Blankensip v. Necco, LLC

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF WEST VIRGINIA

AT CHARLESTON

ASHLEY BLANKENSHIP,

Administratrix of the

Estate of AUBREE INGERSOLL,

a deceased infant,

Plaintiffs,

v. Civil Action No. 2:16-cv-12082

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

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 21 (“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

1 All references to this document utilize the pagination

generated by ECF.

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

2 Ms. Walls testified that one of the six other foster placements

was a short-term respite placement, but she gives some

indication that the other placements were typical, non-respite

foster placements. C. Walls Dep. 18. Mr. Walls testified that

the Walls family was interested in trying to adopt one of the

female children that had been placed for foster care in the

home. S. Walls Dep. 25-26. This foster child was also in the

home at the time that the Walls family took Aubree for respite

care. S. Walls Dep. 30.

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 not covered by parental immunity.

2. Vicarious Liability

Both plaintiffs and defendants seek summary judgment

as it relates to Count I of the amended complaint, alleging

Necco’s vicarious liability for the actions of Ms. Walls. The

parties both request that the court determine whether Ms. Walls

was an employee, agent, or servant of Necco, such that Necco

could be held vicariously liable. The plaintiffs further

request that the court rule as a matter of law that Ms. Walls

was negligent in her actions that allegedly resulted in Aubree’s

death.

“Where a defendant has control over the negligent

actor, he may be vicariously liable for that actor’s

negligence.” Thomas v. Raleigh Gen. Hosp., 178 W. Va. 138, 358

S.E.2d 222, 224 (W. Va. 1987). An employer may be vicariously

liable for the acts of an employee under the theory of

respondeat superior, as “[t]he master is answerable to a

stranger for the negligent act of a person employed by the

[master or] master’s authorized agent, if the act is within the

scope of the person’s employment.” Zirkle v. Winkler, 214 W.

Va. 19, 585 S.E.2d 19, 22 (W. Va. 2003) (quoting Syl. pts. 3-4,

O’Dell v. Universal Credit Co., 118 W. Va. 678, 191 S.E. 568 (W.

Va. 1937)). However, a defendant generally cannot be held

vicariously liable for negligent actions committed by its

independent contractor. Syl. pt. 5, Law v. Phillips, 136 W. Va.

761, 68 S.E.2d 452 (W. Va. 1952).

In analyzing whether a master-servant, principal-

agent, or employer-employee relationship exists in order to

impute liability, there are four general factors the court may

consider: “(1) Selection and engagement of the servant; (2)

Payment of compensation; (3) Power of dismissal; and (4) Power

of control. The first three factors are not essential to the

existence of the relationship; the fourth, the power of control,

is determinative.” Syl. pt. 5, Paxton v. Crabtree, 184 W. Va.

237, 400 S.E.2d 245 (W. Va. 1990). Stated another way: “The

test of the relation between one having work done and the

workman consists in the employer's right or lack of right to

supervise the work. If that right exists, the relation is that

of master and servant. If that right does not exist, the

relation is that of employer and independent contractor.” Syl.

pt. 1, McCoy v. Cohen, 149 W. Va. 197, 140 S.E.2d 427 (W. Va.

1965). Under West Virginia law,

It is always incumbent upon one who asserts vicarious

liability to make a prima facie showing of the

existence of the relation of master and servant or

principal and agent or employer and employee.

However, once a prima facie showing has been made, it

is incumbent upon one who would defeat liability on

the basis of an independent contractor relationship to

show such fact. If there is a conflict in the

evidence, and there is sufficient evidence to support

a finding of the jury, the determination of whether

one is an independent contractor is a question for the

jury.

Sanders v. Georgia-Pacific Corp., 159 W. Va. 621, 225 S.E.2d

218, 222 (W. Va. 1976) (internal citations omitted).

Necco argues that plaintiffs have not made a prima

facie showing that foster parents are its agents, servants, or

employees. In fact, Necco states its belief that “the role of a

foster parent[] is unique and should not be shoehorned into the

box of employer-employee or independent contractor status.”

Defs.’ Mem. 21. Rather, foster parents “may best be described

as expense-reimbursed volunteers who assist the State in caring

for children in its custody.” Defs.’ Mot. 2-3; see Mitzner ex

rel. Bishop v. Kansas Dep’t of Social & Rehabilitation Servs.,

891 P.2d 435 (Kan. 1995) (“A more apt description of a foster

parent would be more of an expense-reimbursed volunteer who must

be licensed and who operates within certain guidelines.”).

However, Necco contends that even if foster parents are

considered to be independent contractors of the foster agency,

Necco does not exercise control sufficient to impart vicarious

liability for the acts or omissions of a foster parent. Necco

maintains that its “relationship with its foster parents,

including Mrs. Walls, is prescribed by its contract with [WV]

DHHR and by a comprehensive set of regulations by which it must

abide.” Defs.’ Resp. Pls. Mot. 12.

“It is the responsibility of the [WV DHHR] to provide

care for neglected children who are committed to its care for

custody or guardianship. The [WV DHHR] may provide this care

for children in family homes meeting required standards of

certification established and enforced by the [WV DHHR].” W.

Va. Code § 49-2-106. Pursuant to W. Va. Code § 49-1-206, Necco

is a licensed “Child Placing Agency,” which is defined as, “a

child welfare agency organized for the purpose of placing

children in private family homes for foster care or for

adoption. The function of a child placing agency may include

the investigation and certification of foster family homes and

foster family group homes as provided in this chapter.” See

also Child Placing Licenses Ex. M Defs.’ Mot.

Necco recruited, trained, and certified prospective

foster parents to house and care for children in the custody of

the WV DHHR. Crawford Dep. Ex. H Pls.’ Mot. 11-19; Adams Dep.

Ex. K Defs.’ Mot. 18-24. Foster parents are provided with a per

diem as reimbursement for the expenses of having an additional

child in their home. Davis Dep. Ex. I Pls.’ Mot. 37; 2013

Contract 9. Necco foster parents enter into an agreement with

Necco that outlines the extensive responsibilities to be

performed by foster parents including: treating foster children

as family members; providing varied and nutritious food;

assisting with schoolwork; providing opportunities for children

to participate in recreational activities; promoting and

encouraging hygiene; providing non-medical transportation;

providing opportunities and encouragement for religious

training; participating in assessments, case planning

conferences, transition planning, and ongoing family support

groups; documenting foster children’s behaviors; immediately

reporting to Necco any accident or illness involving a foster

child; notifying Necco when a child will be absent from a home

overnight or before transporting a foster child out of state;

reporting any suspicions of abuse or neglect; maintaining a

working telephone; and employing supportive discipline while

refraining from using corporal punishment. See Walls Foster

Agency Agreement 1-4.

A foster parent who does not comply with the

requirements set forth in the agreement and the parent handbook

may be disciplined by Necco up to and including the closure of

their home from providing foster services with Necco. Crawford

Dep. 26-28, 32-34 (“The child placement agency can remove the

child if the parents are not following the rules and regulations

or they can remove the child for any reason they so choose.”);

Davis Dep. 32-34. Rebecca Adams, Home Resource Coordinator for

Necco, testified:

Q. What happens if they don’t [follow the

requirements]?

A. A number of things could happen. They could

receive a warning -- a verbal warning, a written

warning. It could go as far as what we call a

corrective action plan. Then it could also result

in their home not being certified anymore.

Q. So if they don’t follow Necco’s policies and

procedures and rules, ultimately their home could

be closed?

A. Yes.

Q. And they would no longer be able to serve as a

Necco foster parent?

A. Yes.

. . . .

[Discussing the Walls Foster Agency Agreement]

Q. And did Necco come up with these

[responsibilities]?

A. The requirements that we have for foster parents

basically are given to us by the state and we

follow through with those.

Q. You follow through with them. This agreement

though is between Charity and Steven Walls and

Necco, correct?

A. Yes.

Q. This is not with the state?

A. Correct.

Q. So Necco requires them to provide these [twenty]

things to foster children?

A. Yes. We require exactly what the state would

require.

. . . .

Q. And all of these [responsibilities] are required?

They’re not negotiable? These have to be followed?

A. They are required.

Q. And what happens if any of these aren’t followed

. . . .

A. Like I said earlier, they could be subject to a

warning -- verbal warning, written warning. There

could be a corrective action plan, and then closure

of the home.

Adams Dep. 30-31, 36-41.

While it appears that Necco is given some discretion

in the performance of its duties as a Child Placing Agency, the

ultimate engagement, payment, dismissal, and control of foster

parents comes not from Necco, but from the WV DHHR as well as

the regulations imposed by the state of West Virginia.

Recognizing that “child welfare services should be directed by

the principle that the health and safety of children should be

of paramount concern,” the West Virginia Legislature promulgated

a list of eleven goals for foster children in the care of the WV

DHHR:

(1) Protection by a family of his or her own, and be

provided readily available services and support

through care of an adoptive family or by plan, a

continuing foster family;

(2) Nurturing by foster parents who have been selected

to meet his or her individual needs, and who are

provided services and support, including

specialized education, so that the child can grow

to reach his or her potential;

(3) A safe foster home free of violence, abuse,

neglect and danger;

(4) The ability to communicate with the assigned

social worker or case worker overseeing the

child's case and have calls made to the social

worker or case worker returned within a reasonable

period of time;

(5) Permission to remain enrolled in the school the

child attended before being placed in foster care,

if at all possible;

(6) Participation in school extracurricular

activities, community events, and religious

practices;

(7) Communication with the biological parents.

Communication is necessary if the child placed in

foster care receives any immunizations and if any

additional immunizations are needed, if the child

will be transitioning back into a home with his or

her biological parents;

(8) A bank or savings account established in

accordance with state laws and federal

regulations;

(9) Identification and other permanent documents,

including a birth certificate, social security

card and health records by the age of sixteen, to

the extent allowed by federal and state law;

(10) The use of appropriate communication measures to

maintain contact with siblings if the child placed in

foster care is separated from his or her siblings; and

(11) Meaningful participation in a transition plan for

those phasing out of foster care.

W. Va. Code § 49-2-126(a)(1)-(11). Additionally, there are

numerous regulations for Child Placing Agencies that govern,

inter alia, foster parent characteristics, comprehensive home

study criteria, training requirements for foster parents,

approval or denial of foster homes, evaluations of approved

foster parents, and procedures for removing children from a home

and closing the home to further foster placements. See W. Va.

Code R. § 78-2-1 et seq.

Although some control may be exerted by Necco in

carrying out the requirements which ultimately stem from the

authority of the WV DHHR and the applicable regulations, this is

not enough to create an agency relationship between Necco and

its foster parents. The law in West Virginia confirms that

An owner who engages an independent contractor to

perform a job for him or her may retain broad general

power of supervision and control as to the results of

the work so as to insure satisfactory performance of

the contract -- including the right to inspect, to

stop the work, to make suggestions or recommendations

as to the details of the work, or to prescribe

alterations or deviations in the work -- without

changing the relationship from that of owner and

independent contractor, or changing the duties arising

from that relationship.

Syl. pt. 4, Shaffer v. Acme Limestone Co. Inc., 206 W. Va.

333, 524 S.E.2d 688 (W. Va. 1999).

Necco does not exert sufficient control over the

actions of foster parents to create a master-servant or

principal-agent relationship, and so, as a matter of law, Necco

cannot be held vicariously liable for the alleged negligence of

Ms. Walls in Aubree’s death. Therefore, plaintiffs’ request for

summary judgment is denied and defendants’ request is granted.

3. Negligence of Necco

Count II of the amended complaint alleges that Necco

negligently caused Aubree’s death by failing to:

a. reasonably and/or properly assess the ability of

[the Hall and Walls families] to provide care,

support and supervision for Aubree Ingersoll, a

deceased infant;

b. properly study and assess foster parents’ homes for

the supervision and care of Aubree Ingersoll, a

deceased infant;

c. provide reasonable and proper training to [the Hall

and Walls families] for the care, supervision and

needs of Aubree Ingersoll, a deceased infant;

d. create and maintain proper documentation relevant

to foster care and related services provided to

Aubree Ingersoll, a deceased infant;

e. provide supportive services to [the Hall and Walls

families] and their households for Aubree

Ingersoll, a deceased infant;

f. provide for the care, support and personal needs of

Aubree Ingersoll, a deceased infant;

g. provide the care, support and services to Aubree

Ingersoll, a deceased infant, required or otherwise

mandated by West Virginia law; and

h. oversee and administer the transfer of Aubree

Ingersoll, a deceased infant’s, possession,

custody, control, supervision and/or care from [the

Hall family] to [the Walls family].

Am. Compl. ¶ 24. Necco asserts that there is no evidence in the

record that it breached any applicable standard of care that was

relevant to Aubree’s death. Defs.’ Mem. 24. Principally, Necco

contends that “due to the complex nature of the child welfare

arena, expert testimony is required to establish what the

standard of care is with respect to [the] allegations.” Defs.’

Mem. 27; see Syl. pt. 3, Totten v. Adongay, 175 W. Va. 634, 337

S.E.2d 2 (W. Va. 1985) (“It is the general rule that want of

professional skill can be proved only by expert witnesses.”).

Necco submits the opinion of its expert, Mr. Crawford,

as evidence that it did not violate any applicable industry

standard of care. In his expert report, Mr. Crawford states

several opinions including:

3. NECCO staff present as highly professional,

educated/degreed and appropriately credentialed

within agency and industry recognized standards, and

adhere to best practices in serving children and

families.

4. The pre-service training provided for prospective

foster parents is grounded in the PRIDE model, which

is nationally recognized as a sound model and

curriculum.

5. The additional pre-service training provided by

NECCO is also grounded in best practice and

comparably meets the standards that many other

agencies honor. In short, there was nothing heard or

seen that indicated any of the training provided was

inappropriate or anything short of best practice in

the child welfare industry.

6. The Walls family was properly trained and licensed

according to licensing and accrediting bodies.

7. It is not understood why the foster parent, Ms.

Walls, placed a rolled up blanket in the infant’s

crib, as this was specifically addressed in training

as inappropriate and a safety hazard. Placing

anything in the infant’s crib would have been

contrary to the training and instructions provided

to the foster parents.

8. While the death of this infant was a horrible

tragedy, there is nothing to indicate that NECCO was

negligent or acted in any manner other than

appropriate in the training, preparation, and

licensing of this foster family to safely care for

the child.

Crawford Report.

Plaintiffs made no response to Necco’s argument that

it be granted summary judgment as to Count II. Defs.’ Reply 10;

see generally, Pls.’ Resp. Defs.’ Mot. The failure to respond

to arguments raised in a motion for summary judgment can

indicate that the non-moving party concedes the point or

abandons the claim. Feldman v. Law Enforcement Assocs. Corp,

955 F. Supp. 2d 528, 536 (E.D. N.C. 2013) (cataloguing cases);

Casto v. Branch Banking & Trust Co., 3:16-cv-5848, 2018 U.S.

Dist. LEXIS 148, *23 (S.D. W. Va. Jan. 2, 2018). Because of

plaintiffs’ failure to respond as well as the uncontroverted

evidence produced by defendants’ expert, Mr. Crawford,

defendant’s motion for summary judgment as to Count II is

granted.

4. Res Ipsa Loquitur

Count III of the amended complaint again asserts

vicarious liability against Necco for the negligence of its

foster parents, as demonstrated res ipsa loquitur, rather than

by specific negligence. Am. Compl. ¶¶ 24-28. Plaintiffs

allege, “[d]eath does not ordinarily occur to infants safely and

reasonably put, placed or positioned in a crib to sleep,” and

that “Necco, its agents servants or employees negligently put,

placed or positioned Aubree Ingersoll, a deceased infant, in a

crib to sleep which caused her death.” Id. at ¶¶ 25, 27.

Because Necco may not be held vicariously liable for any alleged

negligence of Ms. Walls, defendants are properly granted summary

judgment as to Count III.

5. Punitive Damages

Necco seeks summary judgment on the issue of punitive

damages only to the extent that it receives summary judgment as

to the remainder of plaintiffs’ substantive claims. Defs.’ Mem.

31-32. Necco correctly asserts that West Virginia law does not

recognize an independent cause of action for punitive damages,

as such damages are a form of relief. See Miller v. Carelink

Health Plans Inc., 82 F. Supp. 2d 574, 579 n. 6 (S.D. W. Va.

2000). Because no substantive claim remains against Necco,

plaintiffs cannot maintain their claim for punitive damages and

Necco should be granted summary judgment as to Count IV.

Iv. Conclusion

In accordance with the foregoing discussion it is

ORDERED the defendants’ motion for summary judgment be, and it

hereby is, granted. The plaintiffs’ motion for summary judgment

is denied.

The Clerk is requested to transmit this order to all

counsel of record and any unrepresented parties.

DATED: July 25, 2018

LO ph TD =p —D

John T. Copenhaver, Jr.

United States District Judge