United States District Court, S.D. West Virginia, Charleston
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.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. United States District Judge
is plaintiffs' motion for summary judgment, filed
December 6, 2017. Also pending is defendants' motion for
summary judgment, filed December 8, 2017.
Factual and Procedural Background
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 (“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.'
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. Charity Walls Dep. 18 Ex. E Pls.'
Mot.; see Steven Walls Dep. 6, 25-27 Ex. L Pls.' Mot.
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.
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.
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.
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.
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.
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.
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
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.
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).
time of the recodification, the legislature stated the
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.
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.
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.
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).
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.
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).
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
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.
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.
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.
court concludes that Steven and Charity Walls as foster
parents are ...