Tina Stocker v. State of Vermont

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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

2021 VT 71

No. 2020-081

Tina Stocker, et al. Supreme Court

On Appeal from
v. Superior Court, Windsor Unit,
Civil Division

State of Vermont, et al. October Term, 2020

Robert P. Gerety, Jr., J.

Sharon J. Gentry of Costello, Valente & Gentry, P.C., Brattleboro, for Plaintiffs-Appellants.

Thomas J. Donovan, Jr., Attorney General, and David Groff, Assistant Attorney General,
Montpelier, for Defendant-Appellee State.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen,1 JJ.

¶ 1. ROBINSON, J. Plaintiffs challenge the trial court’s decision granting judgment

as a matter of law to the State. They argue that the court erred in narrowing the scope of the

Vermont Department for Children and Families’ (DCF) legally actionable duty and in concluding

that no reasonable jury could find that DCF’s actions were the proximate cause of then-children

B.H. and W.H.’s injuries. They also argue that the discretionary function exception to the State’s

tort liability does not bar their claim and that the trial court improperly considered factors other

than the law and evidence in granting the State judgment as a matter of law. We affirm.

¶ 2. Plaintiffs are W.H. and B.H., who were abused as children, and their grandparents.

They brought this tort action for damages in 2014, arguing that DCF failed to accept or respond to

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Justice Cohen was present for oral argument, but did not participate in this decision.
dozens of reports of physical and sexual abuse of the children between 2008 and 2012. Among

other things, plaintiffs made claims of negligence based on DCF’s failure to perform its statutory

obligations and negligent undertaking.

¶ 3. The State moved for summary judgment on all counts, arguing in part that the State

did not breach any duty owed to plaintiffs, that the State was entitled to sovereign immunity

because its actions were discretionary and grounded in public policy, and that plaintiffs could not

prove causation. In June 2019, the trial court denied DCF’s motion for summary judgment, and

the case proceeded to trial.

¶ 4. The trial court held a two-week jury trial in January 2020. The final day of trial

took place on a Friday during a snowstorm that resulted in the closure of all Vermont courts. After

the close of the evidence, the trial court granted the State’s motion for judgment as a matter of law

on the record. Specifically, the court ruled that even if the jury accepted all plaintiffs’ evidence as

true and made all reasonable inferences in favor of plaintiff, “the jury could not find the presence

of proximate causation.” It determined that the jury would have to speculate as to “what actions

[DCF] would have taken had they acted on reports of maltreatment of the children that were made

and not acted upon” as well as “what it is that would have happened had DCF received that report

and acted on it.” Further, the court said that “the finding of proximate causation would depend

upon a determination by the jury as to what [DCF] would have done when acting in its discretion

on matters that do implicate policy.” The court concluded that “in order to find proximate cause,

the jury would inevitably be forced to assess whether or not DCF exercised discretionary acts

correctly or not correctly in matters involving assessments about the policy of the State of Vermont

regarding child welfare,” and thus there was not a showing of proximate cause.

¶ 5. The court subsequently issued an order to fully articulate the basis for its decision.

First, it noted that the State was immune from liability for carelessness or negligence in carrying

out discretionary functions. Second, it recognized that the Legislature had expressly provided that

2
neither § 4915a nor § 4915b should be deemed to create a private right of action. See 33 V.S.A.

§ 4915b(b). The court thus determined:

Only where DCF’s conduct involves non-discretionary activity not
involving policy considerations, and only where DCF’s alleged
negligent conduct was not taken pursuant to its authority and
obligations set forth at 33 V.S.A. § 4915a and § 4915b is it
permissible under the law for an injured child to seek damages from
DCF for injuries suffered at the hands of an abusive parent or
caregiver.

Plaintiffs’ only viable legal theory, the court concluded, was that DCF owed plaintiffs a duty to

“receive, record, and evaluate reports of abuse under 33 V.S.A. § 4915.” Specifically, it found

that the only actionable duty of care was that upon receipt of a report of abuse or neglect, DCF

must promptly determine whether a report constitutes an allegation of abuse or neglect as defined

in 33 V.S.A. § 4912(1); otherwise, the requirements of § 4915 are not actionable because they

involve discretionary functions protected by sovereign immunity.

¶ 6. The court reiterated that in order to find proximate cause, “the jury would

necessarily be compelled to engage in speculation about how DCF would have exercised its

discretion in response to the reports and what action, if any, DCF would have taken under the

guidelines of 33 V.S.A. [§§] 4915a and 4915b.”

¶ 7. As to plaintiffs’ negligent-undertaking theory, the court concluded that the

evidence could not support a finding that DCF “undertook to a third person that it would take

actions different from, and in addition to, actions within its authority to assess, investigate, and

take steps to protect children from harm under the applicable Vermont statutes” or that plaintiffs

relied on such an undertaking.

¶ 8. On appeal, plaintiffs argue that the trial court erred in concluding that a reasonable

jury could not find DCF breached an actionable duty to protect the children and that a reasonable

jury could not find DCF’s actions were the proximate cause of the children’s injuries. In particular,

plaintiffs argue that DCF is liable for negligence and negligent undertaking based on their failures

to record, respond, and investigate allegations of abuse. They also argue that their claims are not
3
barred by the discretionary function exception, and that the trial court improperly considered

factors other than the law and evidence in granting judgment as a matter of law.

¶ 9. The court may enter judgment as a matter of law against a party “at any time before

submission of the case to the jury,” V.R.C.P. 50(a)(2), if a claim cannot be maintained under

controlling law, V.R.C.P. 50(a)(1); see also Gero v. J.W.J. Realty, 171 Vt. 57, 59, 757 A.2d 475,

476 (2000). Judgment as a matter of law may be granted where “there is no legally sufficient

evidentiary basis for a reasonable jury to find for [the nonmoving] party.” V.R.C.P. 50(a)(1). “In

reviewing the trial court’s grant of judgment as a matter of law, we review the evidence in the light

most favorable to plaintiff—the nonmoving party—and exclude any modifying evidence.” Buxton

v. Springfield Lodge No. 679, Loyal Order of Moose, Inc., 2014 VT 52, ¶ 17, 196 Vt. 486, 99

A.3d 171. “If plaintiff fails to present evidence on an essential element of the case . . . judgment

should be granted for defendant.” Id. In other words, for purposes of evaluating plaintiffs’ claims

on appeal, we assume that the evidence plaintiffs presented is true and disregard contrary evidence

presented by the State; the question before us is whether this evidence is sufficient to prove

plaintiffs’ claims. We review the court’s decision granting judgment as a matter of law without

deference. Roy v. Woodstock Cmty. Tr., Inc., 2013 VT 100A, ¶ 58, 195 Vt. 427, 94 A.3d 530.

¶ 10. Plaintiffs advance two theories of liability against the State. First, DCF breached a

common-law duty to plaintiffs by failing to meet its statutory obligations under 33 V.S.A. §§ 4911-

4915. Second, plaintiffs contend that DCF undertook to protect W.H. and B.H. from abuse and

was negligent in carrying out its undertaking. We conclude that plaintiffs’ claims based on DCF’s

alleged violation of duties arising from statutes are limited to claims based on DCF’s obligation to

receive reports of abuse and promptly determine whether they constitute abuse under § 4915(a),

and that in the particular circumstances of this case, plaintiffs cannot establish proximate cause

between the failures reflected in the record and plaintiffs’ injuries. With respect to plaintiffs’

alternate theory, we conclude that plaintiffs failed to establish the threshold requirements to

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succeed on a theory of negligent undertaking. We consider each theory of liability in more detail

below.

I. Common-Law Claim Arising from Statute

¶ 11. Plaintiffs’ negligence claim against DCF is based on DCF’s alleged breach of a

duty of care set forth in statute. Essentially, plaintiffs argue that DCF is liable to them for damages

arising from DCF’s violating its statutory obligations under 33 V.S.A. §§ 4911-4915, and that the

trial court erred in narrowing DCF’s statutory duty, which it characterized as to “receive, record,

and evaluate reports of abuse” under § 4915. Drawing on our decision in Sabia v. State, plaintiffs

highlight the language in § 4915 providing that DCF “shall” promptly respond to reports of abuse

or neglect, “shall” begin an assessment or investigation within seventy-two hours, and “shall”

report to and seek assistance from law enforcement in cases involving allegations of child sex

abuse. See 164 Vt. 293, 669 A.2d 1187 (1995). Plaintiffs contend that there was substantial

evidence that DCF ignored reports of alleged abuse altogether and failed to assess or investigate

valid reports of abuse.

¶ 12. In analyzing plaintiffs’ claims based on DCF’s alleged failure to satisfy its statutory

duty, we draw on three related but distinct considerations: (A) the extent to which DCF may be

liable to plaintiffs for its failure to meet its statutory obligations, (B) the limitation on the State’s

waiver of sovereign immunity for certain discretionary acts, and (C) the requirement that plaintiffs

prove a causal relationship between the State’s alleged breach of its statutory duties and their

injury. As set forth more fully below, we agree with the trial court that DCF’s potential liability

for damages under this theory is limited to injury resulting from its violations of § 4915(a) and

does not extend to conduct involved in an assessment or investigation, or to discretionary decisions

made thereafter. And, accepting plaintiffs’ allegations that DCF ignored particular reports of

alleged abuse in this case, we conclude that no reasonable jury could find that DCF’s conduct was

a proximate cause of W.H. and B.H.’s injuries.

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 A. The Scope of DCF’s Potential Liability for Breaching Its Statutory Duties

¶ 13. Plaintiff’s statute-based claim rests on a limited exception to the general common-

law rule that for purposes of tort liability, a person has no duty to control the conduct of a third

person to prevent harm to another. We have long recognized an exception for some duties created

by statute, most notably in the case of Sabia and its progeny. See id. Because the common-law

duty of care arises from statute, the scope of an injured party’s claim for damages arising from a

breach of the duty is likewise shaped by the terms of the statute. Applying these principles to the

record in this case, we agree with the trial court that plaintiffs’ potential common-law claim for

damages arising from DCF’s failure to meet its statutory obligations is limited to DCF’s

obligations under 33 V.S.A. § 4915, and does not extend to asserted failures to meet its obligations

pursuant to §§ 4915a and 4915b.2

¶ 14. With some exceptions, the general common-law rule is that a person has no duty to

control the conduct of a third person to prevent harm to another. See Montague v. Hundred Acre

Homestead, LLC, 2019 VT 16, ¶ 15, 209 Vt. 514, 208 A.3d 609; Restatement (Second) of Torts

§ 315 (1965); see also Restatement (Third) of Torts: Liability for Physical and Emotional Harm

§ 37 (2012) (“An actor whose conduct has not created a risk of physical or emotional harm to

another has no duty of care to the other unless a court determines that one of the affirmative duties

[listed in the Restatement (Third)] is applicable.”).

2
Plaintiffs also broadly suggest that DCF has duties under 33 V.S.A. §§ 4911-4914.
Section 4911 reflects the purpose of the statutes, § 4912 lays out the definitions applicable to the
subchapter, § 4913 establishes the requirements for mandatory reporters, and § 4914 describes the
nature and content of a report made to DCF. As to §§ 4911 and 4912, we do not understand
plaintiffs to be making an argument that these provisions establish independent duties to support
a tort claim, and that is not how plaintiffs have briefed their argument. As to §§ 4913 and 4914,
although plaintiffs argued to the trial court that individual defendants breached their duties under
these provisions, they have not briefed those arguments on appeal. See Alpine Haven Prop.
Owners’ Ass’n v. Deptula, 2020 VT 88, ¶ 21 n.3, __Vt.__, 245 A.3d 1245 (“We consider only
those arguments that are adequately briefed.”).

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 ¶ 15. One exception to this general rule is that in some cases courts may recognize a

private right of action for damages based on violation of a statutory duty. We have noted that the

Restatement (Second) of Torts § 874A provides a framework for determining whether a private

right of action for damages is available to remedy the violation of a statute that does not expressly

include a civil remedy. See Montague, 2019 VT 16, ¶ 23. The Restatement (Third) recognizes

that § 874A of the Second Restatement was primarily directed at private actions for damages

arising from the violation of statutes proscribing misfeasance, rather than the violation of statutes

imposing affirmative duties, and more squarely recognizes this principle in the context of

affirmative duties to protect others from third parties. See Restatement (Third) of Torts: Liability

for Physical and Emotional Harm § 38 (“When a statute requires an actor to act for the protection

of another, the court may rely on the statute to decide that an affirmative duty exists and to

determine the scope of the duty.”); id. cmt. a (recognizing that Restatement (Second) § 874A did

not squarely address situations in which a statute creates an affirmative obligation to act).3

¶ 16. This Court has recognized just such a private right of action against the State arising

from statutes requiring DCF to take steps to protect neglected and abused children in the case of

3
This is distinct from the principle that where a duty of reasonable care for purposes of
tort law exists:

The court may adopt as the standard of conduct of a reasonable
[person] the requirements of a [statute or regulation] whose purpose
is found to be exclusively or in part:
(a) to protect a class of persons which includes the one whose
interest is invaded, and
(b) to protect the particular interest which is invaded, and
(c) to protect that interest against the kind of harm which has
resulted, and
(d) to protect that interest against the particular hazard from which
the harm results.

Restatement (Second) of Torts § 286 (emphasis added). For the purpose of their “common law
negligence” argument, plaintiffs have not offered an independent basis for DCF’s duty apart from
the statute itself. Although § 286 might be pertinent to determining the standard of conduct
applicable in the face of a duty that exists independent of the statute, it does not describe the
principle of law that allows a court to recognize a duty of care based in a statutory obligation.

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Sabia and its progeny. In Sabia, the plaintiffs sued DCF (then called the Department of Social and

Rehabilitation Services (SRS)) for allegedly breaching its statutory duty to protect them from

further abuse by failing “to take any steps to remove [the plaintiffs] from the home of [the alleged

abuser], or to have [the alleged abuser] removed from the home, and/or to formulate any plan to

ensure [the plaintiffs’] safety.” 164 Vt. at 297, 669 A.2d at 1190-91 (quotation marks omitted).

Reviewing our case law, we explained that to determine whether a governmental body has

undertaken a duty of care towards specific persons that is above and beyond its duty to the general

public—that is, whether a plaintiff may have an implied private right of action—this Court

considers:

(1) whether a statute sets forth mandatory acts for the protection of
a particular class of persons; (2) whether the government has
knowledge that particular persons within that class are in danger;
(3) whether those persons have relied on the government’s
representations or conduct; and (4) whether the government’s failure
to use due care would increase the risk of harm beyond what it was
at the time the government acted or failed to act.

Id. at 299, 669 A.2d at 1191.4

¶ 17. In Sabia, we explained that 33 V.S.A. § 4915(a) at the time provided that DCF

“ ‘shall cause an investigation to commence within seventy-two hours after receipt of a report’ of

child abuse”; that “the investigation ‘shall include’ a visit to the child’s home and an interview

with, or observation of, the child”; and, “if the investigation produces evidence of abuse or neglect,

[DCF] ‘shall cause assistance to be provided to the child and [their] family in accordance with a

written plan of treatment.’ ” Id. at 299, 699 A.2d at 1191-92 (quoting 33 V.S.A. § 4915 (1981)

4
Notably, the test we adopted to determine whether violation of a statutory obligation is
tantamount to breaching an affirmative duty of care to protect another from a third party for
purposes of tort-law damages borrows heavily from the factors relied upon at common law to
determine whether a party—in this case the government—has entered into an undertaking to render
services to another that gives rise to a common-law duty of care for tort law purposes. See
Restatement (Second) of Torts § 323 (explaining that a person who undertakes to render services
to another which the person should recognize as necessary for the protection of the other’s person
or things may be liable for failure to exercise reasonable care in performing the undertaking if the
failure to exercise reasonable care increases the risk of such harm or the harm results from the
reliance of the other or the third person on the undertaking.)
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(amended 1996, 2000, 2007, 2008, and 2015)). Applying the above factors, we held that this

mandatory language, along with the expressly stated purpose of the provisions to “ ‘protect

children whose health and welfare may be adversely affected through abuse or neglect,’ ”

“ ‘strengthen the family and make the home safe for children,’ ” and provide a safe and nurturing

environment for children when necessary, id. at 299, 699 A.2d at 1192 (quoting 33 V.S.A. § 4911

(1981) (amended 2008)), undoubtedly “create[d] a duty on the part of [DCF] to assist a particular

class of persons to which [the] plaintiffs belong[ed] and to prevent the type of harm suffered by

[the] plaintiffs.” Id. at 299, 699 A.2d at 1192. We accordingly reversed the trial court’s dismissal

of the plaintiffs’ claims. Id. at 312, 699 A.2d at 1199.

¶ 18. The terms of the statute at issue were critical to our assessment of the existence and

scope of the State’s potential tort liability to the Sabia plaintiffs. Our Sabia decision stands in stark

contrast to our ruling in the case of Sorge v. State, 171 Vt. 171, 762 A.2d 816 (2000). In that case,

we affirmed the trial court’s dismissal of a suit against DCF for negligent supervision of a child in

DCF custody who assaulted a delivery person. Id. at 180-81, 762 A.2d at 823. Although the

primary issue in that case was whether the State had a duty to the delivery person based on its

“special relationship” with the child, we noted that the relevant statutory provisions did not create

any duty on the part of DCF to protect the class of persons to which the delivery person belonged

from the type of harm the delivery person suffered. Id. at 175, 762 A.2d at 819. Thus, the existence

and scope of a duty of care arising from a statute, as opposed to some other common-law bases for

recognizing a tort-law duty of reasonable care, turns on the specific terms of the statute at issue.

¶ 19. As plaintiffs note, we concluded in Sabia that 33 V.S.A. § 4915 established a

statutory duty of care. 164 Vt. at 300, 669 A.2d at 1192. In 2007, after our decision in Sabia, the

Legislature substantially amended the language of this statutory framework, and notably, added

the stated purpose to “[e]stablish a range of responses to child abuse and neglect that take into

account different degrees of child abuse or neglect.” 2007, No. 168 (Adj. Sess.), § 1. Consistent

with this purpose, the current language grants DCF broader discretion in pursuing an appropriate
9
course of action. Rather than requiring DCF to investigate each report of abuse, the statute requires

that DCF first determine whether a report meets the definition of abuse or neglect. 33 V.S.A.

§ 4915(a). Under § 4912 an “abused or neglected child” includes one “whose physical health,

psychological growth and development, or welfare is harmed or is at substantial risk of harm by

the acts or omissions of his or her parent” and one “who is sexually abused or at substantial risk

of sexual abuse by any person.” Id. § 4912(1). If DCF determines a report is a valid allegation of

abuse or neglect, it “shall determine whether to conduct an assessment as provided for in section

4915a . . . or to conduct an investigation as provided for in section 4915b.” Id. § 4915(b). Whether

conducting an assessment or investigation, either “shall begin . . . within 72 hours after the receipt

of a report made pursuant to section 4914” provided that there is sufficient information to proceed.

Id. Sections 4915a and 4915b establish the procedures for assessments and investigations,

respectively. They each provide steps that an assessment or investigation must include “to the

extent that is reasonable under the facts and circumstances presented by the particular valid

allegation of child abuse or neglect.” Id. § 4915a(a); see also id. § 4915b(a) (using similar

language). Section 4915b(b) expressly states: “Nothing contained in this section or section 4915a

of this title shall be deemed to create a private right of action.”

¶ 20. Applying the above legal principles to the statute as it currently exists, we conclude

that any implied right of action against DCF based in this statutory scheme is limited to violations

of mandatory duties pursuant to § 4915 and does not extend to failures to exercise due care, or

follow the requirements of the statute, in connection with assessments and investigations

conducted pursuant to §§ 4915a and 4915b.5 We reach this conclusion for two reasons. First,

5
We recognize that our focus on the mandatory nature of the statutory duty addresses only
the first of the four factors defined in Sabia. We don’t address the remaining three factors—
whether the government has knowledge that particular persons within the class are in danger,
whether those persons relied on the government’s representations or conduct, and whether the
government created an increased risk of harm—because of our conclusions with respect to
sovereign immunity and considerations of causation. See Sabia, 164 Vt. at 299, 669 A.2d at 1191.

10
insofar as the Legislature has expressly indicated that §§ 4915a and 4915b are not to be construed

as giving rise to a private right of action, this Court declines to invoke its common-law authority

to recognize an affirmative common-law duty of care to protect another from harm based on a

statutory obligation. Second, the framework for executing DCF’s statutory obligations under

§§ 4915a and 4915b is rife with the kind of discretionary judgments by state actors that are exempt

from the State’s waiver of sovereign immunity for tort claims. Under the amended statute, DCF

is only required to conduct an assessment or investigation if the report is accepted as a valid report

of abuse. And a report is only valid if DCF determines that it meets the definition of abuse under

§ 4912. Thus, the statutes implicate substantial discretion by DCF, narrowing its actionable duties,

as discussed below. Accordingly, in evaluating the sufficiency of plaintiffs’ claims, we exclude

from our consideration claims based on a failure to properly assess or investigate a valid report of

abuse pursuant to §§ 4915a or 4915b. 6

B. Sovereign Immunity and the Discretionary Function Exception

¶ 21. The second consideration that substantially narrows the scope of plaintiffs’ claims

for damages is sovereign immunity. Because claims based on the performance of or failure to

perform discretionary duties are not exempt from the State’s waiver of sovereign immunity,

plaintiffs cannot recover damages for injuries resulting from the negligent performance by state

actors of discretionary functions. Applying this principle, we conclude that plaintiffs’ only viable

claim against the State is that DCF failed to promptly determine whether a number of reports of

However, we do address these factors below as they relate to plaintiffs’ negligent-undertaking
theory. See, infra, sec. II.
6
Plaintiffs also appear to argue in their brief that §§ 4915a and 4915b establish a standard
of conduct. As discussed supra, ¶ 15 n.3, § 286 of the Restatement (Second) of Torts describes
when a statute may establish a standard of conduct distinct from the reasonable-care standard.
However, this framework only applies where there is an existing legal duty. Because we conclude
that DCF’s scope of liability is limited to its obligation to make a determination of whether a report
of alleged abuse is valid and does not extend to the conduct of an assessment or investigation, we
need not consider plaintiffs’ argument regarding the standard of conduct for carrying out an
assessment or investigation.
11
alleged child abuse or neglect were valid as required by 33 V.S.A. § 4915(a). Otherwise, DCF’s

obligations under § 4915 are discretionary and implicate policy decisions. We expand on these

considerations below.

¶ 22. The State can only be held liable for damages when it has expressly waived

sovereign immunity. Sutton v. Vt. Reg’l Ctr., 2019 VT 71A, ¶ 35, __Vt.__, 238 A.3d 608. Under

the Vermont Tort Claims Act (VTCA), the State has waived immunity with respect to suits for

injuries to persons “caused by the negligent or wrongful act or omission of an employee of the

State while acting within the scope of employment, under the same circumstances, in the same

manner, and to the same extent as a private person would be liable to the claimant.” 12 V.S.A.

§ 5601(a). The State has thus waived immunity “only to the extent a plaintiff’s cause of action is

comparable to a recognized cause of action against a private person.” Sabia, 164 Vt. at 298, 669

A.2d at 1191. Tethering this waiver to common law “serves to prevent the government’s waiver

of sovereign immunity from encompassing purely ‘governmental’ functions.” Denis Bail Bonds,

Inc. v. State, 159 Vt. 481, 485-86, 622 A.2d 495, 498 (1993).

¶ 23. There are a number of exceptions to the VTCA, including that the State does not

waive immunity for claims “based upon the exercise or performance or failure to exercise or

perform a discretionary function or duty . . . whether or not the discretion involved is abused.” 12

V.S.A. § 5601(e)(1).

¶ 24. We apply a two-part test to determine whether a plaintiff’s claim is barred by the

discretionary function exception to tort liability. The first prong requires us to determine whether

the challenged act or omission involves “an element of judgment or choice.” Earle v. State, 2006

VT 92, ¶ 23, 180 Vt. 284, 910 A.2d 841 (quotation omitted). “If a statute or regulation or policy

specifically prescribes a course of action for an employee to follow, then the discretion requirement

is not met.” Ingerson v. Pallito, 2019 VT 40, ¶ 13, 210 Vt. 341, 214 A.3d 824 (quotation omitted).

We have explained that acts furthering policy decisions fall within the discretionary function

exception “only if there is a range of discretion to exercise in deciding how to carry out that
12
decision.” Sutton, 2019 VT 71A, ¶ 41 (quotation omitted). “While the discretionary function

exception shields the State from liability for administrative and policymaking decisions, it will not

excuse the State from liability for failure to act when required or for failure to use reasonable care

when executing ministerial tasks in furtherance of a discretionary undertaking.” Id. (quotation

omitted) (alteration omitted).

¶ 25. If the act is “discretionary in nature,” the second prong of the test requires the court

to determine “whether that judgment involved considerations of public policy which the

discretionary function exception was designed to protect.” Estate of Gage v. State, 2005 VT 78,

¶ 5, 178 Vt. 212, 882 A.2d 1157 (quotation omitted). “The purpose of the discretionary function

exception is to assure that the courts do not invade the province of coordinate branches of

government by passing judgment on legislative or administrative policy decisions through tort

law.” Ingerson, 2019 VT 40, ¶ 11 (quotation omitted). It is presumed that “when a government

agent is authorized to exercise discretion,” their acts are “grounded in policy when exercising that

discretion.” Estate of Gage, 2005 VT 78, ¶ 5. If the State’s action involves negligence unrelated

to policy objectives, then the second prong of the discretionary exception test is not satisfied.

Ingerson, 2019 VT 40, ¶ 14; see also Kennery v. State, 2011 VT 121, ¶ 36, 191 Vt. 44, 38 A.3d 35

(holding that troopers’ welfare check on the wrong house did not fall under discretionary function

exception because the “discretionary activity at issue was to apply the information given the

officers to search the right house” and there was “no public policy analysis in [that] activity”).

While the State must act with due care with regard to ministerial acts implementing policy

decisions, the discretionary function exception shields discretionary acts that further a protected

policy decision when there is a “ ‘range of discretion to exercise in deciding how to carry out the

activity.’ ” Ingerson, 2019 VT 40, ¶ 16 (alteration omitted) (quoting United States v. Gaubert, 499

U.S. 315, 325 (1991)). The exception applies to such acts “whether or not the discretion involved

is abused.” 12 V.S.A. § 5601(e)(1).

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 ¶ 26. In evaluating the sufficiency of plaintiffs’ evidence, we consider the various

mandatory duties assigned to DCF under § 4915 and whether performance of those duties amounts

to a discretionary act exempt from the State’s waiver of sovereign immunity. The first mandatory

statutory duty in § 4915 that plaintiffs invoke is DCF’s obligation, upon receipt of a report of abuse

or neglect, to promptly determine whether the allegation constitutes child abuse or neglect as

defined in § 4912. 33 V.S.A. § 4915(a). The statute does not contemplate any discretion as to

whether DCF may make this determination and requires that DCF “shall respond to reports of

alleged neglect or abuse that occurred in Vermont” or to a child who is a resident of or present in

Vermont. Id. We conclude that whether to promptly make the requisite determination does not

involve an element of judgment or choice and thus does not fall within the discretionary function

exception.

¶ 27. Although taking the step of making an initial determination of whether a report is

valid is non-discretionary, the substantive determination of whether a report meets the definition

of § 4912 necessarily involves some discretion and policy considerations. Section 4912 includes

in the definition of an abused or neglected child one “whose physical health, psychological growth

and development, or welfare is harmed or is at substantial risk of harm” and one “who is sexually

abused or at substantial risk of sexual abuse.” Id. § 4912(1). While there are undoubtedly

instances that clearly fall within this definition, DCF generally exercises its discretion in applying

§ 4912 to a particular allegation or set of allegations. Even when DCF abuses this discretion, the

determination itself is discretionary. 12 V.S.A. § 5601(e)(1). And, the discretion involved in

making this determination is the type that the discretionary function exception was designed to

protect; DCF is the agency responsible for conducting investigations and assessments of alleged

child abuse, and it makes such determinations about where and how to direct its services based on

its expertise and policy considerations. For this reason, claims that DCF unreasonably failed to

accept an allegation of abuse as a valid report fall outside of the State’s waiver of sovereign

immunity.
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 ¶ 28. The determination of whether to assess or investigate a valid allegation of abuse or

neglect under § 4915(b) also involves an element of judgment or choice. Making the

determination if an allegation is accepted as valid, and proceeding on the chosen path within 72

hours, are not discretionary. But the determination itself involves the discretionary application of

a number of factors, including those listed in § 4915(c), and implicates the kind of policy

judgments that fit within the discretionary function exception to the State’s waiver of sovereign

immunity. For that reason, claims that DCF should have undertaken an investigation rather than

an assessment upon accepting a particular allegation as a valid report of abuse fall within the

discretionary function exception to the State’s waiver of sovereign immunity. (As a factual matter,

DCF took some action with respect to the reports that were documented and accepted, and

plaintiffs do not contend otherwise; DCF’s failure to take action with respect to the alleged reports

that were neither documented nor accepted is at the heart of plaintiffs’ actionable claims.)

¶ 29. Section 4915(d) does require that DCF conduct an investigation when an accepted

report indicates substantial child endangerment. However, even in such a case, DCF must first

determine whether a report involves “substantial child endangerment”—a matter of discretion and

policy, as described above. 33 V.S.A. § 4915(d).

¶ 30. Finally, although we have concluded that DCF’s negligence in meeting its

obligations under §§ 4915a or 4915b does not amount to a breach of a duty of care for which

plaintiffs can recover damages, we note that even if we concluded otherwise, the conduct of an

assessment or an investigation falls directly within the discretionary function exception. Sections

4915a and 4915b expressly provide that an assessment or investigation should include particular

aspects “to the extent that is reasonable under the facts and circumstances presented by the

particular valid allegation.” Id. § 4915a(a); see also id. § 4915b(a); Ingerson, 2019 VT 40, ¶ 18

(“We have explained that as it requires substantial judgment in terms of means and manner, the

act of investigation is a discretionary one.” (quotation omitted) (alteration omitted)). As noted

above, because DCF’s investigations involved exercising its judgment, we presume that its
15
decisions involved matters of public policy. See Earle, 2006 VT 92, ¶ 23. And, as we said in

Earle, these investigations of allegations of abuse involve weighing competing governmental

policies and are precisely the kind of discretionary functions the exception was designed to shield.

Id.

¶ 31. Thus, the only claim implicating a non-discretionary act for which DCF can be held

liable here is that DCF failed to record a number of complaints of abuse and make an initial

determination about whether the reports were valid. The State does not dispute that it has waived

immunity as to such claims; however, it argues that plaintiffs here cannot establish causation.

C. Causation

¶ 32. An essential element of plaintiffs’ claims is that DCF’s breach of duty was a cause

in fact and a proximate cause of the alleged injury. See Palmer v. Furlan, 2019 VT 42, ¶ 8, 210

Vt. 375, 215 A.3d 109. The former requires a showing that the harm plaintiffs suffered “would

not have occurred ‘but-for’ the defendant’s conduct such that the tortious conduct was a necessary

condition for the occurrence of the plaintiff’s harm.” Id. (quotation omitted). The latter requires

a showing that defendant’s conduct was “legally sufficient to result in liability in that the injurious

consequences flowed from the defendant’s conduct and were not interrupted by some intervening

cause.” Ziniti v. New England Cent. R.R., 2019 VT 9, ¶ 15, 209 Vt. 433, 207 A.3d 463 (quotation

omitted).

¶ 33. Plaintiffs allege that DCF failed to record and respond to over thirty reports of

alleged abuse or neglect of W.H. and B.H. made by four different people. As discussed above,

DCF has a statutory duty to make prompt determinations of whether any report of alleged abuse

is valid; however, DCF can only be held liable if there is a causal connection between the failure

to make such determinations and W.H. and B.H.’s injuries. See Rivers v. State, 133 Vt. 11, 14,

328 A.2d 398, 400 (1974). Given DCF’s extensive involvement with these children during the

period in question, and given that the allegedly unrecorded and unresponded-to reports were

mostly the same as the reports that DCF did record, analyze, and accept or decline to accept, we
16
conclude that the court did not err in determining that no reasonable jury could find proximate

cause here.

¶ 34. Causation is ordinarily left to the jury to decide, but “it may be decided as a matter

of law where the proof is so clear that reasonable minds cannot draw different conclusions or where

all reasonable minds would construe the facts and circumstances one way.” Collins v. Thomas,

2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208 (quotation omitted). Generally, we recognize that a

jury could make permissible, non-speculative inferences to conclude that DCF’s failure to act on

a report is the proximate cause of a child’s injuries. See Sabia, 164 Vt. at 306-07, 669 A.2d at

1196; see also District of Columbia v. Harris, 770 A.2d 82, 93 (D.C. 2001) (holding that jury could

reasonably infer detective’s failure to conduct an adequate investigation based on a single report

was proximate cause of further abuse and injury).

¶ 35. Plaintiffs urge that the circumstances here are “almost identical” to those in Sabia,

where we concluded that a jury could find that DCF’s failure to do anything in response to reports

of alleged abuse was the proximate cause of the continued abuse of the plaintiffs. 164 Vt. at 306-

07, 669 A.2d at 1196. However, this case is distinct from Sabia in that the allegations there were

that DCF failed to respond to any reports of abuse or take any action. In this case, between May

2008 and May 2012, when the children were taken into DCF custody, DCF had recorded and

conducted intakes for at least twenty-seven reports related to abuse of W.H. and B.H., and

conducted at least seven investigations and four assessments. Each child participated in multiple

interviews, beginning in May 2008, and repeating in February and May (W.H. only) 2009; and

May, September, October, and November (B.H. only) 2010. Throughout this period, DCF opened

multiple family cases in response to allegations of abuse or neglect of W.H. and B.H. And,

significantly, the allegations from the unrecorded reports of abuse were reflected in the recorded

reports.

¶ 36. In particular, plaintiff grandparents alleged that they made a number of reports of

physical abuse of W.H. and B.H. that DCF did not record or respond to. Specifically, they reported
17
that W.H. and B.H. were being hit with backscratchers, shoes, and other objects by their father and

stepmother, that they were being improperly fed, and that they were living in unsanitary conditions.

Grandparents testified that they made these reports to the Springfield DCF office, the Central

Intake Office, to police, to social workers, and to school personnel. These allegations were,

however, reflected in other reports that DCF did record and respond to. There were at least five

accepted reports that DCF investigated based on a risk of physical abuse to W.H. or B.H.—two

against mother in 2008 and 2009, two against stepmother in 2010, and one unspecified allegation

from grandfather that W.H. came home with bruises. During the 2008 investigation, W.H.

reported in an interview that his mother hit both him and B.H., and B.H reported that their father

hit them with a backscratcher, but the report was ultimately unsubstantiated. And during the 2010

investigation of stepmother, father admitted that stepmother hit B.H., but the report was

unsubstantiated. In the 2009 and 2010 investigations, the children were interviewed and did not

disclose any physical abuse.

¶ 37. One woman who lived with father, stepmother, and W.H. and B.H. also testified

that she made between eight and ten calls and visits to DCF to report alleged abuse or neglect

while she lived there from late 2010 to early 2011 that DCF never recorded or responded to.

Specifically, she testified that she reported an incident where W.H. was hit with a hairbrush that

left a mark, that father and stepmother were not feeding W.H. and B.H. properly, that she believed

stepmother might be taking nude photos of B.H., and that B.H. and W.H. were exposed to

pornography in the home. The housemate’s partner similarly testified that she made five to ten

reports of abuse of W.H. and B.H. that DCF did not record or respond to. Specifically, she reported

that the children were being physically abused, that they would have objects thrown at them, and

that they would have their dinner taken away, and she reported one incident where stepmother

threw a “maglite flashlight” across the room at W.H., and it hit him after it bounced. She made

those reports in person and over the phone to the Springfield DCF office, to the school, and to a

social worker from the DCF office. Similar allegations of physical abuse were recorded in other
18
reports, and as noted above, were investigated. As to the report of possible sexual abuse, after

housemate heard on the news that father and stepmother had been charged, she contacted the

police, who contacted DCF. DCF accepted and investigated these allegations in 2012 and found

no evidence that B.H. was sexually abused by father or stepmother. Given this record, a jury

would have no non-speculative basis for inferring that if DCF had recorded and acted on the

alleged reports noted above—reports that overlapped extensively with the reports it did record and

act on—plaintiffs would not have suffered the same injuries.

¶ 38. We acknowledge that, viewing the record in the light most favorable to plaintiffs,

DCF failed to fulfill its statutory duty to respond to reports of alleged abuse. However, given the

nature of the reports that DCF is alleged to have failed to respond to, and the nature of the reports

that DCF did respond to during the same time period, we conclude that a jury would be forced to

engage in impermissible speculation about how DCF would have responded to these reports to

conclude that they were the proximate cause of W.H. and B.H.’s injuries. Thus, the trial court did

not err in granting judgment as a matter of law on plaintiff’s common-law negligence claim arising

from DCF’s statutory duty.

II. Negligent Undertaking

¶ 39. Plaintiffs’ alternate theory of liability is that DCF was negligent in the conduct of

its undertaking to protect B.H. and W.H., as defined in §§ 323 and 324A of the Restatement

(Second) of Torts. They argue that DCF undertook to protect W.H. and B.H. from abuse and that

they were negligent in carrying out that undertaking by failing to adhere to statutory requirements

and DCF policies. The State contends that DCF’s statutory obligations cannot constitute an

undertaking and that this theory cannot provide a separate means to sue the State where DCF’s

duties exist and are circumscribed by statute.7

7
Given the test this Court has adopted for determining whether a violation of the State’s
statutory obligations can support a private action for damages—a test that hinges in part on whether
the State’s acts increased the risk of harm or the harm results because of another’s reliance on the

19
 ¶ 40. We do not address whether a theory of negligent undertaking could be based on

DCF’s statutory and regulatory obligations because we conclude that plaintiffs’ evidence is

insufficient to meet the elements of negligent undertaking. Specifically, plaintiffs have not pointed

to evidence that DCF’s conduct increased the risk of harm to W.H. and B.H., that the harm was

suffered because of any reliance on DCF by W.H. and B.H. or third parties such as their

grandparents, or that DCF undertook to perform the duty of a third person owed to W.H. and B.H.

¶ 41. Section 323 of the Restatement (Second) of Torts provides:

One who undertakes, gratuitously or for consideration, to render
services to another which [the actor] should recognize as necessary
for the protection of the other’s person or things, is subject to
liability to the other for physical harm resulting from [the actor’s]
failure to exercise reasonable care to perform [the] undertaking, if

(a) [the] failure to exercise such care increases the risk of such
harm, or

(b) the harm is suffered because of the other’s reliance upon the
undertaking.

Accord Sabia, 164 Vt. at 302-03, 669 A.2d at 1194. Section 324A embodies the same principle

but focuses on an undertaking to another to render services necessary for the protection of a third

person or their things. An actor who undertakes to render such services can be subject to liability

to the third person for physical harm resulting from the actor’s failure to exercise due care if the

failure increases the risk of the harm, the actor has undertaken to perform a duty owed by another

to the third person, or the harm results from the reliance of the other, or the third party, upon the

undertaking. Restatement (Second) of Torts § 324A.

State’s undertaking—plaintiffs’ alternate theories may in fact be close cousins. The considerations
that inform the question of whether the State’s mandatory statutory obligations constitute a duty
of care for tort-law purposes in our case law are drawn directly from the factors defining a
common-law duty of care arising from an undertaking as defined in the Restatement. We need not
determine whether Sabia in fact articulates the test applicable to negligent-undertaking claims
based on statutes imposing mandatory affirmative obligations on the State to protect others, or
what the relationship is between the negligent-undertaking theory and the common-law negligence
theory tied to the requirements of the statute. Because plaintiffs pled these as alternative theories,
we address them separately.
20
 ¶ 42. Plaintiffs fail to show that DCF’s alleged negligence increased the risk of harm to

W.H. and B.H. in this case. We have explained that to establish increased risk of harm under

§ 324A(a), plaintiffs must identify “sins of commission rather than omission,” or conduct that

“directly increases risk of harm.” Murphy v. Sentry Ins., 2014 VT 25, ¶ 27, 196 Vt. 92, 95 A.3d

985 (quotations omitted). The standard of comparison for § 324A(a) is not the risk of harm created

if defendant exercised reasonable care, but the risk of harm that would be present if defendant had

never undertaken to render services. Kuligoski v. Brattleboro Retreat, 2016 VT 54A, ¶ 80, 203

Vt. 328, 156 A.3d 436. Neither mere failure to discover a danger nor “failure to advise” that

permits continuation of an existing risk will subject a defendant to liability. Murphy, 2014 VT 25,

¶ 27.

¶ 43. In this case, plaintiffs may be able to show that, had DCF acted with reasonable

care, they would not have suffered as much, but they have not presented evidence that DCF’s

undertaking to protect them put them at greater risk than if DCF had taken no steps at all. Our

analysis in Sabia does not persuade us otherwise. In that case, we suggested that DCF’s failure to

act increased the risk of harm to the plaintiffs by allowing the harm to continue unabated, which

may have sent a message to the perpetrator that he could act with impunity. 164 Vt. at 300, 669

A.2d at 1192. We have since made it clear that allowing a risk of harm to continue unabated,

without affirmatively making it worse, is insufficient to support an undertaking under this prong.

See Kuligoski, 2016 VT 54A, ¶ 80 & n.14 (noting that the Restatement (Third) of Torts § 43 more

explicitly recognizes this point). Moreover, Sabia came to us on an appeal from a trial court’s

award of judgment on the pleadings to the State; our suggestion that DCF’s inaction may have

emboldened the abuser reflects the indulgence due to a plaintiff in the context of a motion for

judgment on the pleadings. Powers v. Office of Child Support, 173 Vt. 390, 395, 795 A.2d 1259,

1263 (2002) (“A motion to dismiss for failure to state a claim upon which relief can be granted

should not be granted unless it is beyond doubt that there exist no facts or circumstances that would

entitle [the plaintiff] to relief.”).
21
 ¶ 44. Likewise, plaintiffs have not demonstrated that W.H. and B.H. suffered injury as a

result of their or a third person’s reliance on DCF. We considered this “reliance” prong in the case

of Kennery v. State, 2011 VT 121, ¶¶ 14-16, 191 Vt. 44, 38 A.3d 35. In Kennery, we held that the

State could be liable for negligent undertaking under a § 324A theory where a daughter requested

that state troopers conduct a welfare check on her mother’s home, the troopers went to the wrong

address, and the mother was found outside the next day by the postman and subsequently died of

hypothermia. Id. ¶ 16. We concluded that a jury could find that the mother suffered injury due to

the daughter’s reliance on the troopers conducting a competent welfare check. Id. The daughter

alleged that this reliance prevented her from personally checking on her mother and she instead

shifted her attention to checking local hospitals. “Had [the daughter] not relied on the troopers’

report and personally checked her mother’s home, she might have found [her mother] much earlier

than the postman, thus possibly limiting or preventing [the mother’s] hypothermia.” Id. Likewise,

in Sabia, in the context of describing a common-law claim pursuant to the principles in § 323 as a

private analog to the case against DCF, we noted that the plaintiffs alleged that they relied on the

assurances of a DCF employee who promised that something would be done, which may have

prevented them from seeking help from other sources. 164 Vt. at 303-04, 669 A.2d at 1194.

¶ 45. In contrast, plaintiffs here offer no evidence of their reliance on DCF’s alleged

undertaking or that they were deterred from making reports or taking any alternative action based

on their reliance. Cf. Langlois v. Town of Proctor, 2014 VT 130, ¶¶ 15-16, 198 Vt. 137, 113 A.3d

44 (holding that a town could be liable for negligent undertaking where plaintiff relied on town’s

promise to have water disconnected when she discontinued heat to a building and town failed to

discontinue water, which resulted in pipes bursting and damage to the building). Plaintiffs W.H.

and B.H. repeatedly denied abuse when interviewed about allegations that had been reported to

DCF, and plaintiff grandparents continued making reports to DCF unabated; they testified that

they did not know how DCF was responding to their reports or, at times, whether there were

ongoing investigations. In addition, plaintiff grandparents also contacted the school and police
22
and continued engaging through multiple channels to try to protect W.H. and B.H. from abuse.

Plaintiff grandparents offered no evidence that they held off on taking steps to protect W.H. and

B.H. in reliance on any assurances from DCF. We do not suggest that in any case, continued

reporting to DCF would preclude a finding of reliance, but that the particular facts in this case do

not support a conclusion that W.H. and B.H. suffered injury as a result of any reliance on DCF.

¶ 46. Finally, plaintiffs fail to show that DCF undertook to perform a duty owed to W.H.

and B.H. by a third party under § 324A(b). In their complaint, plaintiffs alleged that DCF assumed

a duty owed by the parents to W.H. and B.H. However, they point to no facts or case law to

support a conclusion that DCF, in conducting its statutory and regulatory obligations, assumes any

duty that parents owe to their children. For these reasons, we affirm the trial court’s award of

judgment as a matter of law on plaintiffs’ negligent undertaking claims.8

Affirmed.

FOR THE COURT:

Associate Justice

¶ 47. REIBER, C.J., dissenting. I cannot join the majority’s conclusion that this case

warrants judgment as a matter of law. The evidence presented at trial and the posture of the case

was such that the jury should have decided whether plaintiffs’ injuries were proximately caused

by the Vermont Department for Children and Families’ (DCF) failure to respond to numerous

reports of suspected abuse. On this basis, I respectfully dissent.

¶ 48. A court may grant judgment as a matter of law before the case is submitted to the

jury for consideration if “there is no legally sufficient evidentiary basis for a reasonable jury to

8
Plaintiffs also argue that in making its decision, the trial court improperly considered the
closure of the court due to the weather. The court specifically indicated otherwise on the record
when it granted the motion, stating that it had made the decision not to submit the case to the jury
before it was informed that the courthouse was closing due to the snowstorm. For that reason, we
find no basis in the record to support plaintiffs’ argument.
23
find for [the nonmoving] party.” V.R.C.P. 50(a). If the nonmoving party presented evidence that

may fairly and reasonably support each element of a claim, then judgment as a matter of law is

improper and the jury must consider the issue. Gero v. J.W.J. Realty, 171 Vt. 57, 59, 757 A.2d

475, 476 (2000). We consider the evidence under the same standard as the trial court: we view it

in the light most favorable to the nonmoving party, excluding the effect of modifying evidence

and drawing every reasonable inference in favor of the nonmoving party. Id.; Fila v. Spruce

Mountain Inn, 2005 VT 77, ¶ 13, 178 Vt. 323, 885 A.2d 723. Under this standard, the question is

not whether plaintiffs have proved causation. See Fila, 2005 VT 77, ¶ 17. Rather, the question is

simply whether plaintiffs presented evidence that was “legally sufficient . . . for a reasonable jury

to find” that DCF’s failure to act caused injury to plaintiffs. V.R.C.P. 50(a)(1).

¶ 49. The Vermont Constitution considers the right to a jury trial “sacred,” and for good

reason. Vt. Const. ch. I, art. 12. Trials of claims in the civil courts are structured to achieve a

decision of the community because these cases are tried and decided by a jury of peers. Thus, our

precedent properly instructs that proximate cause is ordinarily a matter for the jury to determine,

“unless the proof is so clear that reasonable minds cannot draw different conclusions or where all

reasonable minds would construe the facts and circumstances one way.” Roberts v. State, 147 Vt.

160, 163, 514 A.2d 694, 696 (1986) (quotation omitted). This Court has recognized that a jury

can permissibly infer that DCF’s failure to act on reported abuse proximately caused a child’s

injuries. See Sabia v. State, 164 Vt. 293, 306, 669 A.2d 1187, 1196 (1995). However, the majority

concludes that judgment as a matter of law was proper here because the jury would have needed

to speculate to find a causal connection between DCF’s inaction and plaintiffs’ injury, based on

DCF’s involvement with the family.

¶ 50. In my view, plaintiffs’ evidence was sufficient for a reasonable jury to find that

their injuries resulted from DCF’s conduct such that the trial court should not have taken the

decision out of the jury’s hands as a matter of law. The jury heard extensive evidence from both

sides during a two-week trial. Four witnesses testified that DCF failed to record and respond to
24
over thirty reports alleging abuse or neglect of plaintiffs. Plaintiffs’ expert, Dr. Zeller, opined that

DCF’s failure to record every report of abuse, even if it involved the same conduct as another

report, caused the children to suffer prolonged abuse because “it’s all evidence” that DCF uses “in

determining whether or not the abuse or neglect occurred.” He testified that:

Each report is an opportunity for the department to get more
information about the family. Each report adds to the record that
you have that’s—potentially shows a pattern of behaviors on the part
of the parents or a pattern of behaviors on the part of the children
reacting to the situations they’re in.

And one of the things that—that DCF is required to do in looking
at whether this is abuse or neglect is to look not only at individual
incidents, but also at patterns of behavior. And so . . . if you ignore
[numerous reports] over the course of what was essentially a year or
two . . . then patterns of behavior are probably there that you don’t
know anything about because you denied yourself the information
that you needed . . . .

[T]he impact on the kids is that they miss an opportunity to get
another layer of protection, to have another set of eyes look at the
case and say, okay, now we see something going on.

Moreover, during the defense’s case, a DCF worker testified regarding DCF’s process for

receiving reports of suspected abuse or neglect and reviewed the approximately twenty-seven

recorded reports made about plaintiffs’ family and household. She explained that many of those

reports were not accepted as valid allegations of abuse, but DCF nonetheless forwarded them to

the case worker assigned to plaintiffs’ family.

¶ 51. On this record, a reasonable jury could conclude that by failing to record and

respond to approximately thirty additional reports of suspected abuse, DCF lost the opportunity to

make decisions about plaintiffs based on all available information. Had the case not been decided

at the conclusion of the evidence, the jury could have concluded that DCF’s inaction proximately

caused plaintiffs’ prolonged abuse, as in Sabia. See 164 Vt. at 306, 669 A.2d at 1196. It is true

that in Sabia, DCF failed to respond to any reports of alleged abuse, whereas here DCF responded

to numerous reports and conducted several investigations and assessments. The majority relies on

this distinction and reasons that because the unrecorded reports of abuse overlapped with the
25
reports of abuse to which DCF did respond and because DCF was already providing services to

the family, a jury would have to speculate to conclude that plaintiffs would not have suffered the

same injuries if DCF had recorded all reports. But this analysis overlooks the expert testimony

that the cumulative effect of the reports demonstrated a pattern of behavior that warranted

intervention. Viewed in the light most favorable to plaintiffs, the jury could have reasonably

inferred without speculation that had DCF recorded and responded to the thirty additional reports,

plaintiffs would not have suffered the same injuries.

¶ 52. Ultimately, two weeks of evidence was before the jury, including expert opinions

for and against plaintiff’s claims. These facts did not so clearly compel a conclusion to allow the

court to decide the case on its own as a matter of law. On the evidence presented, this case should

have turned on determinations of credibility and assessments of the weight of the evidence—

matters squarely within the province of the jury. See Estate of George v. Vt. League of Cities &

Towns, 2010 VT 1, ¶ 56, 187 Vt. 229, 993 A.2d 367 (Reiber, C.J., dissenting) (“[E]valuating an

expert’s credibility and the weight of the evidence is the ageless role of the jury.” (quotation and

alterations omitted)); Simpson v. Rood, 2003 VT 39, ¶ 15, 175 Vt. 546, 830 A.2d 4 (“Whether

presented with a fact witness or opinion witness, the jury’s role is to observe the testimony and

weigh the evidence presented.”). This is particularly so in child-abuse cases, where the core of the

case often calls upon the jury to weigh conflicting testimony and consider expert opinions. In such

cases, “[w]here the evidence supports multiple reasonable inferences, we leave it for the jury to

choose among them.” Monahan v. GMAC Mortg. Corp., 2005 VT 110, ¶ 2, 179 Vt. 167, 893 A.2d

298.

¶ 53. By taking the decision out of the hands of the jury as a matter of law at this stage

of the proceeding, the trial court overtook the role of the jury. To be clear, a reasonable jury might

have concluded either that DCF did not proximately cause plaintiffs’ injuries for the reasons set

forth by the majority, or that it did so. But “unless the proof is so clear that reasonable minds

cannot draw different conclusions or where all reasonable minds would construe the facts and
26
circumstances one way,” this issue falls within the jury’s purview. Roberts, 147 Vt. at 163, 514

A.2d at 696 (quotation omitted). I cannot conclude that this case presents such a situation, and I

therefore respectfully dissent.

Chief Justice

27