57 P.3d 1191 (2002)

[1193] William R. Hickman, Pamela A. Okano, Reed, McClure, Seattle, WA, Gerald J. Moberg, Attorney at Law, Ephrata, WA, Diehl R. Rettig, Rettig, Osborne, Forgette, O'Donnell, Kennewick, WA, for Appellant.

William D. Marler, Bruce T. Clark, Denis W. Stearns, Marler, Clark, Seattle, WA, Charles K. Wiggins, Kenneth W. Masters, Wiggins Law Office, Bainbridge Island, WA, for Respondents.

[1192] SWEENEY, J.

The Washington Product Liability Act (Product Liability Act or Act) imposes strict liability on the manufacturer of a defective product. RCW 7.72.010(4); Hyjek v. Anthony Indus., 133 Wash.2d 414, 944 P.2d 1036 (1997). The Finley School District No. 53 prepared and sold tacos tainted with E. coli^[1] 0157:H7 bacteria. We conclude that the Product Liability Act applies to the sales of tacos from a school and that processing frozen ground beef into cooked tacos constitutes "manufacturing" as defined by the Act. We further hold that the Act imposes liability for a secondary victim—one who did not eat the tainted product but contracted E. coli poisoning from someone who did. We therefore affirm the judgment entered on the jury's verdict.

HISTORY

The Finley School District prepared and served a taco lunch for its students using frozen ground beef supplied by Northern States Beef. The District thawed and cooked the meat; drained off the fat and rinsed the meat; added refried beans, tomato paste, and seasonings; and mixed it up. It then delivered the meat mixture in pans to the schools, including Finley Elementary, for distribution from cafeterias.

Eleven children became infected with E. coli 0157:H7 bacteria in October 1998. Ten attended Finley Elementary. The eleventh was a two-year-old playmate of two of the affected students. The Benton-Franklin Health District investigated. Members of the Washington State Department of Health and the National Centers for Disease Control [1194] joined the investigation. Dr. John Kobayashi, epidemiologist for communicable diseases for the Washington State Department of Health, headed the investigation. The investigative team concluded:

As no other common school activity was identified other than eating at the school cafeteria, it is reasonable to conclude that a meal served at the school was the likely source of illness. Cattle are the known reservoir of E. coli 0157:H7. Thus, it is likely that consuming the ground beef served in the tacos was the vehicle.

Ex. 1 at 7. The team concluded that the taco meal was the "most probable source" of the outbreak—meaning a greater than 50 percent certainty. Report of Proceedings (RP) at 172.

The team concluded that two-year-old Faith Maxwell was a "secondary case." Ex. 1 at 9. Secondary cases often result from fecal-oral contamination. They generally make up from 1 to 10 percent of the cases caused by an outbreak. Faith spent considerable time with two children who ate the taco meal in question, one of whom had a confirmed case of E. coli poisoning. One of the children also spent the night at Faith's house and played with her, including dressing her up. Faith's treating physician diagnosed her with E. coli linked to the outbreak caused by the taco meal. Other investigators supported his conclusion.

PROCEEDINGS

The parents of the afflicted children (Plaintiffs) sued the District and Northern States Beef. They alleged that both the District and Northern States were manufacturers of a product (the taco filling) that was not reasonably safe. As such, both were strictly liable under the Product Liability Act for the children's harm.

Northern States Beef settled and was dismissed.

Plaintiffs moved for summary judgment against the District on the issue of liability. The trial court ruled as a matter of law that the defective "product" for the purposes of the Act was the taco filling, not the frozen meat, and that the District's processing of frozen hamburger into cooked taco filling made it a "manufacturer" under the Act. As such, it held that the District was strictly liable if the taco meals caused the E. coli outbreak. The two latter questions (whether the food was tainted and whether the tainted food was the cause of the outbreak) were left for the jury. The court granted the District's motion to bifurcate the proceedings on liability and damages. The case then went to the jury on the limited issue of whether the District's taco lunch contained E. coli and caused the children's harm. Clerk's Papers (CP) at 646-49.

Plaintiffs' proof showed that the E. coli outbreak was caused by the tacos served at Finley Elementary on October 6. The District's proof showed that its cooking procedures were more than adequate to kill any potential pathogens, including E. coli The jury was then asked to answer three questions: whether the taco filling contained E. coli; if so, whether that caused each plaintiff's illness; and, if so, what percentage of fault should be allocated to the District and the supplier.

The jury found that the taco meal did contain E. coli and was the cause of the plaintiffs' injuries. It found the District 100 percent at fault and Northern States Beef not at fault.

DISCUSSION

I. WAS THE DISTRICT A "PRODUCT MANUFACTURER" UNDER THE WASHINGTON PRODUCT LIABILITY ACT?

The Act holds manufacturers of defective products strictly liable for resulting injuries. A "product" is an object "produced for introduction into trade or commerce." RCW 7.72.010(3). A "manufacturer" is any seller of the product who "designs, produces, makes, fabricates, constructs, or remanufactures the relevant product or component part of a product before its sale to a user or consumer." RCW 7.72.010(2). This includes an original creator or intermediate seller who does more than merely pass along, unchanged, a previously packaged product. But the Act expressly excludes from "product seller" a provider of professional services. That is, one "who utilizes or sells products within the legally authorized scope of the [1195] professional practice of the provider." RCW 7.72.010(1)(b). The District argues at the outset that it falls within this exclusion as a professional provider of educational services.

But at trial the District argued that the relevant product was the frozen ground beef and Northern States was the only manufacturer. The District argued it was a mere "product seller," at best, because it did not modify this product. And, finally, as a nonmanufacturing seller, the District was not strictly liable. The trial judge rejected these arguments based on his reading of the Act.

A. Applicability of the Act.

The District now contends that there was no "product," of any kind, for the purposes of the Act because the lunches were sold only to school students and staff and not offered to the public at large. Therefore, the argument goes, it produced nothing for introduction into "trade or commerce." But we can find no such argument in this trial record.

Simply put, these substantial legal theories advanced on appeal were not urged upon the trial judge in the first instance. We need not entertain them for the first time here. Our approach is well founded and routinely applied.^[2] Issues cannot, with only limited exceptions, be raised for the first time on appeal. RAP 2.5(a);^[3] Wells v. W. Wash. Growth Mgmt. Hearings Bd., 100 Wash.App. 657, 681, 997 P.2d 405 (2000). The District argued during the summary judgment proceeding on liability that it was not a manufacturer because the product was frozen meat. The District was then a consumer or, at most, a nonmanufacturing product seller. CP at 903-09. It made no argument that it was not engaged in trade or commerce and that no product therefore came into being. Nor did it argue that it was exempt from liability as a professional services provider. CP at 903-09; CP at 438-41.

Throughout the summary judgment proceeding, counsel for the District repeatedly referred to the meat as the product:

So I think you have to go back to taking the big picture and look at it, and the big picture to look at it is there has to be something that the retailer does that qualifies as manufacturing, modification, something like that. And there just isn't in this case.

So what happens is, and the statute I think is fairly well crafted and I think really ideally fits in this case and I think may not make a difference practically in the end, because what the statute says is, "All right. If you're not a manufacturer but you're a retailer, you can still be liable. You can be liable for your negligence, that is, `We didn't cook it hot enough,'" which is entirely the case that the plaintiff has made out against the district is that they are negligent because they didn't cook out whatever [E. coli] 0157:H7 was in the product or that we cross contaminated, which would be negligent actions which would clearly fit under the statute as making us as a nonmanufacturing retailer liable, if that was proven. That's the very issue that I believe that this jury is entitled to review is that what, if anything, did the district do that would have made this product through its negligence a harmful product? Because we inherited the product how it was.

[1196] RP (Dec. 14, 2000) at 10-11 (emphasis added).

In posttrial proceedings following the adverse liability verdict, the District moved for a new trial, arguing that victim Faith Maxwell did not fall within the purview of the Act because she had no contact with the product. CP at 104-08. Again, the District did not challenge the application of the Act to either the product or itself as a product seller at trial.

We also need not entertain arguments that are patently inconsistent with the positions advanced at trial. Kohl v. Zemiller, 12 Wash.App. 370, 373, 529 P.2d 861 (1974).

That said, and in consideration of the public interest aspects of this case, we would conclude that the lunch was a product, in any event.

The District relies on McKenna v. Harrison Memorial Hospital for the proposition that, if the sale or distribution of a product is strictly incidental to the dispensing of professional services, the distributor is not subject to the Product Liability Act. McKenna v. Harrison Mem'l Hosp., 92 Wash.App. 119, 121-22, 960 P.2d 486 (1998). McKenna is distinguishable. There, a surgeon implanted a medical device, secured by screws and rods, in a patient's back. The court held that the device, including the screws and rods, was part and parcel of the professional services and not, therefore, subject to the Product Liability Act. Id. at 121, 124-25, 960 P.2d 486.

But here, the lunch was a stand-alone product. It was sold independently of any professional service. The District thawed, cooked, rinsed, drained, seasoned, and assembled taco filling from frozen ground beef. "Products" parallel to the medical device in McKenna for a school district might be rulers, pencils, paper, or chalk, distributed for a fee, incidental to the provision of educational services. So, for example, if the McKenna hospital cafeteria had sold tainted tacos, the distribution of those meals, while certainly incidental to the primary function of a hospital, would nonetheless have been the sale of a product.

When an organization such as an educational institution, medical institution, or research institution also provides food for a fee, we are not prepared to hold that those sales are so intricately tied to the provision of "services" that they are exempt from the Product Liability Act.

B. Manufacturer.

Next, the District repeats its trial contention that the relevant "product" was the frozen ground beef. And Northern States was therefore the sole "manufacturer."

Statutory construction is a question of law so review is de novo. Cockle v. Dep't of Labor & Indus., 142 Wash.2d 801, 807, 16 P.3d 583 (2001). We try to effect legislative intent. Id. And we try to avoid unlikely, absurd, or strained results. City of Walla Walla v. Topel, 104 Wash.App. 816, 820, 17 P.3d 1244 (2001).

On the merits, the District denies that it was a "manufacturer" as defined by the Product Liability Act, in any event. Procedurally, the District argues that this is a fact question for the jury and should not, therefore, have been resolved as a question of law.

As to the District's argument that the question is one of fact, we note that the material facts here were not disputed. The District conceded that it stored, thawed, cooked, drained, rinsed, seasoned, and mixed what started out as frozen ground beef. The question of what legal consequences might flow from these activities—whether this constitutes manufacturing—was then properly decided by the court as a matter of law. See, e.g., Harris v. Ski Park Farms, Inc., 120 Wash.2d 727, 736, 844 P.2d 1006 (1993).

Under the Act, a "`manufacturer' includes a product seller who designs, produces, makes, fabricates, constructs, or remanufactures the relevant product or component part of a product before its sale to a user or consumer." RCW 7.72.010(2). Since the relevant synonyms are not defined by the statute, we give them their dictionary definition. Washburn v. Beatt Equip. Co., 120 Wash.2d 246, 259-61, 840 P.2d 860 (1992).

To "design" includes "the process of selecting the means and contriving the elements, steps, and procedures for producing what will adequately satisfy some need." WEBSTER'S [1197] THIRD NEW INTERNATIONAL DICTIONARY 611 (1993). To "produce" means "to give being, form, or shape to: make often from raw materials." WEBSTER'S, at 1810. "Make" includes "to bring (a material thing) into being by forming, shaping, or altering material." WEBSTER'S, at 1363. "Fabricate" includes "to form into a whole by uniting parts." WEBSTER'S, at 811. "Construct" includes "to form, make, or create by combining parts or elements." WEBSTER'S, at 489.

Here, the District began the process with 180 pounds of frozen ground beef. The frozen beef was thawed and then cooked in a steam kettle. Once cooked, the fat was drained off. The meat was rinsed. And refried beans, tomato paste, and seasonings were added. The taco meat was later scooped onto a tortilla along with other condiments and side dishes and then served.

The District thus had a "design" for cooking this meat—its recipe. It made taco meat by combining ground beef with other ingredients. It then used the taco meat as part of its taco lunch. The District's cooking process falls neatly into each of the definitions for "produce," "make," "fabricate," and "construct." WEBSTER'S, at 1810, 1363, 811, 489.

The District was not merely a retailer. The reason for excluding nonmanufacturing retailers from strict liability is to distinguish "between those who have actual control over the product and those who act as mere conduits in the chain of distribution." Buttelo v. S.A. Woods-Yates Am. Mach. Co., 72 Wash. App. 397, 404, 864 P.2d 948 (1993). The District did not simply resell frozen ground beef, seasonings, and tortillas as a grocery store would. It took raw ingredients and made a taco lunch out of them. It then sold them.

The District is a manufacturer—a manufacturer of tacos.

II. PROXIMATE CAUSE OF FAITH MAXWELL'S INJURIES

Proximate cause is generally a question of fact. Hertog v. City of Seattle, 138 Wash.2d 265, 275, 979 P.2d 400 (1999). Proximate cause consists of two elements— cause in fact (but-for cause) and legal causation (legal policy). Schooley v. Pinch's Deli Mkt., Inc., 134 Wash.2d 468, 478, 951 P.2d 749 (1998).

Cause in fact is based on a "physical connection between an act and an injury" and is determined by the trier of fact. Id.; Hartley v. State, 103 Wash.2d 768, 778, 698 P.2d 77 (1985). Cause in fact requires a direct unbroken sequence between some act and the complained of event. Hertog, 138 Wash.2d at 282-83, 979 P.2d 400. This is generally a question for the jury.

Legal cause, on the other hand, reflects policy determinations as to how far the consequences of a defendant's acts should extend. Schooley, 134 Wash.2d at 478, 951 P.2d 749; Hartley, 103 Wash.2d at 779, 698 P.2d 77. Legal cause is a question of law. Schooley, 134 Wash.2d at 478, 951 P.2d 749.

A. Cause in Fact.

The District first says that there is not enough evidence here for a jury to find that the taco meal caused (nonstudent) Faith Maxwell's illness.

Faith's treating physician, Dr. Phillip Tarr, testified that:

In [view] of the high-frequency of infections the time-space cluster of infections in the Finley area during the week or weeks preceding her transfer to Children's, I would have—I would come to the conclusion that she was part of that same time-space cluster. The exact mechanism of her infection would be beyond my ability to render an opinion.

RP at 88-89. Dr. Kobayashi agreed with Dr. Tarr that Faith's illness was part of the same time-space cluster of the Finley E. coli outbreak. He testified that the connection between the product and Faith's illness satisfied the definition of a probable case. RP at 202.

Dr. Andrew Pavia testified that "it is extremely likely that Faith was a secondary case that resulted from the outbreak at Finley Elementary School." RP at 331. Dr. Russell Alexander testified:

Q. Are you aware that Dr. Kobayashi, Dr. Tarr, Dr. Pavia have all testified that on a more-likely-than-not basis that Faith [1198] Maxwell is a secondary case tied to this outbreak?

A. I know they have said that, and I would agree.

RP at 624.

Secondary cases are not uncommon, generally making up 1 to 10 percent of the total cases in any outbreak. RP at 623-24. Secondary infection generally results from person-to-person contact, most often via the fecal-oral route. RP at 88, 201-02, 245, 248.

To conclude that this is how Faith was infected is more than mere speculation. Faith spent time with two children who ate the taco meal. One had a confirmed case of E. coli infection. An infected child spent the night at Faith's house and played with her, including dressing her up like a baby.

These facts are consistent with the experts' description of the typical secondary infection. And the District offered no plausible alternative explanation for her illness. The jury then had adequate evidence from which to infer that Faith's illness was caused in fact by the tainted taco meal. Hanson v. Estell, 100 Wash.App. 281, 286, 997 P.2d 426 (2000).

B. Legal Cause.

The District's legal causation challenge also relies on the fact that Faith did not have contact with the product. The District contends that the Act does not then accommodate her cause of action.

The Act defines a claimant as "any person or entity that suffers harm." RCW 7.72.010(5). It also states: "A claim may be asserted under this chapter even though the claimant did not buy the product from, or enter into any contractual relationship with, the product seller." RCW 7.72.010(5). For us, this includes Faith's claim. And recent case law supports this.

In McCoy v. American Suzuki Motor Corp., Mr. McCoy was injured while attempting to render assistance to the occupants of a Suzuki Samurai that had swerved and rolled off the highway. McCoy v. Am. Suzuki Motor Corp., 136 Wash.2d 350, 353, 961 P.2d 952 (1998). Specifically, he was injured by a hit-and-run driver while returning to his vehicle some two hours after the accident. Id. Mr. McCoy filed suit against Suzuki under the Product Liability Act. Id. at 353-54, 961 P.2d 952. The court determined that the injury satisfied the test for legal cause. And a jury should determine cause in fact. Id. at 359-61, 961 P.2d 952.

There, as here, Mr. McCoy had no direct contact with the Suzuki Samurai. He was neither a driver nor a passenger. He was not struck by the Samurai. Id. at 353-54, 961 P.2d 952. The court nonetheless held there were no policy reasons demonstrating that Suzuki's "liability should be cut off as a matter of law." Id. at 360, 961 P.2d 952. Nor do we find any policy reasons to end the District's liability here.

The Act does not limit "claimants" to those who have direct contact with the product. Indeed, the Act broadly defines the class of persons who may bring a product liability claim. RCW 7.72.010(5).

Finally, the District relies on Washington State Physicians Insurance Exchange and Association v. Fisons Corp. for the proposition that the Act limits the class of people who can be "claimants." Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 858 P.2d 1054 (1993). Fisons is not applicable.

There, the issue was whether a doctor who prescribed a defective drug for a patient could recover damages from the drug's maker for his own emotional pain and suffering— all secondary to his patient's resulting injury. Id. at 318-19, 858 P.2d 1054. Here, the injuries are, first of all, physical—not emotional. And, second, the injuries proximately flow from a foreseeable source—a child who eats E. coli-tainted meat—not someone watching someone else suffer.

We affirm the judgment on the verdict.

WE CONCUR: KATO, A.C.J., and KURTZ, J.

[1] Escherichia coli.

[2] Sorrel v. Eagle Healthcare, Inc., 110 Wash.App. 290, 299, 38 P.3d 1024 (2002) ("Where the trial court had no opportunity to address the issue, we decline to consider it."); Lindblad v. Boeing Co., 108 Wash.App. 198, 207, 31 P.3d 1 (2001) ("We will not review an issue, theory, argument, or claim of error not presented at the trial court level."); Demelash v. Ross Stores, Inc., 105 Wash. App. 508, 527, 20 P.3d 447 (2001) ("We generally will not review an issue, theory or argument not presented at the trial court level."). "The purpose of this rule is to afford the trial court an opportunity to correct errors, thereby avoiding unnecessary appeals and retrials." Demelash, 105 Wash.App. at 527, 20 P.3d 447.

[3] RAP 2.5(a) provides, in relevant part:

The appellate court may refuse to review any claim of error which was not raised in the trial court. However, a party may raise the following claimed errors for the first time in the appellate court: (1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right.

The appropriate standard of review for the claimed error does not affect whether the error was in fact raised in the lower court.

38 A.3d 418 (2012)
425 Md. 145

[420] Philip J. Sweitzer, Baltimore, MD, for Petitioner.

William H. Fields, Asst. Atty. Gen. (Douglas M. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and JOHN C. ELDRIDGE, (retired, specially assigned), JJ.

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 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 [421] 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-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] [d]efendants . . . 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 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 [NSLA]. [422] 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[d] 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 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 [423] 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 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); 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 [424] 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." Ashburn 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) ("[T]here 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 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, that the State defendants may be held independently liable [425] 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)).

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 [426] 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 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 Pendleton v. State, 398 Md. 447, 921 A.2d 196 (2007), a child was [427] 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 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 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 [428] 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 statute what it says there." BedRoc Ltd., LLC v. U.S., 541 U.S. 176, 183, 124 S.Ct. 1587, 1593, 158 L.Ed.2d 338, 345 (2004), quoting from Conn. Nat'l Bank v. Germain, 503 U.S. 249 [253-54], 112 S.Ct. 1146 [1149], 117 L.Ed.2d 391 [397 (1992)]. If "the intent of Congress is clear and unambiguously expressed by the statutory language at issue, that would be the end of our analysis." Zuni Public School Dist. No. 89 v. Department of Educ., 550 U.S. 81, 127 S.Ct. 1534, 1543, 167 L.Ed.2d 449, 461 (2007); CSX Transp., Inc. v. Georgia State Bd. of Equalization, [552] U.S. [9], [20], 128 S.Ct. 467, 474, 169 L.Ed.2d 418, 429 (2007). On the other hand, the interpretation of a word or phrase as used in a statute is not always governed by a dictionary definition of the word in isolation, but "depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis." Dolan v. U.S. Postal Service, 546 U.S. 481, 486, 126 S.Ct. 1252, 1257, 163 L.Ed.2d 1079, 1087-88 (2006). Extrinsic materials, such as legislative history, "have a role in statutory interpretation only to the extent they shed a reliable light on the enacting Legislature's understanding of otherwise ambiguous terms." Exxon Mobil Corp. v. Allapattah Services, Inc., supra, 545 U.S. [546] at 568, 125 S.Ct. [2611] at 2626, 162 L.Ed.2d [502] at 526-27 [(2005)]. We have applied these same principles in construing Maryland statutes. See Comptroller v. Science Applications, 405 Md. 185, 198, 950 A.2d 766, 773 (2008)[; Dept. of Assess. & Tax. v. Nat. Bank, 310 Md. 664, 670, 531 A.2d 294, 297 (1987) ("The rules of statutory construction applied by the Supreme Court to federal statutes are not significantly different from those which we apply.").]

Turner, 406 Md. at 175-76, 957 A.2d at 988-89; see Sweeney v. Savings First Mortgage, LLC, 388 Md. 319, 327, 879 A.2d 1037, 1041 (2005) ("In interpreting federal statutory law, a court may look beyond the plain language of a statute when: 1) Congress has expressed a clear intent contrary to the statutory text; 2) literal application would frustrate the purpose of the statute; or 3) literal application would `produce an absurd result.'" (citing Holland v. Big River Minerals Corp., 181 F.3d 597, 603 n. 2 (4th Cir.1999))); see also Shaw v. Governing Board of Modesto City School Dist., 310 F.Supp. 1282, 1285 (E.D.Cal. 1970) (examining a provision in the NSLA "based upon the plain meaning of the statutory language").

The National School Lunch Act, originally enacted in 1946, created the National School Lunch Program, a federal program aimed at providing free or low-cost nutritious meals to the nation's school children. The introductory language of the statute reads:

It is declared to be the policy of Congress, as a measure of national security, to safeguard the health and well-being of the Nation's children and to encourage the domestic consumption of nutritious agricultural commodities and other food, by assisting the States, through grants-in-aid and other means, in providing an adequate supply of foods and other facilities for the establishment, maintenance, operation, and expansion of nonprofit school lunch programs.

[429] 42 U.S.C. § 1751 (2006). This opening declaration of policy makes clear that the NSLA was not designed to protect a particular subset of students, such as those with food allergies, but rather, to serve the needs of all eligible school-aged children. See Davis v. Robinson, 346 F.Supp. 847, 857 (D.R.I.1972) (noting that the aim of the 1970 amendments to the NSLA, "repeated over and over again in the Congressional history, is to combat hunger in the classroom and malnutrition."); Patrick E. Clancy & Wendy L. Wyse, Comment, Feeding the Hungry, 5 Harv. C.R.-C.L. L.Rev.440, 443 (1970) ("[The NSLA] authorizes federal funds to be spent by states for the provision of lunch for all students. . . ."); Note, The National School Lunch Program, 1970: Mandate to Feed the Children, 60 Geo. L.J. 711, 714 (1972) ("The original proponents of the [NSLA] were particularly concerned with the welfare of those children who, if left to their own resources, never would be able to afford a nutritious lunch."). Respondents emphasized in their brief that, "the beneficiaries of this statutory goal are not limited to food allergic students, but students in general, as well as their parents and, as the congressional policy makes clear, the nation as a whole." Petitioner herself acknowledges, that "[t]he legislative history of the National School Lunch Act demonstrates beyond reasonable question that. . . the larger policy goal was to provide for the general nutritional welfare of America's school age children," but, nonetheless, argues that the law imposes a mandatory duty on the State defendants to "safeguard" the nutritional needs of students with food allergies.

Before this Court,^[7] Petitioner cites to several sections of the NSLA and its regulations which, in her view, create a duty owed by the State defendants to children with food allergies to ensure that they are served school lunches that meet their individual dietary needs.^[8] It is clear to us, however, that Petitioner failed to allege a statutory duty "with certainty and definiteness" sufficient to support her cause of action. Horridge, 382 Md. at 182, 854 A.2d at 1238 (quotation omitted).

Petitioner first cites 7 C.F.R. § 210.3(b) (2006), which reads in pertinent part:

[430] (b) States. 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. . . . Each State agency desiring to administer the Program shall enter into a written agreement with the Department for the administration of the Program in accordance with the applicable requirements of this part; part 235; part 245; parts 15, 15a, and 15b, and 3015 of Department regulations; and FNS instructions.

From this section Petitioner claims "the State's obligation to every school age child is patent." What is patent, however, from this provision is only that the State oversees the administration of the program in the local schools pursuant to an agreement with the Department of Agriculture. Indeed, the NSLA is administered federally by the U.S. Department of Agriculture's Food and Nutrition Service, which provides funding and commodities to the states, which in turn disburse the items to participating local school boards. See 42 U.S.C. § 1756-1757 (2006). The Maryland Department of Education (MSDE) administers the program state-wide, COMAR 13A.06.01.01(A)(1), by disbursing federal subsidies to participating school districts, 42 U.S.C. § 1757(a) (2006), and overseeing the program through audits and inspections to ensure compliance with federal eligibility and nutritional requirements. See 7 C.F.R. § 210.18. The provision Petitioner cites merely reflects the logistics of the federal program, and does not refer to any duty towards children with special dietary needs.

Petitioner next cites 7 C.F.R. § 210.23 (2006) as demonstrating a "specific duty owed by the State to each individual student under the [P]rogram." That provision states:

(b) Civil rights. In the operation of the Program, no child shall be denied benefits or be otherwise discriminated against because of race, color, national origin, age, sex or disability. State agencies and school food authorities shall comply with the requirements of: Title VI of the Civil Rights Act of 1964; [T]itle IX of the Education Amendments of 1972; section 504 of the Rehabilitation Act of 1973; the Age Discrimination Act of 1975; Department of Agriculture regulations on nondiscrimination (7 C.F.R. parts 15, 15a, and 15b); and FNS Instruction 113-6.

This provision only requires that lunches be made available to all eligible children, regardless of certain immutable characteristics, and does not refer to food allergies. The only portion of the NSLA Petitioner presents which, in fact, mentions anything about special dietary needs is 7 C.F.R. § 210.10(g)(1) (2006). This regulation is entitled: "Nutrition standards and menu planning approaches for lunches and requirements for afterschool snacks," and subsection (g) answers the question: "What exceptions and variations are allowed in meals?" It states:

(1) Exceptions for medical or special dietary needs. 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. Substitutions must be made on a case by case basis only when supported by a statement of the need for substitutions that includes recommended alternate foods, unless otherwise exempted by FNS. Such statement must, in the case of a student with a disability, be [431] signed by a physician or, in the case of a student who is not disabled, by a recognized medical authority.

7 C.F.R. § 210.10(g)(1) (2006). This language, Petitioner contends, creates a duty for the State to "set policy for schools relating to the individual dietary needs of every student eating lunch at school." She asserts that "the purpose of the plain language of the controlling regulations is transparent: the reason special provision is made for students with disabilities is not only to accommodate those disabilities, but to protect children who are disabled and/or have "special dietary needs." On the contrary, this section is insufficient to create a statutory duty to children with special dietary needs for two reasons. First, the plain language makes clear that the entire subsection applies to the local schools, not the states, as these two entities have differing responsibilities under the NSLA and are defined differently under the statute. See 7 C.F.R. § 210.2 (2006). Second, it is clear that the language is permissive rather than mandatory, such that schools may provide substitutions for non-disabled children who have special dietary needs, but need not do so. 7 C.F.R. § 210.10(g)(1) (2006).^[9] In other words, contrary to Petitioner's argument, substitutions made for non-disabled students under this section are, in fact, only discretionary accommodations. We agree with the analysis of the intermediate appellate court; Petitioner has not persuaded us that these provisions "impose a duty upon the State defendants that would make them liable for failing to ensure that no cafeteria worker ever fed peanut butter to a child who is allergic to peanuts." Pace, 195 Md.App. at 45, 5 A.3d at 1128.

Petitioner next points to 7 C.F.R. § 210.18(g)(2), and argues that the regulation makes the State "the sole party . . . charged with the responsibility of ensuring that the work of protecting children against incidental, harmful exposure to food stuffs is delivered with requisite care. . . ." She interprets the oversight provision as "provid[ing] for administrative review, imposing specific `hands on' operational monitoring requirements upon the State," and thereby, establishing a duty owed to food-allergic children, which "literally jumps off the page." The relevant language from which Petitioner gleans this interpretation is:

(g) Critical areas of review. The performance standards listed in this paragraph are deemed critical since compliance in these areas is directly linked to the service of a reimbursable lunch.

* * *

(2) For each school reviewed, the State agency must:

(i) For the day of the review, observe the serving line(s) to determine whether all required meal elements (food items/components, menus items or other items, as applicable) as required under § 210.10 are offered.

7 C.F.R. § 210.18(g)(2) (2006). Petitioner asserts that this regulation demonstrates that the Maryland State Department of Education must "have direct operational [432] oversight and `food component' control . . . visit schools, [and] actively observ[e] the serving lines in school cafeterias." Additionally, she argues that "[T]he purpose of the [S]tate's oversight role under § 210.18(g)(2) is specific to ensuring that the protection offered to the protected class of students is delivered to that protected class." (emphasis by Petitioner). By referencing "protection" to a "protected class" we assume Petitioner means to allege that, pursuant to this regulation, the State defendants must ensure the lunchtime nutritional safety of students with food allergies. As Respondents argue, "[t]he Paces presumably see this [review] as the State's opportunity to ensure that the local school cafeteria personnel provide substituted foods for children with food allergies." There is nothing, however, in the plain language of this subsection which would impose a duty on the State to protect children with allergies from the foods that plague them.^[10] Further, any such assertion that the State does, in fact, have this duty, is belied by the fact that the regulation requires the State to engage in review only once every five-year period. 7 C.F.R. § 210.18(c)(1) (2006). This is hardly indicative of a Congressional intent that the State monitor the day-to-day placement of potential allergens on serving lines, develop a flagging regimen for allergic students, or otherwise take responsibility for the food sensitivities of particular children. Rather, it seems clear to us that the section makes provision for audits every five-years in order to ensure a school's compliance with federal meal service standards under the NSLA.

We agree with the intermediate appellate court's determination that "the statutes and regulations upon which [Petitioner] base[s] [her] claim of special duty are simply not phrased with the sort of specificity that supports the imposition of liability upon the State." Pace, 195 Md.App. at 49, 5 A.3d at 1131; c.f. Horridge, 382 Md. at 189, 193, 854 A.2d at 1245 (holding that the statute at issue made "abundantly clear as to be beyond cavil" the legislature's intent to place "specific and focused" obligations on the State to protect an identified subset of children); see Remsburg, 376 Md. at 584, 831 A.2d at 27 ("Evidence of negligence may be established by the breach of a statutory duty when the plaintiff is a member of the class of persons the statute was designed to protect and the injury was of the type the statute was designed to prevent." (internal quotation omitted)). Accordingly, Petitioner could not "identify the specific words and phrases in the NSLA that . . . obligated the State defendants to take some specific action that would have prevented Liana being fed a peanut butter sandwich by local school personnel."^[11] Pace, 195 Md.App. at 49, 5 A.3d at 1131. Instead, any duty placed on the State defendants by the statute "redounded to the general public," Pulliam, 181 Md.App. at 187, 955 A.2d at 868, and invokes our application of the public duty doctrine. Therefore, Petitioner's claim cannot be sustained as a matter of law. The NSLA does not impose a statutory duty on the State defendants to [433] identify students with special dietary needs, develop a flagging regimen, or otherwise guard against individual exposure to food allergens. In the absence of a statutory duty "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, Petitioner may not maintain a suit in negligence, and, therefore, the complaint was properly dismissed.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY PETITIONER.

[1] Anaphylaxis has been defined as "an acute, life-threatening ... allergic reaction that occurs in previously sensitized people when they are reexposed to the sensitizing antigen." The Merck Manual of Diagnosis and Therapy 1120 (Robert S. Porter et al. eds., 19th ed. 2011). Anaphylactic shock occurs when "[e]ntry of the allergen into the bloodstream provokes the release of massive amounts of histamine and other chemicals with effects on body tissues. The blood vessels widen, with a sudden severe lowering of blood pressure. Other symptoms include an itchy, raised rash (hives), broncho-spasm (constriction of the airways in the lungs), pain in the abdomen [and] swelling of the tongue or throat . . ."). The American Medical Association, Encyclopedia of Medicine 98 (Charles B. Clayman, ed. 1989).

[2] The County defendants eventually settled with Petitioner; therefore, the instant case involves only the suit against the State defendants.

[3] On December 27, 2007, Ms. Pace filed a second amended complaint. The complaint alleged that upon her return to school, Liana was seated alone during lunch time with a sign overhead that made known her peanut allergy, allegedly in violation of 7 C.F.R. § 210.23(b). On January 15, 2008, the State defendants moved to dismiss this complaint because Ms. Pace had failed to obtain leave to amend after the previous dismissal with prejudice, in violation of Maryland Rule 2-322(c). The court granted the motion and dismissed the second amended complaint on February 29, 2008. Because the propriety of this ruling is not before us, we do not address it and focus solely on the dismissal of the first amended complaint.

[4] As we have stated, "[t]his `special duty rule,' as it has been termed by the courts, is nothing more than a modified application of the principle that although generally there is no duty in negligence terms to act for the benefit of any particular person, when one does indeed act for the benefit of another, he must act in a reasonable manner." Remsburg, 376 Md. at 595, 831 A.2d at 34 (quotation omitted).

In this instant case, the trial court stated that "Plaintiff in the case sub judice concedes that the State did not have a special relationship with Plaintiff giving rise to a special duty." Also, the intermediate appellate court noted that "in the absence of any allegations of special interaction between the [Paces] and the State defendants, there was no basis for finding a duty created by a special relationship in this case." Pace, 195 Md.App. at 52, 5 A.3d at 1132-33.

[5] The intermediate appellate court has also considered the application of the public duty doctrine on several occasions. In Willow Tree Learning Center, Inc. v. Prince George's County, 85 Md.App. 508, 584 A.2d 157 (1991), a child was fatally injured while using playground equipment at a child care center. The court held that County and State regulations mandating safety inspections of playground equipment created a duty owed only to the general public and were not aimed at the protection of a specific class of individuals. Willow Tree, 85 Md.App. at 515-19, 584 A.2d at 160-63. The court emphasized that neither the State nor the County "owe any individual duty of care merely by the enactment of a general ordinance requiring safety inspections, nor by the fact that it undertook inspections for safety violations." Willow Tree, 85 Md.App. at 515, 584 A.2d at 160-61. In Pulliam v. Motor Vehicle Administration, 181 Md.App. 144, 955 A.2d 843 (2008), a licensed driver with a history of seizures and accidents struck a car, killing plaintiff's husband and two children. The plaintiff alleged negligence on behalf of the Maryland Motor Vehicle Administration (MVA) based on its statutory authority to suspend or revoke the licenses of unsafe drivers. Pulliam, 181 Md. App. at 151, 955 A.2d at 847. The Court ruled that "the state cannot be held liable in tort for its failure to follow a mandatory statute pertaining to the issuance of drivers' licenses" because the statutory scheme was designed to protect the general public, and in accordance with Pendleton and Ashburn, "in order to use a statutory duty as the foundation for a negligence claim, the statute must set forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole." Pulliam, 181 Md.App. at 186, 955 A.2d at 868 (internal quotation omitted). Therefore, the court ruled that the MVA had no duty to the individual plaintiff to ensure that the driver was capable of operating a car safely.

[6] It was also clear that there was no "special relationship" forged between the State and the appellant because there was no sufficient allegation that the State had any knowledge of the abusive propensity of the victim's roommate, nor was placing a child in foster care "an affirmative act sufficient to create a special relationship." Pendleton, 398 Md. at 484-87, 921 A.2d at 218-220.

[7] Petitioner cites several regulatory provisions on appeal that were included in her response to the motion to dismiss, but were not included within the complaint. See Hansen v. City of Laurel, 420 Md. 670, 696 n. 16, 25 A.3d 122, 139 n. 16 (2011) ("An opposition to a motion to dismiss is not a pleading."). This notwithstanding, we address these provisions to make clear that they, also, do not support Petitioner's claim that the federal law imposes a duty upon the State defendants to offer special protection to children with food allergies.

[8] Although not specifically included in her brief or petition for certiorari, Petitioner referenced 42 U.S.C. § 1758(a) (2006) during oral argument (and in the intermediate appellate and trial courts) as establishing a duty owed by the State defendants. That section reads:

§ 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. §§ 1751-1769] 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.

As the intermediate appellate court noted in the present case, although this section references 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." Pace, 195 Md.App. at 43, 5 A.3d at 1127. We agree with that analysis.

[9] As Respondents point out, recent commentary to 7 C.F.R. § 210.10 sheds light on the meaning of the largely unchanged terms by stating that 7 C.F.R. § 210.10(g) "require[s] school food authorities (SFAs) to make food substitutions for children whose disabilities restrict their diet and give[s] school food authorities discretion to make food substitutions for students with medical or other special dietary needs which do not constitute disabilities." Fluid Milk Substitutions in the School Nutrition Programs, 73 Fed.Reg. 52903 (Sept. 12, 2008) (emphasis added). Ms. Pace concedes that peanut allergies have not been held to constitute a disability, see Land v. Baptist Medical Center, 164 F.3d 423 (8th Cir. 1999), and thus it is clear that any accommodation a school gives to such students is discretionary.

[10] It is worth noting that, under 7 C.F.R. § 210.10(k)(3)(ii) (2006) "nuts and seeds and their butters" may be served to children as "meat alternatives" under the Program.

[11] After conducting our own research, our conclusion is the same as that of the intermediate appellate court, as we also "have been unable to find any reported case anywhere in the country in which a student has sued a state for monetary damages to compensate for a food-related injury that was allegedly caused by a violation of either the NSLA or regulations adopted pursuant to that statute." Pace, 195 Md.App. at 45 & n. 1, 5 A.3d at 1128 & n. 1.

2013-Ohio-4919

Wayne J. Belock, Chief Legal Counsel, Cleveland Metro. School District, 1380 East 6th Street, Room, 203, Cleveland, Ohio 4414, Joseph J. Jerse, Legal Counsel, Cleveland Metro. School District, 1111 Superior Avenue, Room 1807, Cleveland, Ohio 44114, Attorneys for Appellant.

Christian R. Patno, Nicholas M. Dodosh, Susan C. Stone, McCarthy, Lebit, Crystal & Liffman, 101 West Prospect Avenue, Suite 1800, Cleveland, Ohio 44115, Attorneys for Appellee.

BEFORE: Jones, P.J., Kilbane, J., and E.T. Gallagher, J.

JOURNAL ENTRY AND OPINION

LARRY A. JONES, Sr., P.J.

{¶1} Defendant-appellant, the Cleveland Metropolitan School District ("CMSD" or "the District"), appeals the trial court's denial of its motion to dismiss plaintiff-appellee's, Wilfredo Caraballo, complaint. We affirm in part and reverse in part.

{¶2} In 2012, Caraballo filed a nine-count complaint on behalf of his minor daughter K.C. against the CMSD and unidentified John Doe and Jane Doe individuals and John Doe entities. In the complaint, Caraballo alleged that on March 23, 2009, while eating lunch at her CMSD elementary school, K.C. was severely injured after she ate a burrito from the school cafeteria that contained a two-prong metal binder clip. Count 1 of the complaint alleged "willful, reckless and wanton misconduct"; Count 2 alleged negligence; Count 3 alleged res ipsa loquitur; Count 4 alleged breach of implied warranty of merchantability; Count 5 alleged breach of implied warranty of fitness for a particular purpose; Count 6 was a derivative claim for loss of consortium; Counts 7 and 8 alleged violations of state and federal regulations concerning school lunches and the Pure Food and Drug Act; and Count 9 alleged product liability.

{¶3} The CMSD, as a separate defendant, filed a motion to dismiss, arguing that it was immune from liability as a political subdivision and the court should dismiss the complaint for failure to state a claim upon which relief can be granted pursuant to Civ.R. 12(B)(6). The trial court denied the motion and the District filed a timely appeal. The unidentified John and Jane Does and John Doe entities are not a party to this appeal.

{¶4} The District raises one assignment of error for our review:

The trial court erred in failing to dismiss the complaint against the Cleveland Metropolitan School District on the ground of statutory immunity.

Motion to Dismiss

{¶5} The purpose of a complaint is to notify the defendant of the legal claim against him or her. Wilson v. Riverside Hosp., 18 Ohio St.3d 8, 10, 479 N.E.2d 275 (1985). A motion to dismiss for failure to state a claim is viewed with disfavor and is rarely granted. Id. citing 5 Wright & Miller, Federal Practice 593, 598, Section 1357 (1969).

{¶6} We apply a de novo standard of review to the trial court's decision on a motion to dismiss under Civ.R. 12(B)(6) for failure to state a claim upon which relief may be granted. Perrysburg Twp. v. Rossford, 103 Ohio St.3d 79, 2004-Ohio-4362, 814 N.E.2d 44, ¶ 5, citing Cincinnati v. Beretta U.S.A. Corp., 95 Ohio St.3d 416, 2002-Ohio-2480, 768 N.E.2d 1136. Under this standard of review, we must independently review the record and afford no deference to the trial court's decision. Herakovic v. Catholic Diocese of Cleveland, 8th Dist. Cuyahoga No. 85467, 2005-Ohio-5985, ¶ 13.

{¶7} In order for a trial court to dismiss a complaint under Civ.R. 12(B)(6), it must appear beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle the plaintiff to relief. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11, citing O'Brien v. Univ. Community Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975). And when considering a Civ.R. 12(B)(6) motion, a court's factual review is confined to the four corners of the complaint. Grady v. Lenders Interactive Servs., 8th Dist. Cuyahoga No. 83966, 2004-Ohio-4239, ¶ 6. Within those confines, a court accepts as true all material allegations of the complaint and makes all reasonable inferences in favor of the nonmoving party. Fahnbulleh v. Strahan, 73 Ohio St.3d 666, 667, 653 N.E.2d 1186 (1995). "[A]s long as there is a set of facts, consistent with the plaintiff's complaint, which would allow the plaintiff to recover, the court may not grant a defendant's motion to dismiss." York v. Ohio State Hwy. Patrol, 60 Ohio St.3d 143, 145, 573 N.E.2d 1063 (1991).

{¶8} Therefore, when reviewing the CMSD's motion to dismiss, we will assume the allegations surrounding K.C.'s injuries as outlined in the complaint to be true.

Political Subdivision Immunity

{¶9} The CMSD's motion to dismiss was premised on the argument that it was entitled to political subdivision immunity. Whether a political subdivision is entitled to immunity is a purely legal issue, properly determined by a court prior to trial, but preferably on a motion for summary judgment. Roe v. Hamilton Cty. Dept. of Human Servs., 53 Ohio App.3d 120, 126, 560 N.E.2d 238 (1st Dist.1998), citing Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

{¶10} To determine whether the District is immune under the Political Subdivision Tort Liability Act, as it is codified in R.C. Chapter 2744, we employ a three-tiered analysis. Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781, ¶ 7. The first tier of the analysis is the general rule that a political subdivision is immune from liability incurred in performing either a governmental function or proprietary function. Id., citing Greene Cty. Agricultural Soc. v. Liming, 89 Ohio St.3d 551, 733 N.E.2d 1141 (2000); R.C. 2744.02(A)(1).

{¶11} The parties in this case do not dispute that the District qualifies as a political subdivision as defined in R.C. 2744.01(F). Accordingly, its immunity is presumed and we proceed to the second tier. Walsh v. Mayfield, 8th Dist. Cuyahoga No. 92309, 2009-Ohio-2377, ¶ 11-12.

{¶12} "The second tier of the analysis requires a court to determine whether any of the five exceptions to immunity listed in R.C. 2744.02(B) apply to expose the political subdivision to liability." Colbert at ¶ 8. Thus, since immunity is presumed, Caraballo must demonstrate that an exception to the general rule of immunity as outlined in R.C. 2744.02(B) applies to expose the District to liability. Sims v. Cleveland, 8th Dist. Cuyahoga No. 92680, 2009-Ohio-4722, ¶ 13, citing Walsh at id.

{¶13} If any of the exceptions to immunity in R.C. 2744.02(B) apply and no defense in that section protects the political subdivision from liability, then the third tier is applied. Colbert at ¶ 9. In the third tier, a court looks to R.C. 2744.03 to determine whether any defenses in the section apply, thereby providing the political subdivision a defense against liability. Id. In other words, liability must be created under R.C. 2744.02(B) before it is necessary to apply the defenses or immunities set forth in R.C. 2744.03(A).

Exceptions to Immunity

{¶14} Counts 2 through 9 of the complaint alleged negligence, res ipsa loquitur, loss of consortium, and various breaches of implied warranties, products liability claims, and violations of state and federal regulations that govern food service.

{¶15} As previously mentioned, the school district meets tier one of the Cater analysis as a political subdivision. Next, we must determine if one of the exceptions to immunity under R.C. 2744.02(B)(1)-(5) apply. The five exceptions are: (1) negligent operation of a motor vehicle by the political subdivision's employee; (2) negligent performance of acts by an employee of a political subdivision with respect to the political subdivision's proprietary functions; (3) the political subdivision's negligent failure to keep public roads in repair; (4) negligent creation or failure to remove physical defects in buildings and grounds; and (5) where another section of the Ohio Revised Code expressly imposes civil liability on a political subdivision. Id.; Young v. Genie Industries United States, 8th Dist. Cuyahoga No. 89665, 2008-Ohio-929, ¶ 17.

{¶16} According to Caraballo, the two exceptions to immunity that apply in this case are R.C. 2744.02(B)(2) and 2744.02(B)(4).

{¶17} R.C. 2744.02(B)(2) states, in part, that "political subdivisions are liable for injury, death, or loss to person or property caused by the negligent performance of acts by their employees with respect to proprietary functions of the political subdivisions." Therefore, in order for the exception in R.C. 2744.02(B)(2) to apply, the District's provision of school lunches must be considered a proprietary function of the District. The CMSD argues that the serving of school lunches is a governmental function as set forth in R.C. 2744.02(A)(1); therefore, the exception as outlined in R.C. 2744.02(B)(2) would not apply.

{¶18} Governmental functions include "[t]he provision of a system of public education." R.C. 2744.01(C)(2)(c). R.C. 3313.81 states, in material part:

[t]he board of education of any * * * local school district may establish food service, provide facilities and equipment, and pay operating costs in the schools under its control for the preparation and serving of lunches, and other meals or refreshments to the pupils, employees of the board of education employed therein, and to other persons taking part in or patronizing any activity in connection with the schools.

{¶19} CMSD relies on the Seventh Appellate District's decision in Taylor v. Boardman Twp. Local School Dist. Bd. of Edn., 7th Dist. Mahoning No. 08 MA 209, 2009-Ohio-6528, where the court determined that although the serving of school lunches was not expressly by statute a governmental function, it still qualified as such. The Taylor court reasoned:

Although the language of R.C. 3313.81 does not necessarily require a local board of education to establish a food service, [R.C.] 3313.813(C) does obligate local boards of education to establish food service programs if certain basic conditions apply, as mandated by the "National School Lunch Act," or the "Child Nutrition Act of 1996." Sections 1751 and 1771, Title 42, U.S. Code. It can therefore be concluded that the provision of lunches is generally a necessary part of the provision of a system of public education, thus part of an obligation of sovereignty imposed on the state of Ohio. Boardman's provision of school lunches is thus a governmental function pursuant to R.C. 2744.01(C)(1)(a).

* * *

A board of education is the only entity permitted to create, supervise and regulate the provision of meals to students in school facilities. The provision of food within a school program is subject to strict rules, and is controlled by statutory mandates in terms of the program's structure and day-to-day functioning. * * * Given the foregoing, the provision of school lunches to students in school facilities is an activity not customarily engaged in by nongovernmental persons. Boardman's provision of school lunches is thus a governmental function pursuant to R.C. 2744.01(C)(1)(c).

Id. at ¶ 21-23.

{¶20} Caraballo argues that the serving of school lunches may be a proprietary function since school districts are increasingly relying on non-governmental third-party entities to deliver, prepare, and serve school lunches. As such, he should be afforded the opportunity, as the plaintiff in Taylor was, to engage in discovery. This may establish, Caraballo contends, that the CMSD's system of food delivery, preparation, and serving does not constitute a governmental function.

{¶21} We agree with Caraballo to one extent. Putting aside the question of whether Taylor is factually distinguishable from this case and the fact that the decision is not binding on this court, Taylor was not decided on a Civ.R. 12(B)(6) motion, rather, it was decided on factual questions raised by summary judgment motions pursuant to Civ.R. 56.

{¶22} At this early stage of the proceedings, we cannot say with certainty that the serving of school lunches is a governmental function; further discovery is warranted.

{¶23} Caraballo further claims that the CMSD is subject to the immunity exception in R.C. 2744.02(B)(4), which holds political subdivisions "[l]iable for injury, death, or loss to person or property that is caused by the negligence of their employees and occurs within or on the grounds of, and is due to physical defects within or on the grounds, of buildings that are used within the performance of governmental functions * * *."

{¶24} He contends that he may establish facts as alleged in the complaint by proving that the metal binder clip came to be in his child's food due to employee negligence and physical defects within or on the grounds of the school. As an example, Caraballo claims he may be able to establish that a physical defect on the grounds of the school led to the collapse of a negligently or recklessly located and/or maintained storage shelf which, in turn, led to the binder clip landing in the food preparation area. The CMSD argues that Caraballo did not properly plead this exception to immunity in his complaint because he did not allege that a physical defect on or in District property, coupled with employee negligence, led to K.C.'s injuries.

{¶25} Again, insofar as Caraballo has made a short, plain statement of his claim which, if accepted as true, would entitle him to relief, he should be permitted to engage in discovery to attempt to prove his claim.

{¶26} In regard to Caraballo's claim for loss of consortium, this claim "is derivative and, but for the primary cause of action by the plaintiff, would not exist." Moss v. Lorain Cty. Bd. of Mental Retardation, 185 Ohio App.3d 395, 2009-Ohio-6931, 924 N.E.2d 401, ¶ 32 (9th Dist.), citing Bradley v. Sprenger Ents., Inc., 9th Dist. Lorain No. 07CA009238, 2008-Ohio-1988, ¶ 14. Because Caraballo's cause of action for loss of consortium is derived from, and dependent upon, the personal injury action that arose from the harm suffered by his daughter, and we have determined that the complaint sets forth a cognizable claim against the District, the loss of consortium claim survives as well. Moss at id.

{¶27} Finally, considering Caraballo's allegations for breach of implied warranties, products liability, and violations of state and federal regulations that govern food service, at this early stage of litigation, we find that there is sufficient evidence on these claims to withstand the District's motion to dismiss.

R.C. 2744.03 Defenses

{¶28} Count 1 of Caraballo's complaint alleged a cause of action for "willful, wanton, and reckless conduct." Complaint ¶ 9, 10, 25.

{¶29} R.C. 2744.03 "lists defenses for political subdivisions once an exception to sovereign immunity has already been established." Sims, 8th Dist. Cuyahoga No. 92680, 2009-Ohio-4722, ¶ 16, citing Cater, 83 Ohio St.3d 24, 33, 697 N.E.2d 610 (1998).

{¶30} R.C. 2744.03(A)(5) provides that:

(A) In a civil action brought against a political subdivision or an employee of a political subdivision to recover damages for injury, death, or loss to person or property allegedly caused by any act or omission in connection with a governmental or proprietary function, the following defenses or immunities may be asserted to establish nonliability:

* * *

(5) The political subdivision is immune from liability if the injury, death, or loss to person or property resulted from the exercise of judgment or discretion in determining whether to acquire, or how to use, equipment, supplies, materials, personnel, facilities, and other resources unless the judgment or discretion was exercised with malicious purpose, in bad faith, or in a wanton or reckless manner.

{¶31} Caraballo alleged specifically that the District, "by and through its employees, willfully, wantonly, and recklessly failed to comply with duties they owed to a student" and "[a]s a direct and proximate result of the willful, reckless and wanton misconduct of Defendants, [K.C.] required substantial medical treatment and has incurred great physical and mental pain and suffering" and "incurred medical care, treatment and expense, incurred mental anguish and medical and other bills in excess of $13,408.44."

Complaint ¶ 8, 9, 10.

{¶32} It is well-settled that R.C. 2744.03 does not create a cause of action or separately provide a basis for liability on a political subdivision; R.C. 2744.03(A)(5) is a defense to liability but cannot be used to establish liability. Cater at 32; see Sims at id.; see also Glover v. Dayton Pub. Schools, 2d Dist. Montgomery No. 17601, 1999 Ohio App. LEXIS 3706, *10 (Aug. 13, 1999) (holding that R.C. 2744.03 does not provide a separate basis for liability against the school district and is relevant only if one of the listed exceptions to immunity in R.C. 2744.02(B) has first been found to exist.); Rush v. Mansfield, N.D.Ohio No. 1:07-CV-1068, 2011 U.S. Dist. LEXIS 13689 (Feb. 11, 2011) (noting that R.C. 2744.03(A)(5) provides defenses to liability if one of the exceptions in R.C. 2744.03(B) is implicated; it cannot be used as an independent basis to impose liability.)

{¶33} Thus, it is only after an exception to a political subdivision's immunity has been established that a court proceeds to the third tier of the analysis to determine whether a defense in R.C. 2744.03 applies to relieve the political subdivision of liability.

{¶34} As such, allegations against the District that it acted in a willful, reckless, and wanton manner may be used as a defense to liability if immunity is established, but the allegation does not create a separate cause of action against the CMSD. Therefore, the CMSD's motion to dismiss should have been granted as to Count 1 of the complaint only.

Future Claim of Immunity

{¶35} Our decision today does not mean that the CMSD is foreclosed from making future immunity arguments. The court's denial of the District's motion to dismiss triggered its right to an interlocutory appeal under R.C. Chapter 2744, but does not constitute a "final denial of immunity." Parsons v. Greater Cleveland Regional Transit Auth., 8th Dist. Cuyahoga No. 93523, 2010-Ohio-266, ¶ 15; see Hubbell v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873 N.E.2d 878 (denial of political subdivision's motion to dismiss predicated on an immunity argument is a final appealable order, but does not foreclose a future finding of immunity.)

{¶36} All that is required at this stage of the proceedings is for the court to determine whether, when viewing all factual allegations as true in the complaint, Caraballo has shown he can prove any set of facts entitling him to relief. Civ.R. 12(B)(6); see Parsons at id. When viewing the complaint in this light, Caraballo has made a colorable claim for relief. But it cannot be decided at this early stage whether the CMSD is immune from liability; further discovery is warranted to make that final determination.

{¶37} In sum, the trial court did not err in denying the District's motion to dismiss pursuant to Civ.R. 12(B)(6), except as to Count 1 of the complaint. The trial court should have granted the motion to dismiss as to Count 1 of the complaint.

{¶38} Judgment affirmed in part and reversed in part.

{¶39} Accordingly, the case remanded to the trial court for proceedings consistent with this opinion.

It is ordered that appellant and appellee split the costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

MARY EILEEN KILBANE, J., and EILEEN T. GALLAGHER, J., CONCUR.

346 F.Supp. 847 (1972)

[848] Jay C. Lipner, Joseph F. Dugan, Peter W. Thoms, Rhode Island Legal Services, Inc., Providence, R. I., Stephen R. Elias, New York City, for plaintiffs.

Richard J. Israel, Atty. Gen., W. Slater Allen, Jr., Asst. Atty. Gen., Providence, R. I., for defendants.

OPINION

PETTINE, Chief Judge.

Claiming that needy school children have a constitutional and statutory right to receive free or reduced price school lunches, plaintiffs bring this civil rights action. The action is brought on behalf of the class of impoverished school children within the State who are not provided with free or reduced price school lunches, and it has been certified as a class action.

Jurisdiction is asserted on 28 U.S.C. § 1331, § 1337, § 1343, § 2201 and § 2202. Plaintiffs seek a declaration that the refusal by defendants to establish National School Lunch Programs (NSLP's) in the neediest schools first, and provide free lunches to the neediest children first, is violative of the National School Lunch Act, (NSLA), 42 U.S.C. §§ 1757, 1758 and 1759a, and the regulations promulgated thereunder, 7 C.F.R. § 245.4. They also seek a declaration that the "arbitrary" refusal to provide such lunches in some schools, while providing them in other schools violates the Fourteenth Amendment's guarantee of equal protection of the law. They ask a permanent injunction prohibiting defendants from refusing to provide free lunches to children attending Rhode Island schools who qualify for free lunches under defendants' own free lunch criteria. They also ask a permanent injunction prohibiting defendants from refusing to establish School Lunch Programs and provide free lunches on a priority of need. Finally, they seek their costs and such further relief as the Court may deem appropriate.

Plaintiffs argue, inter alia, that as a condition for receiving federal funds under the National School Lunch Act, 42 U.S.C.A. § 1751 et seq., the entity responsible for implementation of the school lunch program within a state must assure that all poor children under its jurisdiction receive a free or reduced price lunch, 42 U.S.C.A. § 1758, 7 C.F.R. § 245.3. They assert that in Rhode Island, unlike most other states, a state agency, the Rhode Island State Agency for Elementary and Secondary Education, is the entity responsible for directly operating about 80% of all school lunch programs in the state. It is alleged that in their respective capacities, defendants Robinson and O'Connell have supervisory powers and direct control over the establishment, administration and operation [849] of the Federal school lunch program in numerous schools throughout the state of Rhode Island.

Plaintiffs claim two statutory and regulatory violations by defendants. First, they assert defendants have failed to follow the priority of need in establishing school lunch programs and providing free lunches. Second, they argue that defendants have failed to provide free lunches to members of the plaintiff class who meet the eligibility requirements for a free lunch.

They argue that defendants have violated the Constitution by conditioning the provision of free lunches on the basis of the school attended or the district in which the school is located. They argue that poor nutrition adversely affects a school child's education, that the right to equal educational opportunity is a fundamental interest, and that defendants have not shown a compelling state interest justifying this infringement on poor school children's education. Alternatively, they argue that new procedures for providing school lunches have minimized the expenditures of local school authorities who participate in the program, so that there is no rational basis for defendants' failure to provide school lunches to all needy school children.

This court has jurisdiction pursuant to 28 U.S.C. § 1343(3) to hear the claim of denial of equal protection. Ayala v. District 60 School Board of Pueblo, Colorado, 327 F.Supp. 980, 981 (D.Colo. 1971). The claims of violation of the statutes are pendant to the constitutional claim and within this Court's jurisdiction. Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970).

Defendants, do not, for the most part, dispute plaintiffs' contention that needy children are not receiving state lunches. Rather, they argue that they do not have the authority ascribed to them by plaintiffs and that "in the first instance the school committees have the ultimate power to afford or withhold lunches." Relying upon Briggs v. Kerrigan, 431 F.2d 967 (1st Cir. 1970) they urge on behalf of the school committees that lack of facilities is sufficient justification for a failure to provide lunch and that school committees can appropriate moneys for other school purposes without violating federal law. Plaintiffs respond that state officials do control the school lunch program and that, due to satellite feeding and catering programs, lack of facilities cannot be a justification for failure to provide a lunch.

Defendants have moved for summary judgment and have moved to dismiss for failure to join as indispensible parties the members of local school committees. The motions are denied for reasons which will appear in the Court's discussion of the case infra.

Named plaintiffs all have incomes below the poverty levels set by the state, making such families eligible for free or reduced price benefits under the NSLA. These lunches are not available to children in the plaintiff families, because they attend schools without a school lunch program.

National School Lunch Program

For the purposes of this opinion only a summary description of the National School Lunch Program will be given. A careful and more thorough description may be found in Briggs v. Kerrigan, 307 F.Supp. 295 (D.Mass.1969).

Under the National School Lunch Act, 42 U.S.C.A. § 1751, federal financial assistance is offered to the states to help defray the costs of serving lunches to school children, with general cash assistance paid for each meal served, special cash assistance paid for meals served free or at a reduced price, non-food assistance paid to meet the costs of equipment, and surplus commodities made available without charge.

Each federal dollar expended in the program must be matched by three state dollars. Federal funds are not available for expenses attributable to construction of or alteration of buildings or land acquisition. States who wish to participate in the program enter into written agreements with the United States Department of Agriculture (USDA). Through [850] measurement of an "assistance need rate," the matching requirement for poorer states is reduced. Thus poorer states receive greater proportional assistance than wealthier states.

Under 42 U.S.C.A. § 1757 need and attendance must be taken into account in disbursing of funds by state officials to individual schools.

Rhode Island School Lunch Programs

Any doubt that the state agency directs and controls school lunch programs in Rhode Island was removed by the action of the Rhode Island legislature, subsequent to the commencement of this lawsuit, amending R.I.G.L. 16-8-10 and making the school lunch program largely mandatory in schools throughout the state.^[1]

In Rhode Island either the state itself or the local school committee may operate the National School Lunch Program. The parties have stipulated that the School Lunch Division of the Department of Education directly employs and pays at least 904 persons, including 21 administrative personnel and 883 cooks and cook's helpers. The administrative arm of the School Lunch Division has direct responsibility and control of the hiring of personnel, buying, storage, processing, transportation, preparation and serving of food to school children in state operated programs. The School Lunch Division prepares the menu for all schools in the state operated programs, provides continuing nutritional and supervisory instruction to all persons working for the state operated programs, and conducts audits, surveys, and administrative reviews of program operations. The Coordinator of School Food Services, defendant O'Connell has direct administrative control over the Local School Directors of the state operated programs, even though such directors are not state employees.

The School Lunch Division retains control over all federal funds allocated to Rhode Island for state operated programs. No federal funds are actually disbursed to the schools. Rather, the federal funds received by the state are accounted for by a method based on the total number of lunches served as reported to the state agency by the participating schools. No individual balance sheets are kept for each school.

Checks received from student payments are transferred to the state treasury and credited to the school lunch account. Transportation companies bill the School Lunch Division directly. Other state agencies are directly responsible for parts of the state program, e. g. the Department of Administration buys the food. The School Lunch Division prepares [851] and publishes, after hearings, Regulations and Guidelines for Free and Reduced Price Lunches, which are mandatory for all school lunch programs. Rhode Island, other than Hawaii and American Samoa, is unique in its direct operation of school lunch programs.

While the parties have stipulated to statistics concerning school lunch programs within the state since 1969, for purposes of this opinion the Court will focus upon the past year. During fiscal 1971 the total number of school lunches served in Rhode Island was 8,639,262, of which 2,635,126 were free or at a reduced price, and 6,004,136 were paid. During this period, the state operated school lunch programs served 6,734,141 lunches, of which 2,463,029 were free or at a reduced price, and 4,271,112 were paid. Thus during fiscal 1971, state operated programs accounted for 78% of the total number of lunches served, 93% of the free or reduced price lunches, and 71% of the paid lunches served.

As of November, 1971, there were 503 schools in Rhode Island, of which 373 were public and 130 were private. Of these 503 schools, 31 were private schools with independent feeding programs not connected with the N.S.L.P. Of the remaining 472 schools, 269, or 57%, had school lunch programs. Of the 269 schools with school lunch programs, 219 were state operated programs. Of the 219 state operated programs, 209 were public schools with 111,902 children and 10 were private schools with 3,444 children. The remaining 50 programs of the 269 were locally operated programs.

Excluding the 31 private schools with independent feeding programs, 203 schools, or 43% of the schools in Rhode Island, were without a school lunch program. Of these 203 schools, 127 were public schools, that is, 34% of the public schools in the state did not have school lunch programs. These 127 schools enrolled approximately 43,800 students.

As of November 4, 1971, the Department of Education, in a submission to the Board of Regents, stated that there were 56 Title I needy schools, enrolling 21,175 children, without school lunch programs. During 1970-71, 33 schools were added to the school lunch program, of which 17, or 52%, were Title I schools. Of these 17, 15 were state operated programs and 2 were locally operated programs.

During fiscal 1971-72, 25 schools have been added to the school lunch program, 18 with state operated programs and 7 with locally operated programs. None of the 7 locally operated programs are Title I schools; 4 of the 18 state operated programs are Title I schools. Of the school lunch programs added this year, 16% are Title I schools.

For purposes of defining which schools are needy, the Department of Education uses Title I as a guide. According to the State Plan of Nutrition Operations for fiscal 1972, there were, as of June 25, 1971, 74 schools in Rhode Island without a food service and classified as needy. While this plan indicates that emphasis will be placed on extending the school lunch program to the neediest schools first, it is also true that defendants have never refused to establish a school lunch program whenever asked to do so, even if the requesting school is wealthier than other schools without lunch programs in the school district. The School Lunch Division does not always know whether superintendents and school committees consider relative poverty data in their decisions to expand the school lunch program. No statistical or cost analysis of alternate feeding methods has been made since 1969. There have been no feasibility studies relating to the establishment of a state kitchen for state operated programs. However, the parties have stipulated that defendants do not raise, by way of defense, limited financial resources as a reason for not expanding the school lunch program, and that needy schools may acquire almost all of their required equipment to establish a school lunch program without cost to themselves. State funds may be used for school lunch programs by local school districts.

[852] As testimony from various local school district officials establishes, it is not uncommon for a National School Lunch Program to be established in relatively wealthy schools within a given district while Title I schools in the same district go without lunch programs. The most commonly given reasons for this were lack of facilities such as lunchrooms and kitchens. Some districts had considered and rejected satellite feeding programs or installation of kitchens as too costly. It appears that while few studies have been done and little consideration given to providing lunches through a cold lunch catering program or bag lunch program, some local school officials expressed views on the problems of such a program. The foremost objection was that even a catered cold lunch program would require supervision. This supervision would entail some cost and perhaps, in Coventry, if teachers were required to supervise, renegotiation of contracts with teachers' unions. It is unclear whether the state would provide teachers aides to supervise such a program. In schools where classrooms are used as lunchrooms, the superintendent of Cranston schools expressed concern over the "health environment"—that is, the spillage of food and keeping youngsters in the room all day. One school district, Central Falls, has no lunch program in any school but sends its children home for lunch.

The statistics establish that defendants do in fact operate the great majority of school lunch programs in Rhode Island. Since May, 1970, they have not expanded the school lunch program to the neediest schools first, but have allowed expansion without regard to need. Defendants are willing to establish and operate a school lunch program in any school which requests one. There are substantial numbers of needy children in the state who attend schools without lunch programs.

Effects of NSLP on Schoolchildren

Primarily through two expert witnesses plaintiffs have attempted to demonstrate the effect not having lunch has on the education of poverty-level students. Dr. Jean Mayer^[2] testified that families which meet the Income Poverty Guidelines for free and reduced price lunches have a high proportion of their members who do not meet recommended dietary standards. A much higher proportion of poor children than of wealthier children suffer from various nutritional deficiencies related to conditions such as anemia and susceptability to illness. In the opinion of Dr. Mayer, Rhode Island families who meet the income poverty guidelines for free or reduced price school lunches run a high risk of not obtaining an adequate diet. Children of such families are more likely to have an inadequate diet than children of higher income families.

A child from a low-income family in Rhode Island or elsewhere attending a school without a lunch program is less likely to receive a nutritious lunch than his more affluent classmates. A nutritious lunch, such as those offered by the NSLP, is particularly important to a poor child in its corrective value for a more generally nutritionally inadequate diet. Statistically, even if the poor child receives a lunch from his family, it is likely to be less nutritious than a NSLP lunch. Statistically it is also more likely that poor children will get no lunch than their more affluent classmates. That a child has not brought a lunch may be virtually undetectable because the child will not, out of pride, reveal it.

[853] Dr. Richard Granger^[3] testified that hunger, whether chronic or acute, interferes with the child's ability to learn. The behavior manifestations of hunger are apathy, listlessness, inability to concentrate, short attention span, and increased irritability. A poor child, more likely to have come to school without breakfast, is more likely to be hungry. This hunger leads to concentration on food to the exclusion of less appetizing academic subjects. The hungry child is also more likely to be anemic and to suffer illnesses which result in days lost from school. The result is a cycle of hunger and poverty. Dr. Granger testified, "[W]e create a situation where the poor child is hungry and can't learn, so that in the next generation he grows up to be an adult who cannot take his productive place in society, and we end up with a child in a revolving door through which poor people come and go and the rest of us just pass them by." Tr. p. 165.

For younger children the lack of a school lunch also has psychological implications. As Dr. Mayer said,

". . . there is a feeling of benevolence in an institution that feeds you, [and] particularly for small children its important. If a school is in an area where you get a good lunch and where some adults are worrying about your getting a good lunch, this creates a very different rapport with the school than a school which is simply a place where you go and get punished or talked to if you misbehave."

Tr. p. 148

Eating a school lunch with their peers is a useful socialization experience for children. It also has a direct educational value in nutrition. The lunches served in the NSLP expose the child to a variety of nutritious foods, breaking down the tendency of children to eat a monotonous diet. Both experts testified that the nutritional value of a meal has nothing to do with whether it is hot or cold.

A nutritionist at the Providence Health Center testified that from her experience in Rhode Island she had found a higher incidence of nutritionally-related diseases such as anemia in children of low income families. It is also her experience that many of these children go to school without having had breakfast. It is her opinion that Rhode Island school children who are poor and who do not receive a NSLP lunch are less likely to be receiving adequate nutrition.

1970 Amendments to the National School Lunch Act

In 1970 Congress amended significantly the National School Lunch Act. The United States Department of Agriculture (USDA) promulgated regulations, pursuant to express statutory authorization, 42 U.S.C.A. § 1779, designed to implement these amendments. A general description of the changes follows. Rather than retaining discretion in local school authorities to establish maximum prices for reduced price lunches, in 1970 Congress set a ceiling of 20 cents on any reduced price lunch. 42 U.S.C.A. § 1758 (1970). For the first time state and local agencies are required to submit data on the lunch programs to the U.S. D.A. By January 1 of each year the state agency must submit a plan of child nutrition operations including plans to extend the program to every school in the state and to furnish a free or reduced price lunch to every needy child. 42 U.S. C.A. § 1759a(h)(1). The State is also required to pass on data collected from [854] participating schools. 42 U.S.C.A. § 1759a(h)(2), (3).

Each school authority is required to provide information on the N.S.L.P. and eligibility requirements to parents. 7 C.F.R. § 245.5 (1971). Local school authorities are forbidden from asking irrelevant information on the N.S.L.P. application form, 7 C.F.R. § 245.6(a) (1971), and on submission of information of qualifying income level and family size, the children are deemed eligible. 7 C.F.R. § 245.6(b) (1971). Practices that discriminate against needy children in the lunch program are prohibited. 42 U.S.C.A. § 1758 (1970); 7 C.F.R. § 245.8 (1971). To assist state officials in planning expansion of the program, federal funds are now appropriated a year before such funds become available. 42 U.S. C.A. § 1752 (1970). While participating states must allocate three dollars to every federal dollar, the 1970 amendment requires that a certain percentage of state matching funds must come from state revenues rather than from sums collected from school children. 42 U.S.C.A. § 1756 (1970). See generally, Note, The National School Lunch Program, 1970: Mandate to Feed the Children, 60 Geo. L.J. 711 (1972).

The heart of plaintiffs' argument is to be found in the "poverty priority" language contained in 42 U.S.C.A. § 1758, as amended. Act of May 14, 1970, Pub. L. No. 91-248, § 6(a), (b), (d), (e), 84 Stat. 210-211.

"§ 1758. Nutritional and other program requirements; free and reduced cost meal eligibility and priorities; overt identification; donation of agricultural commodities; maximum utilization of donated commodities; applicability to nonprofit private schools.

Lunches served by school participating in the school-lunch program under this chapter shall meet minimum nutritional requirements prescribed by the Secretary on the basis of tested nutritional research; except that such minimum nutritional requirements shall not be construed to prohibit the substitution of foods to accommodate the medical or other special dietary needs of individual students. Such meals shall be served without cost or at a reduced cost not exceeding 20 cents per meal to children who are determined by local school authorities to be unable to pay the full cost of the lunch. Such determinations shall be made by local school authorities in accordance with a publicly announced policy and plan applied equitably on the basis of criteria which, as a minimum, shall include the level of family income, including welfare grants, the number in the family unit, and the number of children in the family unit attending school or service institutions; but, by January 1, 1971, any child who is a member of a household which has an annual income not above the applicable family size income level set forth in the income poverty guidelines shall be served meals free or at reduced cost. The income poverty guidelines to be used for any fiscal year shall be those prescribed by the Secretary as of July 1 of such year. In providing meals free or at reduced cost to needy children, first priority shall be given to providing free meals to the neediest children. Determination with respect to the annual income of any household shall be made solely on the basis of an affidavit executed in such form as the Secretary may prescribe by an adult member of such household. No physical segregation of or other discrimination against any child shall be made by the school because of his inability to pay, nor shall there be any overt identification of any such child by special tokens or tickets, announced or published lists of names, or other means. School-lunch programs under this chapter shall be operated on a non-profit basis."

(emphasis added)

National income poverty guidelines are established annually by the Secretary of [855] Agriculture.^[4] These guidelines provide a minimum standard for those eligible for benefits; that is, a state may establish criteria for eligibility containing family size income levels above but not below this national standard. 7 C.F.R. § 245.11(a) (1971); also 7 C.F.R. § 245.3(b).

Two provisions of § 1758 arguably support the "poverty priority" urged by plaintiffs:

". . . by January 1, 1971, any child who is a member of a household which has an annual income not above the applicable family size income poverty guidelines shall be served meals free or at reduced cost. . . . In providing meals free or at reduced cost to needy children, first priority shall be given to providing free meals to the neediest children."

Crucial to plaintiff's case is the question of to whom this "poverty priority" mandate is directed: only to the voluntarily participating school, to the participating school district (with both participating and non-participating schools), or to the state school lunch program division of the Department of Education?

Prior to the 1970 Amendments, it was held that the poverty priority applied only to individual voluntarily participating schools or "attendance units". Briggs v. Kerrigan, 307 F.Supp. 295 (D.Mass.1969), aff'd, 431 F.2d 967 (1st Cir. 1970). In affirming the district court's judgment in Briggs, the First Circuit Court of Appeals, focussing on a different section of the N.S.L.P. statutes, held:

"Second, we reject plaintiffs' assertion that an absolute need priority must be read into the statute in order to give effect to the Congressional intent. The statutory provision on which plaintiffs primarily rely requires state officials to disburse funds to individual schools `taking into account need and attendance'. 42 U.S.C. § 1757. In our view, this language is addressed to cases in which the limited federal funds available under 42 U.S. C. § 1753 are insufficient to satisfy all the requests for aid from schools willing and able to participate. If, however, a school is unwilling to participate or unable because of a lack of facilities, we think § 1757 permits state officials to direct funds elsewhere. Certainly, § 1757 does not require officials to hold up the lunch program in schools throughout the state because a few relatively poor schools are unable to participate."

Pursuant to the 1970 statutory amendments, the U.S.D.A. has promulgated regulations which substituted "school food authority" for "school" wherever reference was made to local level Program obligations. "School food authority" is defined as "the governing body which is responsible for the administration of one or more schools and which has the legal authority to operate a lunch program therein." 7 C.F.R. § 210.2(p) (1971). (emphasis added) The term "school food authority" is used in the U.S.D.A. regulations effectuating the statutory poverty priority provisions:

"Each school food authority shall serve lunches free or at a reduced price to all children whom it determines, in accordance with the requirements of this part, are unable to pay the full price of the lunch. Such standards shall specify the specific criteria to be used, respectively, for free lunches and for reduced price lunches; they shall be applicable to all schools under the jurisdiction of the school food authority; and they shall provide that all children from a family meeting the eligibility standards and attending any school under the jurisdiction of the school food authority shall be provided the same benefits."

[856] 7 C.F.R. § 245.3(a)

and

"In providing free or reduced price lunches to children meeting the eligibility standards for such lunches, school food authorities shall give first priority to providing free lunches to the neediest children in the schools under their jurisdiction."

7 C.F.R. § 245.4

and

"On and after January 1, 1971, the family size income criteria included in such standards and used by the school food authority shall be such that any child who is a member of a family which has an annual income not above the applicable family size income level set forth in the income poverty guidelines prescribed by the Secretary shall be served lunches free or at a reduced price."

7 C.F.R. § 245.3

and

"When the information furnished by a family in its application indicates that the family meets the eligibility standards for either a free or reduced-price lunch, the children from such a family shall be provided the free or reduced-price lunch to which such information indicates they are entitled. If a child transfers from one school to another school under the jurisdiction of the same school-food authority, his eligibility for a free or reduced-price lunch, if previously established, shall be transferred to, and honored by, the receiving school."

7 C.F.R. § 245.6(b)

"School food authority," then, does not refer to an individual, voluntarily participating school, but to the local contracting agent to the State N.S. L.P. agency, that is, the school district. 7 C.F.R. §§ 210.2, 245.10. In Rhode Island the local contracting agents are the representatives of district school communities and school district superintendents.^[5]

While the administrative interpretation of the N.S.L.P. statutes, and the Court is particularly concerned with the interpretation of 42 U.S.C.A. § 1758, given by the Department of Agriculture regulations carries weight, it is not dispositive. See Zuber v. Allen, 396 U.S. 168, 192-194, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969); also, Rosado v. Wyman, 397 U.S. 397, 415, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). This Court must also consider the legislative history of the 1970 amendments.

The Senate Report on the funding sections of the 1970 Amendments indicates that the purpose of these amendments was

"to provide funds and authorities to the Department of Agriculture for the purpose of providing free or reduced-price meals to needy children not now being reached."

Sen.Rep. No. 91-707, 1970 U.S.Cong. & Admin.News, p. 2487

The Senate debates on the amendments, including § 1758, show a concern for the effects of malnutrition on the health and the ability to learn of the nation's schoolchildren. See Remarks of Senator Hollings, 92 Cong.Rec. S15652. These concerns are also reflected in the Hearings on Nutrition and Human Needs before the Senate Select Committee on Nutrition and Human Needs, 91st Cong. 1st Sess. (1969). The Statement of the Managers on the Part of the House on what was to be 42 U.S.C.A. § 1758, out of [857] the joint conference indicated a general intent to provide lunches to the needy:

"The conference amendment to the eligibility standard for free and reduced-price lunches makes it clear that every child from a household with an income below the poverty level shall be served free or reduced-price meals.

While it is the intent of the managers that every child from an impoverished family shall be served meals either free or at reduced cost . . . it is also the intent that free lunches be provided for the poorest of the poor and under no circumstances shall those unable to pay be charged for their lunches."

1970 U.S.Cong. & Admin.News, p. 3022

The thrust of the 1970 Amendments, repeated over and over again in the Congressional history, is to combat hunger in the classroom and malnutrition. While the original enactment of the N.S. L.P. was motivated in part by a desire to encourage domestic consumption of agricultural commodities, see Briggs v. Kerrigan, 307 F.Supp. at 300, no such concern appears in the legislative history of the 1970 Amendments.

The legislative history of the 1970 Amendments evidences a clear Congressional intent that "any child at poverty level must receive a free or reduced price lunch and priority for free lunches must be given to neediest children." Remarks of Mr. Javits, 116 Cong. Rec. 13607 (Senate April 30, 1970). Relevant portions of the legislative history are set out at length in the appendix to this opinion.

In light of this legislative history, the U.S.D.A. interpretation of § 1758 appears to be correct. In light of this history it would be less reasonable to read the mandate that any child at poverty level must receive a free or reduced price lunch to allow school boards to install national school lunch programs in the wealthier schools under their jurisdiction but not in the poorer schools. Nor would it make sense to require the states to submit plans to expand the program and to provide free or reduced price lunches to needy children if discretion was left in the individual participating schools.

Thus, defendants have violated 42 U.S.C.A. § 1758 in allowing expansion of the school lunch program within participating districts without regard to providing school lunches to the neediest schools first. Defendants have also not fulfilled their duty to communicate this priority to local school district officials or to provide cost analyses of how alternate feeding systems might work.

As to Central Falls, the school district which has chosen not to participate in any school lunch program, this Court cannot say that defendants are required as a matter of federal law to expand the N.S.L.P. to Title I schools, if any, in the district. It may be that defendants are required to do so as a matter of state law. R.I.G.L. § 16-8-10 (1972). The new state statute may require defendants to expand the lunch program to all needy schools within the state regardless of whether all local school districts have agreed to participate in the program. The statute is not one whose meaning is free from ambiguity. There is neither legislative history nor decisional law to assist this Court in construing § 16-8-10, R.I.G.L. (1972). This Court will abstain from deciding the constitutional issues raised by the Central Falls situation because "there [is] some likelihood that a decision could be rendered on state law grounds that would obviate the need for a federal constitutional decision." Wulp v. Corcoran, 454 F.2d 826 (1st Cir., 1972).

Having disposed of this case on statutory grounds, there is no occasion to reach plaintiffs' constitutional arguments. The Court would, however, like to express its feelings that it would be unfortunate, in light of the evidence of the effects of hunger and malnutrition on children, if needy children in this state were continued to be denied adequate lunches because school district officials [858] chose not to participate in the school lunch program.

Accordingly, it is declared that the refusal by defendants to establish School Lunch Programs in the neediest schools first, of the participating school districts, and to provide free lunches to the neediest children first, in participating school districts, is violative of the National School Lunch Act and the regulations promulgated thereunder.

Counsel for plaintiffs and for defendants shall submit a plan for defendants to comply with the statutory mandate without undue delay. Injunctive relief shall issue on consideration by this Court of an acceptable plan for compliance.

Plaintiffs are allowed their costs. See Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972). Counsel for plaintiffs shall submit a schedule of costs.

APPENDIX

1. Senate

From 116 Cong.Rec. 13603 et seq. (Senate April 30, 1970).

Consideration of the report of the committee of conference of the two Houses on the amendment of the Senate to the bill (H.R. 515) to amend the National School Lunch Act and the Child Nutrition Act of 1966.

Remarks of Mr. Talmadge, principal author and sponsor of the Senate bill:

"Throughout the years, changes have been made in the school lunch program. The major change was made with the passage of the Child Nutrition Act of 1966. Among other things, this act provided for pilot breakfast programs. Prior to the consideration of the pending bill, however, there has never been an overall reform of the school lunch program, and there has never before been such a concerted effort to see that a free or reduced price lunch is provided to every needy child in the Nation.

Mr. President, although the conference substitute contains several changes, it has retained intact most of the provisions of the Senate amendment. Some major provisions of the Senate amendment which were retained are as follows:

1. The restriction of the price of a reduced cost lunch to not more than 20 cents.

2. Keeping appropriations available until expended.

3. Revising the formula for apportioning non-food assistance funds and the establishment of an authorization level for non-food assistance foods.

4. Establishment of a National Advisory Council on Child Nutrition.

The conference substitute contains most of the other provisions of the Senate with only such technical modifications as were required to make it achieve its purposes. The differences are as follows:

First, the conference substitute provides for a free or reduced price lunch for each child belonging to a household whose income is below the poverty level, as determined annually by the Secretary of Agriculture, whereas the Senate amendment provided a free lunch for each child belonging to a household receiving Federal Food aid or having an income equivalent to $4,000 or less for a family of four. First priority would be given to providing free meals to the neediest children. The conferees felt that our efforts should be directed to taking care of the children at the poverty level before providing free or reduced price lunches for those above that level.

[T]he conference substitute requires the State plan to describe how the State will furnish a free or reduced price lunch—instead of free lunch only as provided by the Senate amendment — to every needy child in accordance with section 9 of the National School Lunch Act. . . .

Mr. President, the enactment of the pending legislation will be an important bench mark in the Nation's fight against hunger. This bill will be the first major antihunger bill to come out [859] of the current national concern with eradicating hunger and malnutrition." (emphasis added)

Remarks of Mr. McGovern, co-sponsor of the Senate bill and Chairman of the Select Committee on Nutrition and Human Needs:

"Mr. President, this is an historic day for the children of America. We have long said that our children are our Nation's greatest resource. Today we deal with legislation that affirms that principle; that redeems a promise made to our schoolchildren 25 years ago—a school lunch for every needy child.

The school lunch program is perhaps as successful as any Federal program. A great deal of the credit for this rests with the distinguished chairman of the Committee on Agriculture and Forestry, the Senator from Louisiana (Mr. Ellender), and the distinguished ranking minority member of the committee, the Senator from Vermont (Mr. Aiken). But the program has come to be one that serves some better than others, and some not at all. It is a program where that old saying `Them that has gets' is all too true. Two-thirds of our poor children receive no lunch because they or their schools cannot afford it—while over 17 million children from more affluent families pay their 35 cents daily and take the program for granted. Three years ago the excellent study, `Their Daily Bread,' brought this situation to our attention and made us aware of the need for legislative change in the national school lunch program. That started us on the road that led to this day. . . .

Even more important, the conference report retains the language of section 6 of S. 2548 that every needy child `shall be served meals.' This is perhaps the most important phrase in all the legislation dealing with child nutrition. It creates, as the distinguished Representative from Illinois, Mr. Pucinski, so eloquently stated it during the conference, `a right to a school lunch.' This is a right bestowed on the children of America. A right that we expect will be vigorously exercised in their behalf.

Without this vital language, and the right it creates, all our efforts at reform would be meaningless and empty. Our children would have only a promise, a hope rather than a right.

By using this language of entitlement, the Congress has made a firm commitment that it will not allow 5 million hungry schoolchildren to grow up half educated, unemployable, and dependent because they lacked proper nourishment during their formative years when they were undergoing the learning process."

(emphasis added)

Remarks of Mr. Spong, co-sponsor of the Senate bill:

"Last year, I visited a number of school lunch programs throughout the State of Virginia. I had numerous school and medical personnel tell me of the benefits of the program: That children who had been properly fed were more alert, more anxious to learn, less of a discipline problem.

Recent medical studies have tended more and more to demonstrate a direct relationship between good nutrition and mental development.

Fortunately, my State of Virginia has had a relatively high participation rate in the school lunch program — about 57 percent of all schoolchildren in the State participate.

Unfortunately, however, at least 100,000 Virginia schoolchildren who need access to the school lunch program do not now have such access.

Under the terms of the conference bill, these children could be brought under the program.

There is, it seems to me, no doubt that we need a school lunch program in every school and that every hungry child needs access to that program.

That was my purpose in cosponsoring this legislation and that is my purpose in supporting it today.

[860] The language in the conference bill is direct.

It says that as of January 1, 1971:

Any child who is a member of a household which has an annual income not above the applicable family size income level set forth in the income poverty guidelines shall be served meals at free or reduced costs.

That is the heart of this bill."

(emphasis added)

Remarks of Mr. Javits, cosponsor of the Senate bill:

"Under this standard, set in the conference report, States and local schools will no longer be able to be arbitrary in the determination of which children will receive free or reduced price meals as was the case in the past. The law will be clear: any child at poverty level must receive a free or reduced price lunch and priority for free lunches must be given to neediest children. This makes the intent of the Congress crystal clear that poor children can no longer be denied free or reduced cost lunches.

I am pleased that the conference adopted my provision which set 20 cents as the maximum cost of a reduced price lunch. The purpose of reduced cost lunches is to bring meals to children who could not afford the meal at the regular price. The previous lack of definition allowed districts to provide reduced cost meals at only a trivial reduction off the regular price. I believe that by establishing 20 cents to be the maximum cost of such lunches, participation in the lunch program by needy children will mushroom. Studies have shown that the lower the price, the greater the participation."

2. House of Representatives

From 116 Cong.Rec. 13991 et seq. (House May 4, 1970)

Consideration of the conference report on the bill (H.R. 515) to amend the National School Lunch Act and the Child Nutrition Act of 1966.

Remarks of Mr. Perkins

"Mr. Speaker, it is with great pride that I present today the conference report on H.R. 515. This bill creates a new charter for the child nutrition programs. It will strengthen the State and local administration of these programs and it will extend and improve their nutritional benefits to all children, especially to those children who come from poor families.

The history of this bill is worthy of brief review. It was first introduced nearly 2 year ago as H.R. 17873, on January 14, 1968. This action was an outgrowth of a series of hearings held by the House Education and Labor Committee on the subject of malnutrition and Federal food programs. Testimony from many groups brought out clearly the need for greatly expanded efforts to provide better nutrition for our Nation's children."

Remarks of Mr. Quie

"Much attention has been focused specifically on the new eligibility language in section 9 which states:

Free lunches shall be served to low-income children or children being eligible for school lunches.

The wording in my judgment is academic because the existing School Lunch Act, in section 9, the third sentence, now reads:

Such meals shall be served without cost or at a reduced cost to children who are determined by local school authorities to be unable to pay the full cost of the lunch.

Mr. Speaker, our action in conference takes the basic concept already in the law and expands it so that all poor children shall be served free or reduced-price meals on a standard as determined by the Secretary of Agriculture. The discretion for determination as presently written in the law remains with the local school authority.

What we did in this legislation, the conference report, is to specify a national standard that shall apply to local school boards. So, as it was written [861] previously into law, such meals free or at lowest cost shall be served, but instead of left entirely to the discretion of the local school system a child coming from a family which is below the poverty level, $3,800, nonfarm; and $3,200, farm, must be served free or lowest cost lunches. The local school authorities retain their authority to provide free or reduced cost lunches for children who come from a family whose income is above the poverty lines. . . .

We also have provisions here and language requiring that the State develop means of extending their school lunch program so that all of the schools within the State will be covered because at the present time not all of the schools are covered. This is especially difficult in some areas where the schools are extremely old. . . .

Conventional thinking in the programs for feeding children tended toward duplicating restaurant-type facilities. Many of the newer suburban high schools and even elementary schools have gone this route. The parents can and are willing to support this type of operation.

But what do you do about feeding the youngster in overcrowded, old, elementary schools in downtown areas? Time was when the children attending these schools were expected to and did go home for lunch. It might have been a good lunch of a pickup kind of lunch — or it may not have been any lunch at all, if the school is in a ghetto area.

Times have changed. Now poor families in ghetto areas have greatly expanded. Also around our old schools we also have working mothers. Many by choice, but a great many because they have to. We have heard for years about the `door-key' or `latch-key' children who, by force of circumstances, must shift for themselves quite a few hours of the day.

With the new technology, any school in this country can provide a good meal for these children — can keep them from wandering the streets or dropping into the neighborhood store for empty calories that appease hunger but do nothing for nutrition."

[1] "It is enacted by the General Assembly as follows:

SECTION 1. Section 1. Section 16-8-10 of the General Laws in Chapter 16-8, entitled "Federal Aid" is hereby amended to read as follows:

16-8-10. Mandatory school lunch programs. Commencing September 1, 1972 or commencing September 1, 1973 for any city or town whose fiscal year began prior to March 1, 1972, those schools identified by school boards to the department of education as needy schools for Title I ESEA purposes, and commencing September 1, 1973 all public elementary and secondary schools, shall be required to make Type A lunches available to students attending those schools in accordance with such rules and regulations as are adopted from time to time by the department of education. To the extent that federal, state and other funds are available, free and reduced priced Type A lunches shall be provided to all students from families which meet the current specific criteria established by federal and state regulations. The requirement that Type A lunches be provided shall apply to locally managed school lunch programs, and school lunch programs administered directly by the department of education or by any other public agency whether using school facilities or a commercial catering service. The department of education is further authorized to expand the school lunch program to the extent that federal, state and/or local funds are available by the utilization of one or more food preparation centers for delivery to participating schools for the purpose of providing meals to students on a more economical basis than could be provided by a community acting individually.

SEC. 2. This act shall take effect upon passage."

[2] Dr. Jean Mayer, Professor of Nutrition at Harvard University, is a consultant nutritionist to the Children's Hospital in Boston and author of numerous papers and books. He is experienced in the problems of nutrition and poverty and has served as National Chairman of the Council on Hunger and Malnutrition in the United States. He also has been a Special Consultant to the President of the United States and Chairman of the White House Conference on Food, Nutrition and Health, and Chairman of the Nutrition Division of the White House Conference on the Elderly. He has had experience with the National School Lunch Program.

[3] Dr. Richard Granger, a physician and pediatrician, has been a consultant to various Connecticut school systems, settlement houses, and child guidance clinics. He is the Assistant Director of the Child Studies Center of Yale University, and on the faculty of Yale University Department of Public Health and of the New Center for the Study of Education. He teaches child nutrition and general pediatric care at the Yale Medical School and was a delegate to both the White House Conference on Children and the White House Conference on Food, Nutrition, and Health.

[4] Prior to the 1970 Amendments there were varying local eligibility standards. In 1968 the U.S.D.A. published guidelines, however, these guidelines were advisory, not mandatory.

[5] Thus, under U.S.D.A. regulations it would appear that the "poverty priority" applies to all school districts which have elected to participate in the N.S.L.P. This means that these districts must provide Type A lunches to all schools within the district which contain children whose families meet the income poverty guidelines, whether or not those schools have previously participated in the program. The U.S.D.A. regulations do not appear to apply to schools in districts where the district has elected not to participate. See Note, The National School Lunch Program, 1970: Mandate to Feed the Children, 60 Geo.L.J. 711, 713 (1970).