This appeal by the Department followed. The death of a child under the grievous circumstances presented here evokes profound sympathy for the child's family, especially his parents, whose pain and anguish can scarcely be imagined. Our duty, however, is to determine whether, as a matter of law, the doctrine of sovereign immunity bars plaintiffs' tort suit for damages against the Department. Analyzed dispassionately, the law dictates that sovereign immunity applies. The licensing and inspection of day care facilities are inherently governmental functions which find no private analog or duty of care in our common law.
Sovereign immunity protects the state from suit unless immunity is expressly waived by statute.
LaShay v. Department of Social and Rehabilitation Servs. The question whether the State may be liable in tort for its allegedly negligent inspection of private facilities is not one of first impression in Vermont. The argument is unpersuasive. The Department's regulations, adopted pursuant to the Vermont Administrative Procedure Act, have the full force and effect of law. In contrast, the State is given a regulatory enforcement role.