Labor and Industry, the
  Director of Occupational Health, or their agents "may" enter private
  business premises at reasonable times without warning and conduct
  reasonable inspections to determine whether there has been compliance with
  the VOSHA Code.  Id. § 206(a).  In conjunction with a VOSHA inspection, the
  Commissioner or Director may require the employer or other witnesses to
  testify or produce evidence.  Id. § 206(b).  If, upon an inspection or
  investigation, the Commissioner, the Director, or an agent of either of
  them finds that an employer has violated the VOSHA Code, a citation must be
  issued with reasonable promptness.  Id. § 225(a).  Further, whenever the
  Commissioner finds that a VOSHA Code violation creates a dangerous
  condition that could reasonably be expected to cause death or serious
  physical harm, the Commissioner "may" order the workplace to be closed down
  or take other steps to correct or remove the imminent danger.  Id. §
  208(a). The Occupational Safety and Health Review Board reviews the
  issuance of citations and imposes civil penalties for violations of the
  VOSHA Code.  Id. § 210.  A person aggrieved by an order or action of the
  Commissioner or the Board may appeal the order or action to the superior
  court. Id. §§ 209, 227.

       In sum, under the statute, the employer retains primary responsibility
  for ensuring the safety of the workplace.  In contrast, the State is given
  a regulatory enforcement role; its relationship with the employer is often
  adversarial.  When the State inspects private businesses, it does so to
  police the employer's compliance with the law and to punish those employers
  that have not complied with the law, not to render services to the employer
  by assuming the employer's duty toward its employees.

       Unlike the situation involving a workplace inspection performed by a
  private workers' compensation insurer, a state VOSHA inspection does not
  involve a consensual or contractual relationship between the inspector and
  the employer.  In Derosia, the insurer that inspected its insured's
  workplace was subject to liability under Restatement § 324A because it had


  assumed the duty of ensuring the safety of the workplace.  See Derosia, 155
  Vt. at 187, 583 A.2d  at 886 (employer lacked safety expertise and insurer
  offered to fill that gap).  In contrast, the relationship between the State
  and the employer, as defined in VOSHA, refutes any suggestion that the
  State has undertaken the employer's duty to provide a safe workplace.  See
  Mercer v. United States, 460 F. Supp. 329, 332 (S.D. Ohio 1978) (statutory
  inspection responsibilities imposed on government to police employer's
  compliance with safety regulations are "altogether different" from when
  private entity contracts with another to perform inspections to ensure
  safety of workplace).  Like the statute in Denis Bail Bonds, VOSHA is a
  regulatory enforcement act aimed at protecting the safety and health of the
  public in general, not an undertaking of the employer's duty to its
  employees.  See Shelton v. Industrial Comm'n, 367 N.E.2d 51, 54 (Ohio Ct.
  App. 1976) (statutes mandating inspection and enforcement of safety
  statutes are for benefit of general public and do not create duty toward
  any particular person); cf. Corbin v. Buchanan, 163 Vt. 141, 143-47, 657 A.2d 170, 172-74 (1994) (state statutes and city ordinances requiring
  inspection of buildings for safety code violations are aimed at general
  public and do not create private right of action against municipality).

       A majority of federal courts have determined that inspection duties
  imposed by regulatory enforcement statutes like OSHA and the Mine Safety
  and Health Act (MSHA) do not create an actionable duty owed by the United
  States under the Federal Tort Claims Act, upon which the Vermont Tort
  Claims Act is modeled.  See Carroll v. United States, 488 F. Supp. 757, 759
  (D. Idaho 1980) (majority of courts have concluded that federal regulatory
  enforcement activities do not give rise to actionable tort duty under
  FTCA).  Many courts that have considered an alleged private analog
  comparing the government's statutory authorization to inspect workplaces
  with the Good Samaritan doctrine as set forth in Restatement § 324A have
  held that § 324A's threshold requirement is not met because the government
  has not undertaken to provide services to the employer.  See, e.g., 
  Roberson v. United States, 382 F.2d 714, 721 (9th Cir. 1967) (in conducting
  its safety inspection program, government was not undertaking to render
  services to


  contractor; government's safety inspection activities were designed to
  ensure that contractor performed its duties, not to relieve contractor of
  those duties); Taylor v. United States, 521 F. Supp. 185, 188-89 (W.D. Ky.
  1981) (MSHA provisions requiring safety inspections of mines do not create
  duty analogous to undertaking to render services as contemplated by § 324A;
  under express language of MSHA, primary and ultimate obligation of
  compliance with safety regulations rests with mine operator); Mercer, 460 F. Supp.  at 332 (statutory governmental inspection of mine to regulate
  employer's compliance with safety regulations is not service rendered to
  mine operator).

       Moreover, the majority of those courts that have presumed an
  undertaking of services and examined the three subcomponents of Restatement
  § 324A have nonetheless concluded that the government is generally not
  liable for its undertaking of safety inspections pursuant to a regulatory
  enforcement statute.  See Myers v. United States, 17 F.3d 890, 902-04 (6th
  Cir. 1994) (no liability for alleged negligent MSHA inspection); Howell v.
  United States, 932 F.2d 915, 918-19 (11th Cir. 1991) (no liability for
  alleged negligent Federal Aviation Administration inspection).  These
  courts have imposed strict tests for determining whether the undertaking
  increased the risk of harm, whether the government assumed another's duty
  toward a third party, and whether the third party relied to its detriment
  on the undertaking.  See Myers, 17 F.3d  at 903 (risk of harm must be
  increased over what it would have been had there been no undertaking, not
  what it would have been had person engaged in undertaking not been
  negligent; government cannot be held liable for assuming employer's duty to
  its employees because MSHA makes clear that "primary duty" of ensuring
  miners' safety remains with mine operator; general allegation that
  employers and employees rely on MSHA inspections is insufficient to show
  particularized and justifiable detrimental reliance on inspections);
  Howell, 932 F.2d  at 919 (because inspection duties under FAA "supplement
  rather than supplant" private airline's duties, government does not assume
  airline's duties); Blessing v. United States, 447 F. Supp. 1160, 1193-96
  (E.D. Pa. 1978) (through OSHA, government supplements rather than supplants


  employer's duty to provide safe workplace; therefore, as matter of law,
  plaintiffs may not premise government's liability on § 324A(b) theory that
  OSHA inspectors assumed employer's duties); cf. Mercer, 460 F. Supp.  at 332
  (federal inspector assumes no duty to maintain compliance with safety
  standards "upon which either the mine operators or their employees can

       For the reasons discussed above, § 324A's threshold requirement that
  there be an undertaking of services is not met here, as a matter of law. 
  As noted, the State is not undertaking a service for the employer or its
  employees, but rather is policing the employer's compliance with the law. 
  To be sure, 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.

       In reality, plaintiffs' cause of action amounts to a claim of
  negligent enforcement of safety standards under a regulatory statute. 
  There is no private analog for such an action.  We will not allow the Tort
  Claims Act to be used to visit the government with "`novel and
  unprecedented liabilities.'"  Denis, 159 Vt. at 486, 622 A.2d  at 498
  (quoting Feres v. United States, 340 U.S. 135, 142 (1950)).


                         FOR THE COURT:

                         Chief Justice