Pace v. State

MEREDITH, J. Appellant Liana Pace (“Liana”), minor daughter of appellant Nicole Pace (“Ms. Pace”), suffered a severe allergic reaction to a peanut butter sandwich that was provided to her as part of the school lunch program at the public school in Frederick County where she was attending kindergarten. The meal was subsidized by federal funds administered by the State of Maryland pursuant to the National School Lunch Act (“NSLA”). Ms. Pace (on behalf of Liana and herself) sued the State of Maryland, the Maryland State Department of Education (“MSDE”), and the Superintendent of Schools for the ³⁴ State of Maryland (collectively referred to as “the State defendants”), appellees, in the Circuit Court for Frederick County, alleging that negligence on the part of the State defendants in failing to ensure that Liana’s school had an effective program in place to “flag” students with food allergies was a proximate cause of Liana’s injuries. The complaint also named several other defendants who are not parties to this appeal.

The count directed at the State defendants sought monetary damages in the amount of $200,000. The circuit court granted a motion to dismiss the State defendants. After the claims against the co-defendants were settled, this appeal followed. Appellants present the following question: Whether the trial court erred in granting the State Defendants’ Motion to Dismiss, either procedurally or otherwise, finding that the State had no duty of care to the Plaintiff, rather than a special or statutory duty to ensure her special dietary needs were met and to protect her from discrimination on the basis of either race or disability in the administration of the school lunch program[.] For the reasons stated herein, we answer the question in the negative and affirm.

FACTS AND PROCEDURAL HISTORY Liana was enrolled at Frederick County’s Hillcrest Elementary School (“Hillcrest”) as a kindergarten student in 2005. In September, her mother, Ms. Pace, expressly advised the school administration that Liana was extremely allergic to peanuts. For use in case Liana suffered an allergic reaction, Ms. Pace provided the administrators at Hillcrest with an “Epi-pen,” ie., a hypodermic needle used to inject a dose of the hormone epinephrine to counter an anaphylactic reaction to an allergen. On November 9, 2005, Liana went to the school cafeteria for lunch.

Because she did not have adequate funds on deposit in her cafeteria account to purchase the regular menu items offered, the cafeteria staff served her a “credit” lunch. This ³⁵ lunch was subsidized by federal funds provided to the school pursuant to the National School Lunch Program. Under the NSLA, the program is administered by the State of Maryland. When the cafeteria staff served Liana a peanut butter sandwich, the child objected that she was not permitted to eat it.

But after one of the cafeteria workers scolded Liana and commanded her to eat the sandwich, the child obeyed. Liana immediately began to experience an anaphylactic reaction. Her airway, lips, and eyelids swelled, and she became disoriented and lethargic. Half an hour later, when the school authorities contacted Ms. Pace by telephone, they were instructed to administer the Epi-pen.

The school made the injection and called for an ambulance. Liana was transported by ambulance to the Frederick County Memorial Hospital, where she was stabilized, treated, and released to Ms. Pace. According to the complaint, as a result of her ordeal, “Liana began to experience symptoms of extreme psychological perturbation and post-traumatic distress, [and] began to display regressive behavior such as thumb sucking and withdrawal.” Liana “complained of fear of returning to school.” Furthermore, when she went to the school lunchroom after the incident involving the peanut butter sandwich, she was seated alone, at a separate table pushed up against a wall, with a sign above her head declaring her peanut allergy. Liana interpreted this treatment as punishment, which caused her to blame herself for the incident, exacerbating her psychological trauma.

Around the end of 2005, Ms. Pace withdrew Liana from Hillcrest, and the pair moved to Michigan. On November 8, 2006, appellants filed a complaint in the Circuit Court for Frederick County. In addition to the State defendants, other defendants (“the Board Defendants”) were the Board of Education for Frederick County, Linda D. Burgee (Frederick County Public Schools Superintendent), Grason Jackson (Hillcrest Principal), and three unnamed cafeteria staff members. The complaint asserted a variety of claims against the Board defendants, but named the State ³⁶ defendants only in a single count alleging negligence.

The pertinent specific allegations were as follows: 19. Defendants, the State of Maryland, Grasmick and the Maryland State Department of Education 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 National School Lunch Program Act, 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. § 15 (b); 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 reactions; 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 National School Lunch Program Act. 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, ³⁷ which produced the life-threatening anaphylactic reaction and accompanying fear and severe emotional distress. On February 27, 2007, the State defendants filed a “Motion to Dismiss the Complaint, or in the Alternative, for Summary Judgment.” The State defendants argued that they were not proper parties to the action because responsibility for school meal content resided at the county level. The State defendants also argued that they were protected by sovereign immunity.

On March 15, 2007, the plaintiffs filed a response to the motion for dismissal/summary judgment. On the same day, the plaintiffs also filed a first amended complaint, which stated in the introductory paragraph that it was being filed “to correct typographical errata in the original Complaint” and that, for the most part, the “allegations of the First Amended Complaint ... incorporate the allegations of the original Complaint essentially verbatim.” The amendments did not materially alter plaintiffs’ negligence claim against the State defendants, as quoted above. In the opposition to the State defendants’ motion, appellants argued that “the specific statutory duty, imposed upon the State, to administer school lunch and free feeding programs in accordance with individual student dietary and medical needs flows directly to the State from the federal Government under 42 U.S.C. § 1751 et seq. (2006) and the implementing regulations----” Appellants quoted 7 C.F.R. § 210.3 (b) (2006 edition), which provides: “Within the States, the responsibility for the administration of the Program in schools, as defined in § 210.2, shall be in the State educational agency.” With respect to food allergies, appellants quoted 7 C.F.R. § 210.10 (g)(1), which contains this statement: Schools must make substitutions in lunches and afterschool snacks for students who are considered to have a disability under 7 C.F.R. part 15b and whose disability restricts their diet.

Schools may also make substitutions for students who do not have a disability but who cannot consume the regular ³⁸ lunch or afterschool snack because of medical or other special dietary needs. According to the appellants, “while the State may delegate core responsibilities for the day to day operation of the school lunch program, it can neither delegate away the responsibility of setting policy for administering the program, nor can it delegate away the responsibility of monitoring operational compliance with federal regulations. 7 C.F.R. § 210.18 (2006).” The appellants further argued that “the extensive federal and state statutory and regulatory regime governing the administration of school lunch programs here, clearly establishes the State’s special duty or relationship with the Plaintiff, Liana Pace.” On June 20, 2007, the circuit court held a hearing on the State defendants’ motion. The court subsequently issued a written opinion and order, docketed on July 2, 2007, dismissing the first amended complaint with prejudice as to the State defendants. The court explained: The State of Maryland [i.e., the State defendants] filed the Motion to Dismiss, which is the subject of this opinion.

The State alleges that the other named Defendants [i.e., the Board defendants] are not agents of the State and, therefore, the State cannot be held liable for their actions. Further, the State asserts the doctrine of sovereign immunity. Plaintiff contends that the State has a statutorily imposed duty to every child in Maryland to administer school lunch and a free feeding program in consideration of a child’s dietary needs. This Court finds that the State did not have a duty to Liana, and therefore, will not address the issue of sovereign immunity.

In support of its argument, the State cites Pendelton [sic] v. State of Maryland, 398 Md. 447 [ 921 A.2d 196 ] (2007). The Court finds this case instructive to the case sub judice. In Pendelton, a father filed a complaint as next friend of his son, Corey, against the State of Maryland, and various other agencies throughout Maryland. The complaint alleged negligence and battery.

The facts of the case are as follows. ³⁹ Corey was placed in a temporary shelter by the Department of Social Services. While being sheltered, Corey was sexually and physically abused by his roommate. Upon the operators of the group home learning of the abuse they assured that no further contact was made between Corey and his roommate. In its complaint, the plaintiff alleged that the State owed a duty to Corey to keep him safe while he was sheltered.

The plaintiff asserted that the State knew or should have known of the sexual tendencies inhabited [sic] by Corey’s roommate. There was no factual allegation that the State knew or should have known of the roommate’s tendencies. The State filed a Motion to Dismiss arguing that the complaint failed to state a claim upon which relief could be granted. Plaintiff argued that the State had a non-delegable duty imposed both by the statute, and the special relationship established between the State and Corey by the State having placed him in foster care.

The trial court granted the State’s Motion, and the Plaintiff appealed. The Court of Appeals affirmed the dismissal of the case, affirming that the State had no such duty or relationship with Corey. The Court, at length, discussed the role that the State had in relationship to Corey and what its duty was towards him. The public duty doctrine is “when a statute or common law ‘imposes upon a public entity a duty to the public at large, and not a duty to a particular class of individuals, the duty is not one enforceable in tort.’” Id. at 463 [ 921 A.2d 196 ] quoting Muthukumarana v. Montgomery County, 370 Md. 447 , 805 A.2d 372 (2002).

A “special relationship” is an exception to the public duty doctrine. Id. at 464 [ 921 A.2d 196 ], This relationship, and subsequent duty, is established when it can be shown that the local government “affirmatively acted to protect the specific victim or a specific group of individuals like the victim, thereby inducing the victim’s specific reliance ...” Id. quoting Ashburn v. Anne Arundel County, 306 Md. 617 , 510 A.2d 1078 (1986). Even though the State affirmatively acted to remove Corey from his home as per a statute, this did not give rise to a ⁴⁰ special duty. Id.

Plaintiff in the case sub judice concedes that the State did not have a special relationship with Plaintiff giving rise to a special duty. 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.

Plaintiff asserts that Maryland Annotated Code, Education Article, § 7-401, in conjunction ■with COMAR and multiple Federal Regulations, imposes a specific duty upon the State to protect children such as Liana. This Court finds no basis for the allegation that the State failed to act as statutorily mandated. Based on Pendleton, this Court finds that the State did not have a specific duty imposed by statute to ensure that Liana did not eat peanuts nor was a special relationship ever established to trigger such a duty. For the reasons stated above, it is ORDERED this 26th day of June, 2007 by the Circuit Court for Frederick County, Maryland, that Defendant State of Maryland’s Motion to Dismiss is hereby GRANTED; and it is further ORDERED, that the counts against Defendant State of Maryland be DISMISSED WITH PREJUDICE.

On July 12, 2007, the plaintiffs filed a motion to alter or amend the judgment, which the court denied on August 13, 2007. On December 27, 2007, the plaintiffs filed a second amended complaint, adding new defendants, new claims against the Board defendants, and new claims against the State defendants. The second amended complaint alleged that the State defendants had allowed some of the Board defendants to physically isolate Liana in her school after her allergic reaction, in violation of their duty under 7 C.F.R. § 210.23 (b). On January 15, 2008, the State defendants filed a motion to dismiss the second amended complaint, on the grounds that ⁴¹ the plaintiffs failed to obtain leave to amend after the dismissal with prejudice, as required by Maryland Rule 2-322, and that the plaintiffs’ new claim against the State defendants was barred by res judicata.

On February 20, 2008, the court held a hearing on the motion and dismissed the second amended complaint. The order was docketed on February 25, 2008. On that same day, the plaintiffs reached a settlement agreement with the remaining defendants. On March 25, 2008, those parties filed a joint stipulation of dismissal with prejudice as to the claims against the remaining parties.

The court docketed the stipulation on March 28, 2008, thereby rendering the orders as to the State defendants final. See Tierco Md., Inc. v. Williams, 381 Md. 378, 393-94 , 849 A.2d 504 (2004). This appeal followed. DISCUSSION As a preliminary matter, appellants argue that the circuit court should not have considered the State defendants’ motion to dismiss because the appellants had filed an amended complaint between the date the State filed the motion and the date of the hearing on the motion.

This argument was not raised at the time of the hearing on the motion (or at any other point during the circuit court proceedings). Consequently, the argument is not preserved for our review. Maryland Rule 8-131(a). Appellants’ primary argument is that the State defendants had a statutory duty to children with food allergies to take some action to prevent schools from feeding those children lunches containing the allergens.

Appellants argue in their brief: “In this case, the State had a duty to [Liana] to protect her as a member of a protected class of individuals, because the complained of injury and the nature of the negligence alleged went specifically to the type of injury the legislation was designed to prevent.” Our reading of the NSLA, however, leads us to conclude that it does not impose upon the State defendants a duty that would make the State defendants liable to compensate Liana for the injuries she ⁴² suffered when the Hillcrest cafeteria worker fed her a peanut butter sandwich. The Court of Appeals has held that, in cases such as this one, in which there is no dispute as to the underlying material facts, the question of whether a defendant had a duty to prevent the plaintiffs injuries can be decided as a matter of law, and appellate review of that issue is de novo. In Muthukumarana v. Montgomery County, 370 Md. 447, 472 , 805 A.2d 372 (2002), Judge Harrell wrote for the Court: In Liberto v. Holfeldt, 221 Md. 62, 67 , 155 A.2d 698, 701 (1959), we recognized that “when the facts are not disputed and it is certain that reasonable minds could draw but one inference from such facts,” the issues of duty and causation “may be resolved as a matter of law.” See also Dersookian v. Helmick, 256 Md. 627, 631 , 261 A.2d 472, 473 (1970) (quoting Liberto). We recently reaffirmed this notion in Valentine v. On Target, Inc., 353 Md. 544 , 727 A.2d 947 (1999), and explained that, “[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.” Valentine, 353 Md. at 549 , 727 A.2d at 949 .

See also Bobo v. State, 346 Md. 706, 716 , 697 A.2d 1371, 1376 (1997) (“The 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.”). Accord Pendleton v. State, 398 Md. 447, 461 , 921 A.2d 196 (2007) (“Whether a legal duty exists is a question of law, to be decided by the court.”). Because the State defendants had no direct involvement in the incident relative to Liana’s allergic reaction, and none of the school personnel were State employees, appellants have not alleged that the State defendants are vicariously liable for the errors or omissions that led to Liana being fed an inappropriate school lunch. Instead, the appellants argue that the State defendants committed independent acts of actionable ⁴³ negligence by failing to perform the State defendants’ duties under the National School Lunch Act and related regulations.

Appellants argue that a statutory duty is imposed upon the State defendants by 42 U.S.C. § 1758 (a). Although that subsection of the NSLA does mention special dietary needs, it does not mandate that the State take any particular action to ensure that a child such as Liana is never fed any food containing peanuts. Section 1758(a)(1) provides: § 1758. Program requirements (a) Nutritional requirements (1)(A) Lunches served by schools participating in the school-lunch program under this chapter [ 42 U.S.C. §§ 1751 et seq.] shall meet minimum nutritional requirements prescribed by the Secretary on the basis of tested nutritional research, except that the minimum nutritional requirements— (i) shall not be construed to prohibit the substitution of foods to accommodate the medical or other special dietary needs of individual students; and (ii) shall, at a minimum, be based on the weekly average of the nutrient content of school lunches.

(B) The Secretary shall provide technical assistance and training, including technical assistance and training in the preparation of lower-fat versions of foods commonly used in the school lunch program under this chapter, to schools