Wednesday, May 29, 2019

SCOVT affirms SLAPP orders striking invasion of privacy claim; reverses trial court refusal to award attorney fees paid by insurer.


Garrett M. Cornelius v. The Chronicle, Inc., 2019 VT 4 [filed 1/25/2019]

REIBER, C.J. These consolidated cases raise issues concerning Vermont’s antiSLAPP (strategic lawsuit against public participation) statute, 12 V.S.A. § 1041. Plaintiff Garrett Cornelius filed suit alleging invasion of privacy by newspaper, the Chronicle, after newspaper published two articles containing information about plaintiff. In a series of orders, the trial court granted newspaper’s motions to strike the claims under the anti-SLAPP statute and awarded newspaper a small fraction of the attorney’s fees it sought. Plaintiff appeals the court’s orders striking his claims and newspaper appeals the amount of attorney’s fees. We conclude that the claims were properly stricken under the anti-SLAPP statute and that the court erred in limiting the attorney’s fees award. Therefore, we affirm in part and reverse and remand in part.


The award of fees is mandatory when a motion to strike is granted.  The court erroneously reasoned that because newspaper’s insurer was paying the bulk of the fee, newspaper was entitled only to an award for what it paid out of pocket. Courts from Massachusetts and California—states whose anti-SLAPP statutes were used as models for the Vermont statute—agree that attorney’s fees should be granted regardless of whether the fees are paid for by insurance or a third party. See Felis, ¶ 31 (explaining that Vermont statute was based on California statute and contains language from Massachusetts statute). We conclude that the court improperly limited the attorney’s fees to the insurance deductible. The orders striking plaintiff’s complaint are affirmed. The order regarding attorney’s fees is reversed and remanded for further proceedings consistent with this decision.

SCOVT reverses drug conviction because evidence gathered after police determined defendant was not operating under the influence should have been suppressed.


State v. Nichole L. Dubaniewicz, 2019 VT 13 [filed 3/1/2019]

SKOGLUND, J. Defendant, Nichole Dubaniewicz, appeals her conviction for one count of possession of one gram or more of heroin. We find that the trial court erred in denying defendant’s motion to suppress, and therefore we reverse.

Because all evidence gathered after the sergeant determined that defendant was not operating under the influence should have been suppressed, including all of the heroin discovered, we reverse defendant’s conviction of one count of possession of one gram or more of heroin, under 18 V.S.A. § 4233(a)(3). Reversed

SCOVT vacates conviction under Rule 12(d) for lack of evidence of knowing possession of drug found in car


State v. Robert Scales, 2019 VT 7 [filed 2/2/2019]

REIBER, C.J. Defendant Robert Scales appeals the trial court’s denial of his motion to suppress and dismiss and his motion to dismiss for lack of a prima facie case. We reverse.

We agree with defendant that there was insufficient evidence to show he had any connection with the drugs except for his presence in the car. If anything, the evidence presented at the hearing—which included testimony that the bag also contained female clothing and a parking ticket associated with the driver—tended to show that the bag and its contents did not belong to defendant. The permissive inference alone, or taken together with the court’s findings, were insufficient to establish guilt or an element of the offense. See V.R.E. 303(d).

Thus, the State failed to meet its burden under Rule 12(d), and the court erred in denying the motion to dismiss for lack of a prima facie case. The motion to dismiss is reversed and the defendant’s conviction is vacated.

DIvided court reverses order declining to terminate father’s parental rights.

In re N.L., Juvenile, 2019 VT 10 [filed  2/8/2019]

SKOGLUND, J. This case concerns petitions to terminate the parental rights of both mother and father with respect to their child, N.L. The family division of the superior court granted the petition to terminate mother’s parental rights but denied the petition concerning father. Mother appeals the termination of her parental rights, and N.L. appeals the court’s decision not to terminate father’s parental rights. We affirm the termination of mother’s parental rights and reverse the court’s order declining to terminate father’s parental rights. We remand the matter for the limited purpose of directing the family division to grant the petition to terminate father’s parental rights.

The family division’s order terminating mother’s parental rights is affirmed. The family division’s order declining to terminate father’s parental rights is reversed, and the matter is remanded for the court to grant the petition to terminate father’s parental rights.

ROBINSON, J., concurring in part and dissenting in part. These cases are hard. Termination of parental rights may sever an established parent-child relationship that is both constitutionally protected and potentially vitally important to child and parent alike. But the failure to terminate when the evidence warrants it risks extending a period of uncertainty, with potential 16 adverse impacts on the very children the laws seek to protect. I believe the best way to manage these difficulties is to rely on the system we have established—one in which a factfinder who can directly observe the witnesses and review the evidence in that context determines the facts and exercises the difficult discretionary judgments, and an appellate court ensures that the factual findings are in fact supported by evidence in the written record and the difficult judgment as to the ultimate question falls within the trial court’s broad discretion, subject to clear standards on review. I believe the majority, however well-intentioned, has departed from this framework by filling in the gaps it perceives in the trial court’s fact-finding with appellate fact findings of its own. For that reason, I respectfully dissent from the majority’s ruling reversing the trial court’s denial of the termination petition as to father.

Divided court affirms conviction for refusal to take evidentiary breath test.

State v. Erika M. Schapp, 2019 VT 27 [filed 5/17/2019]


EATON, J. Defendant appeals a conviction of refusal to submit to an evidentiary breath test to determine blood-alcohol concentration. Defendant argues that (1) the court erroneously admitted evidence of her refusal to take a preliminary breath test (PBT), (2) the State failed to meet its burden of proving the “reasonableness” requirement for criminal refusal beyond a reasonable doubt, and (3) the State failed to prove that she refused the test. We affirm

ROBINSON, J., dissenting. The majority’s conclusion that refusal to consent to a roadside preliminary breath test (PBT) is admissible as evidence in connection with a charge of criminal refusal to take an evidentiary breath test pursuant to 23 V.S.A. § 1201(b) runs afoul of the Constitution. Because the erroneous admission of evidence concerning defendant’s refusal to submit to the PBT was not harmless, I respectfully dissent. I am authorized to state that Justice Skoglund joins this dissent.

Attorney’s-fee-shifting provision of public record act does not authorize award to prevailing self – represented litigant, even if he is an attorney.

Toensing v. AttorneyGeneral Of Vermont, 2019 VT 30 [filed 4/26/2019]

CARROLL, J. In this appeal, we address whether plaintiff, a substantially prevailing self-represented litigant in a case brought under the Vermont Access to Public Records Act (PRA), is entitled to attorney’s fees because he is an attorney. The civil division of the superior court denied plaintiff’s request for attorney’s fees. On appeal, plaintiff argues that he is entitled to attorney’s fees based on the plain language of the relevant PRA provision, the purpose of the Act, and the public policy underlying the Act. We join the vast majority of jurisdictions construing similar acts in concluding that the PRA’s plain language and purpose foreclose granting attorney’s fees to substantially prevailing self-represented litigants, regardless of whether they happen to be attorneys. Accordingly, we affirm the superior court’s decision

1 V.S.A. § 319(d)(1), provides that “the court shall assess against the public agency reasonable attorney’s fees and other litigation costs reasonably incurred in any case under this 3 section in which the complainant has substantially prevailed.”

The key terms in § 319(d)(1) are defined in Black’s Law Dictionary as follows. Attorney’s fee is “[t]he charge to a client for services performed for the client, such as an hourly fee, a flat fee, or a contingent fee.” Black’s Law Dictionary (10th ed. 2014).

We do not find persuasive plaintiff’s contention that public policy favors awarding attorney’s fees to self-represented attorneys in PRA cases. The analysis of many courts in other jurisdictions construing fee provisions in public record laws stems from Kay v. Ehrler, 499 U.S. 432 (1991). In that case, the U.S. Supreme Court held that self-represented attorneys, like all other self-represented litigants, cannot recover attorney’s fees under the Civil Rights Attorney’s Fees Award Act, 42 U.S.C. § 1988, Since Kay, virtually all federal and state courts construing attorney’s fee provisions in public records laws have held that prevailing self-represented attorneys are not entitled to attorney’s fees, based both on the obvious common definitions of the words “attorney” and “fee,” as well as the policy considerations discussed in Kay.

Cases awarding fees to self - represented litigants are distinguishable as involving attorneys attempting to collect fees from former clients or defending against frivolous lawsuits, or Rule 11  similar violations.

The policy underlying the PRA’s fee provision, as other courts have found with respect to their comparable fee provisions, is not to reward successful litigants or punish recalcitrant agencies,6 but rather to encourage objectively well-informed, meritorious claims by awarding mandatory or permissive attorney’s fees, depending on the agencies’ response to the requests, to defray the cost of incurring those fees needed to obtain public records.

In short, we discern no basis, either in the language of § 319(d) itself or the public policy underlying the PRA, to interpret the fee provision to grant attorney’s fees to self-represented attorneys, but not to other self-represented litigants.

SCOVT affirms denial of sudden emergency charge as harmless; and affirms partial summary judgment that car train collision was not caused by lack of second warning sign.




ROBINSON, J. Plaintiff, who sued defendant railroad after he was seriously injured in a train-car collision, appeals the trial court’s partial summary judgment ruling and the ensuing jury verdict for defendant. Plaintiff argues that the trial court erred by: (1) granting defendant summary judgment precluding him from presenting evidence that defendant’s failure to place a crossbuck on the right side of the road at the site of the railroad crossing, or to take steps to ensure that an “advance warning” sign was present, caused or contributed to the collision; (2) denying a request for the jurors to view the crossing where the accident occurred; (3) denying his motion for a directed verdict on the railroad’s negligence on account of its violation of a safety statute relating to maintenance of the railroad’s right of way; and (4) denying his request for an instruction on the sudden emergency doctrine. We reject each of these arguments and, accordingly, affirm the judgment in favor of defendant.

A plaintiff alleging negligence must show “both ‘but-for’ and proximate causation.”  Collins v. Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208Even assuming the absence of an advance warning sign or NECR’s failure to place a crossbuck on the right-hand side of the road amounted to a breach of the railroad’s duty of care,5 plaintiff could not prove defendant’s liability for negligence without evidence that the collision would not have occurred had either of the signs been in place. No reasonable jury could conclude that the absence of a crossbuck sign on the right caused or contributed to the collision. We reach this conclusion because a crossbuck sign on the right would not have provided approaching motorists with any warning of the crossing beyond the warning already provided earlier by the crossbuck sign on the left, which was clearly visible to motorists exiting the covered bridge.

Because the jury did not reach the question of plaintiff’s comparative negligence, plaintiff cannot show prejudice resulting from omission of the sudden emergency instruction, even assuming that it should have been given.

Thursday, May 23, 2019

SCOVT affirms dismissal of claim against residential mental-health provider for failure to warn potential victim of violence by resident where victim was neither individually identified or identifiable, nor a member of a discrete identified or identifiable class of potential victims.

Montague v. Hundred Acre Homestead, LLC, 2019 VT 16 [filed 3/8/2019


ROBINSON, J. This case calls for us to consider whether one who provides residential care for an individual has a tort-law duty to warn a potential victim of violence by that individual when that potential victim is neither individually identified or identifiable, nor a member of a discrete identified or identifiable class of potential victims. Plaintiff Darryl Montague sued Hundred Acre Homestead, a therapeutic residential community, after a resident of Hundred Acre shot him at the shooting range he owned. He invokes two theories of liability: first, that as the resident's mental-health provider, Hundred Acre breached a duty to take reasonable steps to protect him from the resident by warning him of the danger she posed; and second, that Hundred Acre breached a duty to him by accepting and retaining the resident for care in violation of applicable Vermont regulations. Montague has appealed the superior court's dismissal of both. We conclude that both theories of negligence fail because neither establishes that Hundred Acre had a cognizable legal duty to protect Montague enforceable through a private tort action. We thus affirm.

 On a motion to dismiss, the court must assume that the facts pleaded in the complaint are true and make all reasonable inferences in the plaintiff's favor.  A court should grant a motion to dismiss for failure to state a claim only when "it is beyond doubt that there exist no facts or circumstances that would entitle [the plaintiff] to relief.  Powers v. Office of Child Support, 173 Vt. 390, 395, 795 A.2d 1259, 1263 (2002). Because this "threshold a plaintiff must cross in order to meet our notice-pleading standard" is such a low one, "[m]otions to dismiss for failure to state a claim are disfavored and should be rarely granted." . The purpose of a dismissal motion "is to test the law of the claim, not the facts which support it." .

We are particularly wary of dismissing novel claims because "[t]he legal theory of a case should be explored in the light of facts as developed by the evidence, and, generally, not dismissed before trial because of the mere novelty of the allegations." . Nonetheless, where the plaintiff does not allege a legally cognizable claim, dismissal is appropriate. 

We conclude that Montague has not alleged facts that would place this case within the narrow exception to the general rule that there is no duty to act to prevent harm by another to a third person, and that the regulations governing licensed therapeutic communities upon which Montague relies do not support Montague's private action for damages against Hundred Acre. Although our analysis is framed with reference to the sufficiency of Montague's factual allegations, it turns on the validity of his legal theories. That is, it turns on "the law of the claim, not the facts which support it." Powers, 173 Vt. at 395, 795 A.2d at 1263.

I
On appeal, Montague argues first, Hundred Acre was negligent because, as resident's mental-health provider, it had a duty under Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422 (1985), and our subsequent holding in Kuligoski v. Brattleboro Retreat, 2016 VT 54A, 203 Vt. 328, 156 A.3d 436, to protect her identifiable and foreseeable victims.[2] Montague argues he was both an identifiable and foreseeable victim because Hundred Acre knew or should have known of resident's "lengthy and significant history of violence, restraining orders, and threats of violence and mental illness, as well as that she was prohibited from purchasing or possessing firearms and had been prescribed antipsychotic medications" and because she had told Hundred Acre she wished to go target shooting to deal with her aggression

 In prosecuting a claim of negligence against Hundred Acre, Montague must allege facts establishing that Hundred Acre, as resident's mental-health provider, had a duty to protect him from resident. There is generally no duty to protect another from the actions of a third person. One limited exception to this general rule is that mental-health professionals, by virtue of their special relationship with their patients, have a duty to take reasonable action to protect identified third parties toward whom their patients have threatened serious physical harm. Peck, 146 Vt. at 63, 499 A.2d at 423 In  Kuligoski, decided two years ago, the Court was divided as to whether the Peck decision limits a mental-health provider's duty to protecting only specifically identified individuals who are at risk, or whether it potentially extends in some cases to individuals who have not been specifically identified.  But the Court was not divided with respect to the proposition that Peck does not support a generalized duty to protect or warn all foreseeable victims.  Even if Peck applies to identifiable (though not actually identified) members of a discrete and determinate class of people. Montague's complaint would still fail to state a claim. the allegation in Montague's complaint could support an inference that he was part of determinate and identifiable class that faced a particularized threat. Resident's claimed statements do not support the inference that she posed a risk of violence toward anyone at all, let alone a class of people that included Montague.

II.

Second, Montague argues that Hundred Acre was negligent because it violated 33 V.S.A. § 7111(d)(3) and the Licensing and Operating Regulations, which prohibit therapeutic residential communities from accepting and retaining residents whose residential care needs they cannot safely accommodate and from operating in a manner "inimical to the public health, morals, welfare, and safety," and which Montague argues were intended to protect public safety and thus define a duty of care toward third parties like him.

The parties and trial court relied on the principles set forth in § 286 of the Restatement (Second) of Torts to guide their analysis on this issue. We take this opportunity to reiterate the distinction between § 286 and § 874A.

 "Where a party has an existing legal duty to another, a safety statute may serve as rebuttable evidence that the defendant breached the applicable standard of care, thereby shifting the burden of production to the defendant." Sheldon v. Ruggiero, 2018 VT 125, ¶ 24, ___ Vt. ___, ___ A.3d ___ (citing Restatement (Second) of Torts § 286 (1965)). This is the lesson of Restatement (Second) of Torts § 286. The strand of common law reflected in § 286 does not govern the question whether a safety statute creates a privately enforceable legal duty. Id. ¶ 25. Rather, it provides that where a defendant owes a plaintiff a legal duty, safety statutes and regulations may "supply the standard of care in the face of [that] established common-law duty." Id.

By contrast, Restatement (Second) of Torts § 874A supplies the framework for evaluating whether violation of a safety statute that does not expressly include a civil remedy can support a private action for damages. See id. ¶ 16 n.5. Montague is not relying on the statutes and regulations he cites to supply the standard of care to apply in the context of an established duty of care. Rather, he invokes the statute and regulations as the source a duty enforceable through a claim for damages. For that reason, we apply the framework of § 874A in analyzing the issue
  
Further, it is  Restatement (Second) of Torts § 874A, not the standard articulated in Cort v. Ash, 422 U.S. 66 (1975), which are similar but not identical to § 874A, is the proper framework for determining whether to accord a private right of action based on a statutory violation. Under the Restatement, in order to recover in a tort action arising from a legislative provision, a plaintiff must show that (1) the plaintiff is a member of the group of people whom the legislation was intended to protect, and (2) "the interest invaded, the harm resulting to that interest and the hazard producing the harm were all within the purview of the legislative provision.

Montague is not entitled to sue Hundred Acre for damages on account of its alleged violations because it is clear from the plain language of the statute and regulations relied on that their overarching purpose is to protect the class of residents of long-term-care facilities, not members of the public generally.
  
III

We conclude that Montague has not alleged facts that would place this case within the narrow exception to the general rule that there is no duty to act to prevent harm by another to a third person, and that the regulations governing licensed therapeutic communities upon which Montague relies do not support Montague's private action for damages against Hundred Acre. Although our analysis is framed with reference to the sufficiency of Montague's factual allegations, it turns on the validity of his legal theories. That is, it turns on "the law of the claim, not the facts which support it." Powers, 173 Vt. at 395, 795 A.2d at 1263.

Friday, May 17, 2019

SCOVT recognizes a common-law private right of action for damages resulting from the unjustified disclosure to a third party of information obtained by medical personnel during treatment , and affirms summary judgment that threat of imminent and serious harm to plaintiff and the public, under HIPAA, justified medical provider’s disclosure to third persons of information obtained during treatment.

Elizabeth Lawson v. Patricia Halpern-Reiss and Central Vermont Medical Center, 2019 VT 38 [filed 5/17/2018]

EATON, J. In this appeal, we are asked to recognize a common-law private right of action for damages resulting from the unjustified disclosure to a third party of information obtained by medical personnel during treatment. Plaintiff alleges in her lawsuit that she incurred damages as the result of an emergency room nurse informing a police officer that she was intoxicated, had driven to the hospital, and was intending to drive home. The trial court granted defendant Central Vermont Medical Center (CVMC) summary judgment based on its determination that nothing in the record supported an inference that the nurse’s disclosure of the information was for any reason other than her good-faith concern for plaintiff’s and the public’s safety.

In this opinion, we recognize a common-law private right of action for damages based on a medical provider’s unjustified disclosure to third persons of information obtained during treatment. Like the trial court, however, we conclude that CVMC was entitled to judgment as a matter of law because, viewing the material facts most favorably to plaintiff and applying the relevant law we adopt today, we conclude that no reasonable factfinder could determine that the disclosure was for any purpose other than to mitigate the threat of imminent and serious harm to plaintiff and the public. Accordingly, we affirm the trial court’s judgment.

HIPAA regulations permit “disclosures to avert a serious threat to health or safety.” 45 C.F.R. § 164.512(j). In relevant part, the regulation permits a “covered entity” to disclose “protected health information” as long as two conditions are met: the covered entity has a good-faith belief that the disclosure is “necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public,” and the disclosure is “to a person or persons reasonably able to prevent or lessen the threat, including the target of the threat.” Id. § 164.512(j)(1)(i). The regulation further provides that a covered entity disclosing information pursuant to this exception is “presumed to have acted in good faith with regard to a belief described in” the exception. Id. § 164.512(j)(4).

The presumption of good faith in HIPAA, § 164.512(j)(4), which we adopt for purposes of analyzing the common-law tort we recognize in this decision, shifts the burden to plaintiff to make some showing that the nurse’s disclosure that plaintiff had driven to the hospital and was blatantly intoxicated was not made in good faith. Plaintiff failed to satisfy her burden