Pace Ex Rel. Pace v. State

GREENE, J. The mother of a kindergarten student who suffered a serious allergic reaction after consuming peanut butter given to her under her school’s free lunch program brought suit in the Circuit Court for Frederick County against the State of Maryland and its agents, alleging that the State’s obligations under the National School Lunch Act, 42 U.S.C. §§ 1751-1769 (2006) (“NSLA”) imposed upon the defendants a statutory duty of care to ensure that children with food allergies are not served lunches containing allergens. The trial court granted the State defendants’ motion to dismiss on the ground that the NSLA merely establishes a subsidized lunch program for the benefit all children at participating schools, and does not impose a specific statutory duty of care towards children with food allergies. The Court of Special Appeals affirmed the dismissal. After examining the statute at issue, we agree with the determinations of the trial and intermediate appellate courts and therefore also affirm the dismissal, as a negligence action may not be maintained in the absence of a demonstrable duty.

FACTS AND PROCEDURAL HISTORY Liana Pace, a five-year-old kindergarten student, suffered an anaphylactic 1 reaction after being exposed to peanut butter ¹⁵⁰ at lunchtime. It is alleged that at the beginning of the school year, Liana’s mother, Nicole Pace, informed Hillcrest Elementary School in Frederick, Maryland, about her daughter’s severe allergy to peanuts. In October, Liana’s allergist provided the school nurse with a pre-measured dose of epinephrine to be used in the event Liana was exposed to peanut products. On November 9, 2005, Liana went to the school cafeteria without a lunch or sufficient funds in her cafeteria account to purchase a lunch.

In these instances, Hillcrest Elementary would serve students a “credit lunch” consisting of either a bologna sandwich or a peanut butter sandwich. These lunches were subsidized by federal funds administered by the State of Maryland under the National School Lunch Act (“NSLA”). On this particular day, a cafeteria worker gave Liana a peanut butter sandwich. Liana resisted eating the sandwich, informing the worker that she was not allowed to have peanut butter.

The worker mistook her protests as misbehavior and ordered her to eat the sandwich. Liana complied. The child immediately began experiencing an anaphylactic reaction; her airway and eyelids began to swell, and she became lethargic and confused. Approximately a half an hour later, she was taken to the nurse’s suite and her mother was contacted.

Ms. Pace told the nurse to administer the epinephrine dose. Shortly thereafter, Ms. Pace arrived at the school and rode with her daughter in an ambulance from the elementary school to Frederick Memorial Hospital, where Liana was observed and eventually released. Following the allergic episode, Liana began to “experience symptoms of extreme psychological perturbation and post- ¹⁵¹ traumatic distress,” exhibit “regressive behavior such as thumb sucking and withdrawal” and, ultimately, fear attending school. As a result, at the close of 2005, Ms. Pace withdrew Liana from Hillcrest Elementary and moved with her daughter to Michigan to reside with Liana’s maternal grandmother.

On November 8, 2006, Nicole Pace (hereinafter “Ms. Pace” or “Petitioner”) filed suit on behalf of her daughter in the Circuit Court for Frederick County against the State of Maryland, the Maryland State Department of Education (MSDE), the State Superintendent of Schools, (hereinafter “the State defendants” or “Respondents”), the Board of Education of Frederick County, the Superintendent of the Frederick County Public Schools, the principal of Hillcrest Elementary, and three unnamed cafeteria workers (hereinafter “the County defendants”). 2 While Ms. Pace asserted a variety of claims against the County defendants, her complaint included only a single count of negligence against the State defendants, based on an alleged breach of a statutory duty under the National School Lunch Act (NSLA). It alleged in pertinent part: 19. [The State] [defendants ... are under a regulatory duty pursuant to COMAR 13A.06.01.01 to administer the State’s public school lunch programs in accordance with the provisions of the [NSLA], codified as amended at 42 U.S.C. § 1751 et seq. (2006). The statutory provisions of the Act impose an affirmative duty on the State of Maryland to tailor school lunch program menus and foods offered to individual students according to their “individual dietary and medical” needs. 42 U.S.C. § 1758 (2006).

The Code of Federal Regulations also requires monitoring by the states to ensure compliance with the statute. 7 C.F.R. § 15b; 7 C.F.R. § 210.10 (g)(1). 20. The explosive nature of peanut allergy, moreover, is specifically well-known to the State, which has developed extensive policies for the management of anaphylactic reac ¹⁵² tions; however, the State has not applied these metrics and administrative strategies to the management of individual dietary needs of students in school lunch programs, statewide. The State, therefore, has breached its statutory duty under the [NSLA]. This is all the more egregious, because the State has an extensive policy for after-the-fact management of anaphylactic reactions, yet no specific administrative protocol in place to minimize dietary exposures in school lunch programs so such exposures do not occur. 21.

As a result of the State’s negligence, school administration and cafeteria staff at the Hillcrest Elementary School did not have the proper dietary “flagging” regimen or administrative program in place, to notify cafeteria workers of Liana’s extreme allergic sensitivity. 22. As a result of the State’s negligence, school administration at the Hillcrest Elementary School did not have a uniform plan implemented to inform cafeteria workers, who served Liana the very foodstuff she could not tolerate, which produced the life-threatening anaphylactic reaction and accompanying fear and severe emotional distress. On February 27, 2007, the State defendants moved to dismiss the complaint, arguing that they were not proper parties to the action because the State’s role under the NSLA is limited to reimbursement and periodic monitoring, while the local school boards actually operate the school lunch program within their districts. They also moved to dismiss on the ground of governmental immunity.

On March 15, 2007, Ms. Pace filed a response to the motion to dismiss reiterating her allegation that the NSLA places an independent duty on the State “to administer school lunch and free feeding programs in accordance with individual student dietary and medical needs,” and cited to several federal regulations not included within the complaint. On this same day, Ms. Pace filed an amended complaint that corrected typographical errors, but otherwise made clear that it “incorporate^ the allegations of the original Complaint essentially verbatim.” The Circuit Court held a hearing on the State defendants’ motion on June 20, 2007, and in a later-filed opinion and order, determined that Ms. Pace ¹⁵³ had failed to state a claim upon which relief could be granted. The court ruled: In the case sub judice, it is not disputed that the State had a statutory obligation to establish a free feeding program and to ensure that it was implemented in the schools. This program includes a provision to ensure that the needs of children with special dietary needs are met.

However, the State did not have a specific statutory duty to control the acts of the school employees or to ensure that each child received the correct food.[ 3 ] Ms. Pace appealed the trial court’s dismissal, and the Court of Special Appeals affirmed the ruling. Pace v. State, 195 Md.App. 32 , 5 A.3d 1121 (2010). The intermediate appellate court stated: [W]e conclude that the circuit court did not err in concluding that the NSLA does not impose a special duty upon the State defendants to exercise a greater degree of care for students with food allergies than the general level of care for health and safety the State defendants exercise for all students in public schools. Pace, 195 Md.App. at 52 , 5 A.3d at 1132 .

We granted Petitioner’s writ of certiorari, Pace v. State, 418 Md. 190 , 13 A.3d 798 (2011), which asked us to determine: Whether the trial court erred in granting the State Defendants’ Motion to Dismiss, finding that the State had no duty of care to the Plaintiff’s daughter], rather than a special or statutory duty to ensure her ‘individual,’ ‘special’ dietary needs were met and to protect her from discrimination on ¹⁵⁴ the basis of either race or disability in the administration of the school lunch program[.] We answer that question in the negative and therefore affirm the judgment of the Court of Special Appeals. STANDARD OF REVIEW To sufficiently plead a cause of action for negligence in Maryland, a plaintiff must “allege with certainty and definiteness, facts and circumstances sufficient to set forth (a) a duty owed by the defendant to the plaintiff, (b) a breach of that duty and (c) injury proximately resulting from that breach.” Pendleton v. State, 398 Md. 447, 458 , 921 A.2d 196, 202-03 (2007) (emphasis in original) (quoting Scott v. Jenkins, 345 Md. 21, 28 , 690 A.2d 1000, 1003 (1997)). Thus, the initial requisite element is that “there must exist a duty which is owed by the defendant to the plaintiff to observe that care which the law prescribes in the given circumstances. . . .” Jackson v. Pennsylvania R.R. Co., 176 Md. 1, 5 , 3 A.2d 719, 721 (1939). As we have said “[t]he existence of a duty is a matter of law to be determined by the court and, therefore, is an appropriate issue to be disposed of on motion for dismissal.” Bobo v. State, 346 Md. 706, 716 , 697 A.2d 1371, 1376 (1997); accord Pendleton, 398 Md. at 461 , 921 A.2d at 204 (“Whether a legal duty exists is a question of law, to be decided by the court.” (citations omitted)); Valentine v. On Target, Inc., 353 Md. 544, 549 , 727 A.2d 947, 949 (1999) (“Generally, whether there is adequate proof of the required elements needed to succeed in a negligence action is a question of fact to be determined by the fact finder; but, the existence of a legal duty is a question of law to be decided by the court.”). ‘When reviewing a motion to dismiss for failure to state a claim, trial and appellate courts must assume the truth of all well-pleaded, relevant, and material facts in the complaint and any reasonable inferences that can be drawn therefrom.” Muthukumarana v. Montgomery County, 370 Md. 447, 474 , 805 A.2d 372, 388 (2002) (internal quotation omitted); ¹⁵⁵ accord Pendleton, 398 Md. at 458-59 , 921 A.2d at 203 ; Debbas v. Nelson, 389 Md. 364, 372 , 885 A.2d 802, 807 (2005); Horridge v. St. Mary’s County Dep’t of Soc.

Services, 382 Md. 170, 175 , 854 A.2d 1232, 1234-35 (2004); Porterfield v. Mascari II, Inc., 374 Md. 402, 414 , 823 A.2d 590, 597 (2003). “Dismissal is proper only if the alleged facts and permissible inferences, so viewed, would, if proven, nonetheless fail to afford relief to the plaintiff.” Ricketts v. Ricketts, 393 Md. 479, 492 , 903 A.2d 857, 864 (2006); accord Valentine, 353 Md. at 548 , 727 A.2d at 949 . In the instant case, the trial court dismissed the complaint for failure to state a claim upon which relief could be granted, based on the absence of a well-pled statutory duty in the State defendants to prevent the harm that occurred. We review that ruling to “determine whether the trial court was legally correct, examining solely the sufficiency of the pleading.” Bobo, 346 Md. at 709 , 697 A.2d at 1373 ; Ricketts, 393 Md. at 492 , 903 A.2d at 865 . Therefore, in order for Petitioner’s suit to have properly survived a motion to dismiss, the complaint must have sufficiently alleged that the State defendants owed Liana a duty in tort.

We shall hold that the trial court was legally correct in its dismissal, and therefore affirm under the reasoning discussed, infra. DISCUSSION Duty is a foundational element in a claim of negligence because, as we have said, “negligence is a breach of a duty owed to one, and absent that duty, there can be no negligence.” Ash burn v. Anne Arundel County, 306 Md. 617, 627 , 510 A.2d 1078, 1083 (1986); accord Pendleton, 398 Md. at 461 , 921 A.2d at 204 (“[W]hen analyzing a negligence action it is customary to begin with whether a legally cognizable duty exists.” (citations omitted)); Bobo, 346 Md. at 714 , 697 A.2d at 1375 (“[T]he existence of a duty is the threshold question.”); W. Va. Central R. Co. v. Fuller, 96 Md. 652, 666 , 54 A. 669, 671 (1903) (“[TJhere can be no negligence where there is no duty that is due----”). This Court has adopted Prosser and Keeton’s definition of duty as “an obligation, to which the law will ¹⁵⁶ give recognition and effect, to conform to a particular standard of conduct toward another.” See Remsburg v. Montgomery, 376 Md. 568, 582 , 831 A.2d 18, 26 (2003) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53 at 356 (5th ed. 1984)); Horridge, 382 Md. at 182 , 854 A.2d at 1235 ; Ashburn, 306 Md. at 627 , 510 A.2d at 1083 .

As Prosser and Keeton note, “duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53 at 358 (5th ed. 1984) (internal quotation marks omitted). We have explained that in order to determine whether a duty exists, relevant considerations necessarily include “the nature of the harm likely to result from a failure to exercise due care, and the relationship that exists between the parties.” Jacques v. First Nat’l Bank, 307 Md. 527, 534 , 515 A.2d 756, 759 (1986). As a general rule, a person “is under no special duty to protect another from ... acts by a third person, in the absence of statutes, or of a special relationship.” Horridge, 382 Md. at 183 , 854 A.2d at 1239 (quoting Scott v. Watson, 278 Md. 160, 166 , 359 A.2d 548, 552 (1976)); accord Valentine, 353 Md. at 551-52 , 727 A.2d at 950-51 ; Bobo, 346 Md. at 715 , 697 A.2d at 1376 ; Ashburn, 306 Md. at 628 , 510 A.2d at 1083 . Petitioner concedes that there was no special relationship between Liana and the State defendants in the instant case because the State was neither involved in the underlying incident, nor did the State defendants have any specific knowledge of Liana’s particular allergy. 4 Petitioner claims, however, ¹⁵⁷ that the State defendants may be held independently liable for the underlying events based upon a statutory duty owed to Liana under the NSLA.

Respondents argue, conversely, that the only duties included in the NSLA are duties owed to the general public. The public duty doctrine provides that “when a statute or common law Imposes upon a public entity a duty to the public at large ... the duty is not one enforceable in tort.’ ” Muthukumarana, 370 Md. at 486 , 805 A.2d at 395 (internal quotation omitted). A frequently cited example is that “the ‘duty’ owed by the police by virtue of their positions as officers is a duty to protect the public,” Ashburn, 306 Md. at 628 , 510 A.2d at 1084 (citations omitted), and is thereby not enforceable in tort by a member of the public claiming that the police failed to protect them, specifically. Muthukumarana, 370 Md. at 486-87 , 805 A.2d at 395 .

The public duty doctrine does not apply, however, where a court concludes that “a statute or court order has created a special duty or specific obligation to a particular class of persons rather than to the public at large.” Muthukumarana, 370 Md. at 487 , 805 A.2d at 396 (emphasis in original) (internal quotation omitted); Ashburn, 306 Md. at 635 , 510 A.2d at 1087 (noting that in order to find a duty flowing to an individual plaintiff, the statute must “set forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole” (emphasis in original) (internal quotation omitted)). Therefore, in order to invoke a statutory duty as grounds for a negligence claim, “the plaintiff must show that it was within the class of persons the legislation was intended to protect and that the alleged injury was the type of harm which the statute was intended to prevent.” Remsburg, 376 Md. at 584 , 831 A.2d at 27 (quoting Geo. Byers Sons, Inc. v. East Europe Import Export, Inc., 463 F.Supp. 135, 138 (D.Md.1979)). ¹⁵⁸ This Court has analyzed this requirement on several occasions, and each party in the instant case touts one of our precedents, explained infra, as applicable to the statutory language at issue. Petitioner argues that she has satisfied her burden to show that the NSLA was intended to protect children with special dietary needs and that the harm Liana suffered was of the type the statute was designed to prevent.

In this argument, she relies on our holding in Horridge v. St. Mary’s County Department of Social Services, 382 Md. 170 , 854 A.2d 1232 (2004). In Horridge we determined that the complaint at issue presented a well-pled allegation of a statutory duty owed by the State to a specific class of individuals. Under the facts presented in the pleading, a father who was aware that his nineteen-month-old son was being abused by the child’s mother or her boyfriend, repeatedly reported the attacks to the Department of Social Services. Horridge, 382 Md. at 176 , 854 A.2d at 1235 .

In response, however, the state agency engaged in only cursory investigations of his allegations, accused Mr. Horridge of being a “disgruntled parent,” and finally directed him to stop calling the Department. Horridge, 382 Md. at 177 , 854 A.2d at 1235 . Then, tragically, eight days after the last report was made and ignored, the child was beaten to death. Horridge, 382 Md. at 177 , 854 A.2d at 1236 .

The trial court granted the State defendants’ motion to dismiss for failure to state a claim upon which relief could be granted, noting that any statutory duty to protect children identified as being abused was owed to the public generally and, therefore, was not enforceable in tort. Horridge, 382 Md. at 175, 186-87 , 854 A.2d at 1241 . This Court reversed, noting that under the pertinent statute, Maryland Code § 7-706 of the Family Law Article, the Department of Social Services was required to respond to each reported incident of child abuse or neglect and take affirmative steps, including actually seeing the child and deciding on the safety of the child within 24 hours of a report. Horridge, 382 Md. at 184-85 , 854 A.2d at 1240 .

It was clear that the statute’s “essential purpose ... was to protect a ¹⁵⁹ specific class of children, identified or identifiable before the fact from statutorily mandated reports, from a specific kind of harm likely to occur if the statutory duty is ignored.” Horridge, 382 Md. at 192 , 854 A.2d at 1244 . We explained that, unlike statutes which create only a public duty: The duties imposed on DSS by FL § 5-706 and the implementing regulations of the Department of Human Resources are far more specific and focused. They require a prompt investigation of each reported incident of child abuse. The duty to act is mandatory; the steps to be taken are clearly delineated; and, most important, the statute makes clear in several places that the sole and specific objective of the requirement is the protection of a specific class of children — those identified in or identifiable from specific reports made to DSS and those also found in the home or in the care or custody of the alleged abuser.

This is not an obligation that runs to everyone in general and no one in particular. It runs to an identified or identifiable child or discrete group of children. Horridge, 382 Md. at 189-90 , 854 A.2d at 1243 (emphasis in original); c.f. Hayes v. State, 183 Md.App. 742, 754, 756 , 963 A.2d 271, 278, 280 (2009) (holding that the same statute discussed in Horridge “does not create a legally cognizable duty to a parent accused of abuse,” as it “would not further the protection of children from abuse or neglect.”).

The State defendants, in the instant case, by contrast, argue that their responsibility under the NSLA is unlike that presented in Horridge , but rather, is analogous to those statutes interpreted in our case law to invoke the public duty doctrine and thereby bar tort claims by an individual plaintiff. 5 In ¹⁶⁰ Pendleton v. State, 398 Md. 447 , 921 A.2d 196 (2007), a child was abused by a roommate after he was placed by the State into a duly licensed group home. The victim’s father, as next friend, argued on behalf of his son that the State owed a duty to the child to ensure his safety while in the group home. As support for this assertion, he cited Maryland Code (1984, 1999 Repl. Vol), § 5-526(c) of the Family Law Article, which provided: (c) Compliance with licensing laws — The Department, or the Department’s designee, may not place a child in a residential group home or other facility that is not operating in compliance with applicable State licensing laws.

Pendleton, 398 Md. at 466 , 921 A.2d at 207 . We held that the statute did not create a duty to individual children. Rather, we explained: Child welfare services pursuant to statute are services to the general public. The State, by creating a program of such services, available to the general public, does not create a special relationship to any particular individual.

Generally, without factual allegations of some other affirmative act beyond that required under the general program, no ¹⁶¹ common law special relationship to any specific individual normally will result. As we said in Muthukumarana “[t]o find otherwise, by equating a duty to act with the provision of a general public service, might jeopardize the availability of those services in the first instance.” Pendleton, 398 Md. at 487-88 , 921 A.2d at 220-21 (citations omitted). Further, the plaintiff did not allege that the State was negligent in licensing or monitoring the group home, and therefore, there were “no well-pled factual allegations that the State failed to comply with a specific statutory requirement.” Pendleton, 398 Md. at 470 , 921 A.2d at 210 . 6 In Ashburn v. Anne Arundel County, 306 Md. 617 , 510 A.2d 1078 (1986), we rejected the contention that a provision in the Transportation Article, which set forth procedures for officers encountering intoxicated drivers, created a duty to a pedestrian who was injured by a drunk driver after an officer detected the driver’s condition but failed to prevent him from operating the vehicle after the encounter. We emphasized that, generally, an officer owes no duty in tort to an individual victim because “the ‘duty’ owed by the police by virtue of their positions as officers is a duty to protect the public, and the breach of that duty is most properly actionable by the public in the form of criminal prosecution or administrative disposition.” Ashburn, 306 Md. at 628 , 510 A.2d at 1084 (citations omitted).

We reiterated that in order for a statute to create a duty in tort it “must set forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole.” Ashburn, 306 Md. at 635 , 510 A.2d at 1087 (emphasis in original) (internal quotation omitted); see Muthukumarana, 370 Md. at 499-500 , 805 A.2d at 403 (noting that any statutory duty imposed on 911 telephone operators ¹⁶² was a duty to the public at large and did not allow for suit by an individual claimant). In light of the foregoing precedents, we now turn to the federal statute at issue in the instant case, interpreting it according to generally accepted rules of statutory construction. As we said in Turner v. Kight, 406 Md. 167 , 957 A.2d 984 (2008): The rules governing the construction of Federal statutes are well-established. The preeminent canon requires the court to “presume that [the] legislature says in a statute what it means and means in a