House panel to examine Vermont State Police search and rescue protocols

Lorraine Kennery, left, and her mother Gladys M. Kennery, who died in March 2007. Photo courtesy of Lorraine Kennery.

­­Editor’s note: This story was written by Cindy Ellen Hill, a law and policy writer and attorney in Middlebury.

The House Governmental Operations Committee is taking up the issue of appropriate Vermont State Police procedures in response to calls regarding missing recreationalists, according to committee member Rep. Willem Jewett, D-Addison.

Speaking at the Legislative Breakfast held at the American Legion Post in Middlebury on Feb. 20, Jewett acknowledged the “great tragedy” of the death of 19-year-old Levi Duclos of New Haven, who was found dead on the Emily Proctor Trail in the Green Mountain National Forest in Ripton on Jan. 10 after being reported as an overdue hiker the prior evening.

Criticism of the Vermont State Police’s failure to initiate a ground search until the following morning while night temperatures reached the single digits began immediately after word of Levi’s death was reported.

“Almost immediately after it occurred we in the Legislature received contacts from all over Addison County, initially from family members and friends of Levi and then spreading throughout the community, and then from Chittenden and Rutland counties as well,” Jewett said, adding that “the articles in Vermont Digger also brought a sense of urgency to the Legislature.”

Jewett is a recent addition to the House Government Operations Committee. Speaking with Chair Donna Sweaney, D-Windsor, Jewett learned that the committee has the appropriate authority to address the question of Vermont State Police protocols. On Feb. 17, committee members including Jewett met in a closed-door session with two representatives of the Vermont Department of Public Safety regarding state police response to the report that Levi Duclos had not returned from a run with his dog on the popular trail loop. The content of that meeting has not yet been released to the public, but Jewett states that the information gained was useful in guiding the committee’s steps.

“Our committee is dedicated to taking up this issue and looking at what standard to use when there is a missing recreationalist,” Jewett said. “And what that standard should be is that we should get people out looking right away. Set up a command post at the trailhead, get all the volunteers out. Get all the assets on the ground right away and then figure out the smartest way to get to the person.”

Standard of response

Legal standards as well as community values will shape the ultimate language and form of legislative response. Those legal standards will include consideration of the duty of care prescribed by the Vermont Supreme Court in the late November 2011 case of Kennery v. State of Vermont.

Relatives of elderly Gladys Kennery, http://vtdigger.org/2011/12/02/a-case-for-negligence/ who lived alone in Marlboro, had arranged for Kennery to phone them when leaving to and returning from doctor’s appointments. In March 2007, Kennery’s daughter called 9-1-1 reporting that her mother had not called to confirm her safe return home. The daughter gave explicit directions to Kennery’s house, let police know where the spare key was located, and advised that her 85-year-old mother had previously fallen when getting from her car to the house. Vermont State Police responded to the call five hours after it came in, then searched the wrong house and found no one home.

A postal delivery person discovered Kennery the next morning; she’d fallen and spent the night on her porch, and died shortly thereafter from the damage caused by hypothermia.

Law enforcement agencies frequently cite the case of Warren v. District of Columbia, 444 A2d 1 (1981) for the proposition that police have no duty to protect citizens or to respond to any given police services call. The Vermont Supreme Court found differently in the Kennery case, however, holding that when police in Vermont take action to provide aid to someone potentially in distress, they have a duty to exercise reasonable care that includes not increasing the risk of harm to the individual. The Vermont Supreme Court specifically stated that a jury could find that Vermont State Police increased the risk of harm to Gladys Kennery because leaving her outside overnight increased her risk of hypothermia.

In light of the Supreme Court’s ruling, the Department of Public Safety entered into a monetary settlement with Gladys Kennery’s family.

Search and rescue standards of other agencies in and out of Vermont emphasize a swift response in their mandates. The Vermont Aeronautics Board is required to maintain “workable plans for the immediate handling” of emergencies, meaning “plans of action for search and rescue that will mobilize all state agencies which can contribute in such emergencies … the first objective being to save human life and render prompt aid to survivors.”

The 2000 Coast Guard Search and Rescue Plan regarding overdue vessels requires personnel to “[f]ormulate a search plan. Be aggressive. Hit it hard and hit it early.” Boats that don’t come back to dock when expected, “more than any other type of case, require innovative thought and extremely careful analysis of the information and should never be taken lightly,” the plan states.

Maine state statutes mandate that the Warden Service “exercise the authority to take
reasonable steps to ensure the safe and timely recovery” of overdue hunters, anglers and other outdoor recreationalists, authorizing the wardens to “summon any person in the State to assist in search and rescue attempts.”

Jewett saw the wave of concern as representing core Vermont values, including a strong commitment to render prompt aid to outdoor recreationalists in distress. “That the death of a young man on a mountainside initiated this outpouring of concern reflects just how strong our Vermont communities are,” Jewett said.