## Facts

- The Vermont Department of Social and Rehabilitation Services (SRS) licensed and inspected child-care facilities, including Kiddie Kare Day Care, which had been licensed since 1981.
- Gary and Tracy Lafond, eligible for a child-care subsidy, asked an SRS employee whether Kiddie Kare was covered and whether it was a good center.
- The employee stated she had “nothing bad on file” about Kiddie Kare and that SRS would provide the subsidy.
- The Lafonds visited Kiddie Kare and enrolled their children; their son Tyler attended until May 1992.
- On May 4, 1992, an SRS employee inspected Kiddie Kare as part of annual relicensing; she did not observe a curtain cord hazard.
- On May 7, 1992, Tyler became entangled in a curtain cord while in a crib at Kiddie Kare and died from strangulation and suffocation.
- The Lafonds alleged Tyler’s death was caused in part by SRS’s negligent inspection and supervision of the facility.

## Issues

1. Whether claims based on SRS’s licensing, inspection, and regulatory oversight of a day-care facility are barred by the Vermont Tort Claims Act discretionary-function exception.
2. Whether an SRS employee’s statement that there was “nothing bad on file” about the facility created an actionable duty (or similar basis) that avoids sovereign immunity.

## Decision

- The Vermont Supreme Court reversed the denial of summary judgment and directed judgment for the State/SRS.
- The court held that licensing, inspection, and enforcement decisions within SRS’s child-care regulatory program are discretionary functions protected by sovereign immunity under the Vermont Tort Claims Act.
- The court held that the employee’s limited statement about what was “on file,” and the subsidy approval, did not create a special, individualized duty to the Lafonds that would defeat immunity.

## Legal Principles

- Vermont waives sovereign immunity only to the extent specified by the Vermont Tort Claims Act; the waiver does not extend to claims based on the exercise or failure to exercise a discretionary function or duty.
- Discretionary functions include regulatory licensing, inspections, prioritization of enforcement, and related choices involving judgment, policy considerations, and allocation of limited resources.
- The discretionary-function inquiry focuses on the nature of the governmental activity, not whether a particular employee allegedly acted negligently in carrying it out.
- General regulatory duties owed to the public do not, without more, create a special duty to specific individuals; informal informational statements about agency records do not amount to a safety guarantee.

## Conclusion

The court held that tort claims alleging negligent day-care licensing and inspection were barred because those regulatory activities are discretionary under the Vermont Tort Claims Act, and the agency employee’s limited assurances did not create a special duty sufficient to avoid sovereign immunity.


Lafond v. Vt. Dep’t of Soc. & Rehab. Servs., 708 A.2d 919 (Vt. 1998)