Older friend did not have duty to prevent / did not cause 15-year-old’s suicide.

Lenoci v. Leonard, 2011 VT 47 (mem.)

This case asks the Court to decide if an eighteen-year-old has a duty to control the behavior of a fifteen-year-old friend and, if the fifteen-year-old later commits suicide, whether the eighteen-year-old is at fault.  Plaintiff contends the trial court erred in finding Kayla did not owe Alex a duty. She suggests such a duty arose when Kayla, an eighteen year old, brought Alex, a minor, to a party with alcohol and adults present and recognized, or should have recognized, the "unreasonable risk of sexual assault" Alex faced. Plaintiff further argues that there was ample evidence supporting her theory that Kayla's negligence caused Alex's death and emotional distress and summary judgment was therefore premature. We affirm the trial court's grant of summary judgment to defendant and conclude she had no duty to intervene to prevent the tragedy that occurred. We additionally address the trial court's holding that Alex's suicide broke any causal connection to Kayla's actions.

Foreseeability of the risk is often a primary consideration on the issue of duty. We have recognized that "[a]ctionable negligence is made out only when it appears that a prudent person, in like circumstances, would have thought that injury would be likely to result" from the acts or omissions in question.To argue that Kayla could or should have anticipated Alex would suffer emotional distress as a result of the intercourse requires too much speculation and does not satisfy the need that the claimed injury be reasonably foreseeable.

Plaintiff essentially advocates that we find a duty simply because one girl was eighteen and the other was fifteen. The law does not impose such a duty in this situation—a duty for an eighteen-year-old to protect a high school friend who has not reached the age of majority from the consequences of the younger person's independent behavior.  There is no evidence that Kayla ever agreed to supervise and care for Alex or that the parents of Alex ever relinquished or sought to relinquish supervision of Alex to Kayla. As the trial court noted, "This was a case of two high school friends sneaking out together, unbeknown to either of their parents; not a situation where an adult agrees to care for another's child. Kayla did not become Alex's keeper simply because Kayla was 18 years old and Alex was not." We affirm the trial court's decision on this issue.

The trial court, however, noted that the wrongful death claim required further analysis because "a separate duty exists as to suicide." We address this issue to provide guidance to the trial bench in the future and to affirm the trial court's reasoning in this case.   

Generally speaking, voluntary suicide is viewed as an independent intervening act that breaks the causal chain and severs potential liability. However, the causal chain is not broken when an injured person becomes insane, even temporarily, and that insanity prevents one from realizing the nature of one's act or controlling one's conduct. Here, there was no evidence of an uncontrollable impulse on Alex's part to commit suicide.

A number of jurisdictions have recognized an additional exception to the general rule limiting liability in the event of a suicide, holding that liability exists because the defendant had a duty to prevent the suicide arising from the defendant's special relationship with the suicidal individual. This exception does not apply here. As we have found, the relationship between Alex and Kayla did not give rise to any "special relationship" that would impose a duty of care on Kayla.
There was substantial evidence that Alex had been expressing suicidal ideation for some time, long before she had sex at the apartment, and there was no evidence Kayla knew Alex was suicidal. Alex, for her own reasons, chose to end her life. Nothing Kayla did or did not do played a part in that decision.
Affirmed.

Torts. Epidemiological evidence insufficient to show specific causation.

Blanchard v. Goodyear Tire & Rubber Co., 2011 VT 85 (mem. )

Plaintiff Paul Blanchard appeals the superior court’s order granting summary judgment to defendants with respect to his toxic tort personal injury action.  We affirm.

Plaintiff cannot survive Goodyear’s motion for summary judgment on his toxic tort claim unless he is able to point to evidence suggesting a probability, rather than a mere possibility, that (1) he was exposed to the specified chemical at a level that could have caused his physical condition (general causation); and (2) the exposure to that chemical did in fact result in the condition (specific causation).

Plaintiff proffered evidence indicating that, as a teenager some thirty-five years earlier, he frequently played on a field adjoining the Goodyear plant.  A gully that ran across the field may have contained water contaminated by petroleum products containing benzene.  Benzene has been associated with non-Hodgkins lymphoma, a general category of cancer under which plaintiff’s subtype falls.  Plaintiff’s lymphoma was not caused by an immunodeficiency disorder, a known cause of that type of lymphoma.       

Assuming that we accept all of this evidence as true, it falls well short of what plaintiff would be required to show in order to prevail in a jury trial. As we recently explained in Estate of George v. Vermont League of Cities and Towns, epidemiological studies assess the existence and strength of associations between a suspected agent and a disease or condition and thus focus on general causation—whether the agent is capable of causing the disease—rather than specific causation—whether the agent actually caused the disease or condition in a particular individual. 2010 VT 1, ¶ 18.  Proof of an association between occupational exposure to benzene and non-Hodgen’s lymphomas is insufficient to support a jury finding of specific causation. The vast majority of cases concerning his type of lymphoma are of unknown origin. Therefore evidence excluding one known cause of plaintiff’s lymphoma does not permit a  jury to find more-probable-than-not specific causation. 


In the end, plaintiff’s suspicion that his cancer was caused by exposure to benzene on the Goodyear ballfield when he was a teenager is purely speculative.

Foreclosure complaint dismissed for lack of standing.

U.S. Bank National Association v. Kimball, 2011 VT 81 (Burgess, J.)

Plaintiff US Bank  appeals from a trial court order granting summary judgment for defendant homeowner and dismissing with prejudice US Bank’s foreclosure complaint for lack of standing.  The court concluded that to enforce a mortgage note, “a plaintiff must show that it was the holder of the note at the time the Complaint was filed,” and here there was “simply no evidence of an assignment to a party in interest.”  Because neither note submitted by US Bank was dated, the court concluded that there was no evidence that the note was endorsed to US Bank before the complaint was filed.  Therefore, the court held that US Bank lacked standing to bring the foreclosure action. On appeal, US Bank argues that it had standing to prosecute the foreclosure claim and the court’s dismissal with prejudice was in error.  Homeowner cross-appeals, arguing that the court erred in not addressing her claim for attorney’s fees.  We affirm the dismissal and remand for consideration of homeowner’s motion for attorney’s fees. The foreclosure complaint is dismissed and the case is remanded for consideration of defendant’s motion for attorney’s fees.

 It is neither irrational nor wasteful to expect a foreclosing party to actually be in possession of its claimed interest in the note, and have the proper supporting documentation in hand when filing suit.  Nevertheless, and despite the court’s invocation of “with prejudice” in its dismissal order, US Bank cannot be precluded from pursuing foreclosure on the merits should it be prepared to prove the necessary elements.   The court’s dismissal on just jurisdictional grounds was not adjudication on the merits.  See V.R.C.P. 41(b)(3).

To foreclose a mortgage, a plaintiff must demonstrate that it has a right to enforce the note, and without such ownership, the plaintiff lacks standing.   While a plaintiff in a foreclosure should also have assignment of the mortgage, it is the note that is important because “[w]here a promissory note is secured by a mortgage, the mortgage is an incident to the note.”  Under the  UCC the Bank had the burden of demonstrating that it was a “ ‘[p]erson entitled to enforce’ ” the note, by showing it was “(i) the holder of the instrument, (ii) a nonholder in possession of the instrument who has the rights of a holder, or (iii) a person not in possession of the instrument who is entitled to enforce the instrument.”  9A V.S.A. § 3-301.  On appeal, US Bank asserts that it is entitled to enforce the note under the first category—as a holder of the instrument.

To be a holder, US Bank was required to show that at the time the complaint was filed it possessed the original note either made payable to bearer with a blank endorsement or made payable to order with an endorsement specifically to US Bank.  US Bank lacked standing because it has failed to demonstrate either requirement.  Initially, US Bank’s suit was based solely on an assignment of the mortgage by MERS.  The complaint did not allege that US Bank held the original note. While US Bank eventually produced the original note with an endorsement to it, none of the evidence submitted at summary judgment by US Bank established the timing of the endorsement. Fraught with contradictions and evidently lacking information based on personal knowledge, the affidavit was insufficient to establish that US Bank had an interest in the note prior to the time the complaint was filed. Based on this contradictory and uncertain documentation, the trial court did not err in concluding that there was no evidence to show that US Bank was a holder of the note at the time it filed the complaint.  

Adverse possession must be continuous.

   In re Estates of Allen, 2011 VT 95 (Dooley, J.)

Plaintiff  appeals a superior court judgment, arguing  the court misstated the elements of proof for adverse possession and misapplied the law. We affirm.

Plaintiff’s main merits  argument appears to be that the court erred in requiring the fifteen years to be consecutive.  Thus, he argues that he showed adverse possession for the years 1964 to 1972 and again for the period from 1985 to 1992, and these periods should be added to reach the fifteen years.  We have often stated that the claimant must possess the property continuously over the fifteen-year period.  This is the same as saying the years must be consecutive.  Plaintiff cannot add two different periods, separated by many years, to establish the fifteen years of adverse possession.We hold that the superior court acted correctly in determining that plaintiff had no interest in the mineral rights.

 Affirmed.

Probate appeal. Statement of questions does not limit superior court. Summary judgment is always provisional until final judgment is entered.

In re Estates of Allen, 2011 VT 95 (Dooley, J.)

This case originates from a quiet-title action in probate court by defendant Richard Rupe and his father laying claim to certain mineral rights by way of adverse possession.  Defendant and his father appealed the probate decision to the superior court, which, after first granting summary judgment in favor of plaintiff on certain issues, ultimately dismissed plaintiff’s claim to the mineral rights and awarded all rights, title, and interest to defendant. Plaintiff now appeals this superior court judgment, arguing  the court exceeded its authority by considering more than the issues raised in the statement of questions submitted on appeal from the probate court and resolved by summary judgment.  We affirm. 

 Plaintiff’s main argument on appeal is that, under Rule 72, the superior court had no authority to require plaintiff’s to prove an interest in the mineral rights by adverse possession because the court granted summary judgment for plaintiff on defendant’s four questions. The summary judgment decision was an interlocutory order.  If plaintiff believed that the summary judgment meant that he had prevailed fully on the merits, he should have sought entry of judgment under Vermont Rule of Civil Procedure 58.  See Powers v. Hayes, 170 Vt. 639, 640, 751 A.2d 781, 782 (2000) (mem.) (stating that summary judgment is not entry of judgment as required for a final judgment).  As it was the summary judgment did not preven the trial court from requiring him to prove his adverse possession claim.

A case such as this is a hybrid of an appeal from the probate court and a de novo proceeding that is conducted as if the probate court proceeding never occurred.  The statement of questions required by Rule 72(c) has a limited function.  Recently, we have held that while a list of certified questions is mandatory, it only “serves to focus, but cannot limit, the issues for the court.”  In re Estate of Doran, 2010 VT 13, ¶ 14, 187 Vt. 349, 993 A.2d 436.

We hold that the superior court acted correctly in determining that plaintiff had no interest in the mineral rights.

Affirmed.