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Blankensip v. Necco, LLC

United States District Court, S.D. West Virginia, Charleston

July 25, 2018

ASHLEY BLANKENSHIP, Administratrix of the Estate of AUBREE INGERSOLL, a deceased infant, Plaintiffs,
NECCO, LLC, successor-in-interest to NECCO, INC., and d/b/a NECCO d/b/a NECCO & ASSOCIATES, and NECCO, INC., Defendants.


          John T. Copenhaver, Jr. United States District Judge

         Pending is plaintiffs' motion for summary judgment, filed December 6, 2017. Also pending is defendants' motion for summary judgment, filed December 8, 2017.

         I. Factual and Procedural Background

         This case arises out of the death of a fifty-two-day-old infant, Aubree Ingersoll, that occurred while the child was under the care of the West Virginia Department of Health and Human Resources (“WV DHHR”) in the home of certified foster parents. See Transfer of Custody Ex. A Def.'s Mot. Summ. J. (“Defs.' Mot”); Walls Certificate of Recertification Ex. E Defs.' Mot.; Report of Criminal Investigation (“Investigation Report”) Ex. D Pls.' Mot. Summ. J. at 2[1] (“Pls.' Mot.”); Report of Death Ex. F Pls.' Mot. at 6. Aubree was born on May 11, 2015 and taken into custody by WV DHHR the next day before leaving the hospital. Transfer of Custody; Amy Rickman Aff. Ex. B Defs.' Mot. at 6. WV DHHR contracts with defendant Necco, LLC successor-in-interest to Necco, Inc. and doing business as Necco and Necco and Associates (together “Necco”) “for the provision of specialized foster care services for youth in the custody/guardianship of the [WV DHHR].” 2015 Contract at 1 Ex. A Pls.' Mot.; see 2013 Contract at 1 Ex. 1 to Ex. B, Ex. H Defs.' Mot.

         Through Necco, Aubree was placed with foster parents Aaron David Hall and Stella June Hall, who were certified by Necco as therapeutic foster parents. Rickman Aff. at 6; Hall Certificate Ex. C Def.'s Mot. On or around June 24, 2015, Aubree was transferred, with approval from WV DHHR and Necco, for approximately twelve days of respite foster care to the home of Steven and Charity Walls, who were similarly certified Necco foster parents. Rickman Aff. at 6; Request for Youth Ex. D Defs.' Mot.; Walls Certificate; Walls Foster Agency Agreement Ex. B Pls.' Mot. Defendants represent that “[r]espite care is the planned or emergency temporary relief of caregivers of a foster child. In this instance, certified Necco foster parents Steven and Charity Walls provided respite care to Aubree while David and Stella Hall were on vacation.” Defs.' Mem. Supp. Summ. J. 3 n. 4 (“Defs.' Mem.”). Mr. and Ms. Walls raised a daughter of their own, age six at the time of these events, and had previously provided foster care for approximately six children, at least two of whom were infants under one year in age.[2] Charity Walls Dep. 18 Ex. E Pls.' Mot.; see Steven Walls Dep. 6, 25-27 Ex. L Pls.' Mot.

         At approximately 1:30 or 2:00 a.m. on July 1, 2015, Aubree woke up and was fed by Ms. Walls, who then burped her, swaddled her, and placed her back in the crib that was beside Ms. Walls' bed. Investigation Report at 2; Report of Death at 6. Ms. Walls placed Aubree turned onto her side and also placed a rolled up blanket in the crib as a positioner to support Aubree and prevent her from rolling onto her stomach. Walls Dep. 23; Report of Death at 6. Ms. Walls testified that on the night of the incident, Aubree “didn't burp well -- only a small burp, ” and that Aubree had “spit up a little bit in the days prior.” She adds, “[s]o I wrapped her back. I laid her down on her back just kind of to her side, just slightly enough that if she would spit up, she wouldn't choke was my intention.” C. Walls Dep. 21.

         At 6:00 a.m., Ms. Walls awoke to her alarm, proceeded to check on Aubree, and found the infant was cold and unresponsive. Report of Death at 6; Investigation of Alleged Abuse or Neglect in Child Care Agency (“Neglect Investigation”) at 1 Ex. F Defs.' Mot. Ms. Walls noted that Aubree's head was now turned toward the blanket, but she maintained that “her face was visible. You could clearly see all of her face.” Compare Neglect Investigation at 1; Report of Death at 6 (“decedent's face and body were pressed against the blanket roll”) with C. Walls Dep. 24. Ms. Walls called 911 and proceeded to perform cardiopulmonary resuscitation with some additional instruction by the 911 dispatcher. Report of Death at 6; Investigation Report at 2; Neglect Investigation at 1. Medics arrived at the home at 6:23 a.m. and pronounced Aubree dead at the scene at 6:33 a.m. Report of Death at 1, 6.

         A post-mortem examination and death investigation was performed on Aubree on July 2, 2015. Id. at 1. As a result of this examination, Dr. Joseph DelTondo, Deputy Chief Medical Examiner, found that Aubree “died as a result of Sudden Unexplained Infant Death” (“SUID”). Id. at 6. He further stated that “[s]ide sleeping with rolled blankets and/or other items in a crib is considered unsafe sleep conditions, and is listed as factors contributing to death, ” but noted “[t]he manner of death for the purposes of vital statistics registration is undetermined.” Id. In its investigation of the incident, WV DHHR determined that “child neglect ha[d] not occurred.” Neglect Investigation at 1. No criminal charges were filed, and WV DHHR took “[n]o actions (e.g., no citations, sanctions, or limitations placed on Necco's license).” Rickman Aff. at 6-7.

         Plaintiff Ashley Blankenship, the biological mother of Aubree, brought this action on December 13, 2016 against former defendant ENA, Inc. See Compl. On April 20, 2017, plaintiffs filed their amended complaint, removing any claim against ENA, Inc. and instead bringing suit against Necco. Am. Compl. Plaintiffs allege four counts against Necco: (1) vicarious liability based on the negligence of the foster parents, (2) negligence of Necco, (3) res ipsa loquitur, and (4) punitive damages. See Am. Compl. ¶¶ 15-32.

         Both plaintiffs and defendants seek summary judgment on the issue of vicarious liability. Specifically, the plaintiffs request that the court find that “(I) Charity Walls was negligent which proximately caused or contributed to Aubree Ingersoll's death; (II) Charity Walls was acting within the scope of her authority or employment as a foster parent at all times relevant to Aubree Ingersoll's death; and (III) defendant, Necco, is vicariously liable for Charity Walls'[] negligence.” Pls.' Mot. 6. In addition to the issue of vicarious liability, Necco also asks that the court grant it summary judgment on the remaining three counts. Necco asserts that summary judgment for it on all the claims brought against it is proper because (1) Necco is immune from civil liability pursuant to W.Va. Code § 49-2-810, and its foster parents act in loco parentis and should be protected by parental immunity; (2) because foster parents, such as Mr. and Ms. Walls, are not employees, agents, or servants of Necco, the foster agency cannot be held vicariously liable; (3) that Necco was not negligent as it operated in conformance with industry best practices at all times relevant to Aubree's death; (4) that Aubree's death was unexplained and accidental, so res ipsa loquitur cannot apply to prove negligence; and (5) if summary judgment is granted as to the preceding issues, punitive damages may not proceed as a standalone claim. Defs.' Mot. 2; Defs.' Mem. 15-17.

         II. Governing Standard

         When both parties have filed motions for summary judgment, the court must consider “each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Bacon v. City of Richmond, 475 F.3d 633, 637-38 (4th Cir. 2007) (quoting Rossignol v. Voorhaar, 316 F.3d 348, 354 (4th Cir. 2003)). Summary judgment is appropriate only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Material” facts are those necessary to establish the elements of a party's cause of action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also News & Observer Publ'g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (same). A “genuine” dispute of material fact exists if, in viewing the record and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a reasonable fact-finder could return a verdict for the non-moving party. Anderson, 477 U.S. at 248.

         III. Discussion

         1. Immunity

         As a preliminary matter, Necco asserts that it is entirely immune from suit on this incident pursuant to W.Va. Code § 49-2-810. Defs.' Mot. 2; Defs.' Mem 15-17. Necco further asserts that foster parents Steven and Charity Walls are covered by the traditional doctrine of parental immunity, such that they have no liability to import to Necco. Id. Each basis for immunity will be discussed in turn.

         A. Statutory Immunity

          W.Va. Code § 49-2-810 prescribes that “[a]ny person, official or institution participating in good faith in any act permitted or required by this article are immune from any civil or criminal liability that otherwise might result by reason of those actions.” This immunity provision appears in Article 2 of Chapter 49 of the West Virginia Code, which governs state responsibilities for children. See W.Va. Code § 49-2-101 et seq. Necco asserts that “the evidence of record demonstrates that at all times relevant to this action, Necco was participating in acts permitted and/or required under” Chapter 49, Article 2 of the West Virginia Code, the relevant “article” for which immunity is granted by § 49-2-810. Defs.' Mem. 11. Therefore, Necco argues, it should be immune from suit for this incident because statutory immunity is provided to “any act permitted or required by this article.” W.Va. Code § 49-2-810.

         In 2015, the State Legislature undertook to recodify Chapter 49 of the West Virginia Code in order to “embrace in a revised, consolidated, and codified form and arrangement the laws of the State of West Virginia relating to child welfare.” W.Va. Code § 49-1-101. Prior to this recodification, the immunity provision relied upon by defendants was located at Article 6A of Chapter 49, which was solely concerned with the mandatory reporting for children suspected to be suffering abuse. See W.Va. Code § 49-6A-1 et seq. (2014). Therefore, up and until the time of the 2015 recodification, which became effective on May 17, 2015, the statutory immunity appears to have been available only for acts taken in good faith under Article 6A. W.Va. Code § 49-6A-6 (2014).

         At the time of the recodification, the legislature stated the following intent:

In recodifying the child welfare law of this state during the regular session of the Legislature in the year 2015, it is intended by the Legislature that each specific reenactment of a substantively similar prior statutory provision will be construed as continuing the intended meaning of the corresponding prior statutory provision and any existing judicial interpretation of the prior statutory provision. It is not the intent of the Legislature, by recodifying the child welfare law of this state during the regular session of the Legislature in the year 2015 to alter the substantive law of this state as it relates to child welfare.

          W.Va. Code § 49-1-102. This statement tends to indicate that the legislature did not wish to create a broad statutory immunity for any action taken in good faith under Article 2, as Necco entreats. Rather, it appears that this immunity should continue to extend only to actions related to mandatory reporting requirements for children suspected to be victims of child abuse -- that is, it should apply only to Part VIII of Article 2.

         As Necco has made no assertion that any of its actions or the actions of its foster parents were permitted or required by Part VIII of W.Va. Code § 49-2, it is not immune from suit in this action.

         B. Parental Immunity

         “[T]he doctrine of parental immunity prohibits a child from bringing a civil action against his or her parents.” Cole v. Fairchild, 198 W.Va. 736, 482 S.E.2d 913, 926 ( W.Va. 1996) (citing Lee v. Comer, 159 W.Va. 585, 224 S.E.2d 721, 722 ( W.Va. 1976)). The Supreme Court of Appeals of West Virginia has stated both that “the underlying purpose of this doctrine is to preserve the peace and tranquility of society and families by prohibiting such intra-family legal battles, ” and that “the real purpose behind the doctrine is simply to avoid undue judicial interference with parental discretion, ” which “entails countless matters of personal, private choice, ” and “[i]n the absence of culpability beyond ordinary negligence, those choices are not subject to review in court.” Cole 482 S.E.2d at 926 (quoting Shoemake v. Foegel, LTD, 826 S.W.2d 933, 936 (Tex. 1992) (internal quotations omitted).

         Several exceptions to the doctrine have been carved out of the general immunity. See Cole 482 S.E.2d at 926. One exception allows a child to bring suit against a parent for personal injuries sustained in an automobile accident caused by his or her parent's negligence. Syl. pt. 2, Lee 224 S.E.2d 721. This exception exists for automobile accidents because “in most instances, there was automobile liability insurance coverage, ” so “there would be no real disruption of family harmony.” Courtney v. Courtney, 186 W.Va. 597, 413 S.E.2d 418, 427 ( W.Va. 1991). A child may also bring suit against a parent for injury or death caused by “intentional or willful conduct.” Syl. pt. 9, Courtney 413 S.E.2d 418. Further, “[t]he parental immunity doctrine does not prohibit the negligence of a parent from being asserted as a defense in an action brought by the parent for the wrongful death of a child.” Syl. pt. 7, Cole 482 S.E.2d 913.

         Necco asserts that foster parents should be entitled to parental immunity because they act in loco parentis, that is, they “act[] as a temporary guardian or caretaker of a child, taking on all or some of the responsibilities of a parent.” Black's Law Dictionary 858 (9th ed. 2009); Defs.' Mem. 15-17. Nevertheless, Necco acknowledges that the issue of whether a foster parent is entitled to parental immunity has never been explicitly addressed or adopted by the Supreme Court of Appeals of West Virginia. Defs.' Mem. 16. There is some support for a foster parent being treated as acting in loco parentis under West Virginia law, as in Clifford K. v. Paul S. ex rel. Z.B.S. the Supreme Court of Appeals held that a “psychological parent” could include foster parents, and noted that a “psychological parent” is similar to the “concepts of ‘de facto parent' status or ‘in loco parentis.'” 217 W.Va. 625, 619 S.E.2d 138, 157 n. 19 ( W.Va. 2005).

         While the Supreme Court of Appeals for West Virginia has never explicitly extended the doctrine of parental immunity to foster parents, there are policy indications as to why it should not apply in a case such as this. The two traditional policies underlying the justification for parental immunity are preserving the peace of society by avoiding intra-family legal battles and avoiding undue judicial interference with parental discretion. Cole 482 S.E.2d at 926. As to the first policy, the court notes that because Aubree is now deceased, and no foster parent is named as a defendant in this action, the potential for intra-family discord does not exist. As the Supreme Court noted in Cole, “the espoused purpose of the doctrine of parental immunity is less forceful when a child dies and a wrongful death suit is brought. As a result of the child's death, the potential conflict between the child and the parent no longer exists.” Id. at 927.

         Similarly, less discretion is given to foster parents in caring for children placed in their homes when compared to natural parents. Foster parents and foster agencies are governed by numerous statutory and regulatory requirements to provide for the safety and well-being of foster children. See generally W.Va. Code §§ 49-2-107, 49-2-126; W.Va. Code R. §§ 78-2-1 et seq.

         Among other requirements, foster parents must have “the life experiences, personal characteristics and temperament suitable for working with children in need of care.” W.Va. Code R. § 78-2-13. In order to be approved, prospective foster parents must submit to background checks and provide a minimum of four non-relative references. Id. Foster parents may not have more than six children in their home and will not be permitted to parent two children less than two-years-old at the same time. Id. A foster home cannot, absent special approval, have any resident who has any convictions other than minor traffic violations. Id. Foster parents must provide proof of reliable transportation and sufficient income. Id. They must submit to a comprehensive home study. W.Va. Code R. § 78-2-16. If both parents work, they must receive approval of their plan for the care of the children during work hours. Id. They must participate in a required orientation and training curriculum both before a child is placed in their home and on an ongoing basis. Id. at § 78-2-20.

         As it relates to this case especially, the record indicates that Ms. Walls may have received at least some instruction on best practices for placing children to sleep in cribs -- including not placing any soft blankets, stuffed animals, or other loose bedding in the crib with a sleeping child. See C. Walls Dep. 12-13; S. Walls Dep. 28-29; Rickman Aff. at 5. Because of the special requirements and regulations placed on foster parents, as well as their increased oversight and training, they have less discretion in determining how to best care for children placed in their home. As a consequence, any judicial review for acts of alleged negligence is more suitable in the case of a foster parent.

         The court concludes that Steven and Charity Walls as foster parents are ...

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