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.