Pace v. State Of Md.

NICOLE PACE, et al.

v.STATE OF MARYLAND, et al.

No. 496

Court Of Special Appeals Of Maryland

Filed: September 29, 2010

REPORTED

Hollander, Meredith, Sharer, J. Frederick, (Retired, Specially Assigned), JJ.

Opinion

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 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 "Epipen," i.e., 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 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 transportedby 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 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, state-wide. 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, 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 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 theresponsibility 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

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