Torts. Health care provider has duty to warn caregivers of dangerous mental patient.

Kuligoski v. Brattleboro Retreat,2016 VT 54A [filed September 16, 2016]

DOOLEY, J. This case arises out of an assault by a former patient of the Brattleboro Retreat, a mental health treatment facility, while the patient. E. R., was undergoing outpatient treatment with Northeast Kingdom Human Services (NKHS). Plaintiffs sued the Retreat and NKHS, raising claims of failure to warn of E.R.’s danger to others, failure to train E.R.’s parents in handling E.R., failure to treat, improper release, and negligent undertaking. The superior court granted defendants’ motions to dismiss for failure to state a claim, and plaintiffs appealed. We reverse on the failure to warn claim, and affirm on the failure to treat, improper release, failure to train, and negligent undertaking claims.

Plaintiffs complaint alleged (1) the Retreat was negligent in discharging E.R. knowing of his dangerous tendencies and that he was a high risk for decompensation; (2) the Retreat was negligent in failing to warn E.R.’s parents that he posed a risk to the general public; (3) the Retreat was negligent in failing to train E.R.’s parents how to supervise him, monitor and manage his medications, and take necessary and appropriate measures to protect potential victims; (4) the Retreat was negligent in its undertaking “to render a service that it recognized or should have recognized as necessary for the protection of third persons”; (5) NKHS was negligent in failing to warn E.R.’s parents that he posed a risk to the general public; (6) NKHS was negligent in failing to take “immediate and affirmative steps” to treat E.R.; and (7) NKHS was negligent in undertaking its duty to render services to E.R.

The modern law on duty comes from the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41, which provides:

(a) An actor in a special relationship with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise within the scope of the relationship.

(b) Special relationships giving rise to the duty provided in Subsection (a) include:

. . . .

(4) a mental-health professional with patients.

This Restatement section replaces three sections of the Restatement (Second) of Torts (1965), which have been used extensively in defining the duty owed by a mental health professional or institution to third parties injured by a patient. See id. §§ 315(a), 319, 324A. 

In Vermont, our most significant decision on the duty of mental health professionals to third parties is Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422 (1985), Peck is a 3 to 2 decision with no majority opinion. Two Justices would have held that “a mental health professional who knows or, based upon the standards of the mental health profession, should know that his or her patient poses a serious risk of danger to an identifiable victim has a duty to exercise reasonable care to protect him or her from that danger.” Id. at 68, 499 A.2d at 427. We hold that Peck and other precedents bar plaintiffs’ duty-to-treat and negligent-undertaking claims.

However, we also hold that Peck extends to both  identifiable and foreseeable victims, and that plaintiffs’ duty-to-warn claims should not be dismissed at this stage in the litigation. While we agree that the Peck holding does not apply to a duty to warn the general public, the complaint here expresses a much narrower duty: to warn E.R.’s caretakers, here, his parents.

We conclude that the Retreat had a duty to give such warnings for two reasons. First the complaint alleges that the parents had assumed the role of E.R.’s caretakers were monitoring E.R.’s needs and treatment, were involved in his discharge, and were available to receive information on his continuing need for treatment and the actions that should have been taken based on his behavior. the Retreat owed a duty of care to provide reasonable information to the parents to enable them to recognize the dangers and fulfill the responsibilities envisioned for them in the treatment plan. Second E.R.’s parents fell within the “zone of danger” from E.R.’s conduct. The Retreat had a duty to warn E.R.’s parents as individuals in the “zone of danger” of E.R.’s dangerous propensities. The duty to “warn” may be better described as a duty to “inform” we decline to recognize a distinct cause of action for failure to “train” E.R.’s parents.

This duty applies only when a caregiver is actively engaging with the patient’s provider in connection with the patient’s care or the patient’s treatment plan (or in this case discharge plan), the provider substantially relies on that caregiver’s ongoing participation, and the caregiver is himself or herself within the zone of danger of the patient’s violent propensities.

We are imposing the duty to warn or inform as a matter of tort law only in circumstances where the mental health professionals and institution are authorized, but not obligated, to disclose under HIPAA, which is the situation as alleged here.

We hold that both the Retreat and NKHS had a duty to provide information to E.R.’s parents, both to warn them of E.R.’s risk of violence to themselves and others and to provide them reasonable information to enable them to fulfill their role in keeping him safe.

We stress that we are only defining the duty owed by the mental health services providers, and allowing this action to proceed to determine whether defendants breached their duties, and if so, were negligent in doing so. We affirm on plaintiffs’ failure-to-treat, failure-to-train, and negligent-undertaking claims. We reverse the dismissal of Counts II and V of plaintiffs’ complaint and remand for those counts to proceed.

Duty. Economic loss rule does not require that liability for physical harm be based on a tort duty independent of any contractual obligations. Liability in tort for physical harm can arise from failure to exercise reasonable care to perform a contractual undertaking.

Langlois v. Town of Proctor, 2014 VT 130 [Filed 05-Dec-2014]

DOOLEY, J. Kathleen Langlois, owner of a building with commercial space on the first floor and an apartment on the second floor, failed to pay her water bill for the property to defendant Town of Proctor. Plaintiff alleged she arranged with a representative of the Town to disconnect water service, but the Town failed to do so, and that she suffered damage in reliance on the Town’s undertaking when she discontinued heating the building, causing the pipes containing water to freeze and split with resulting flooding of the first floor and basement.

The jury found that there was a contract between plaintiff and the Town “regarding the turning off of her water service,” but that the Town had not breached that contract. It found that the Town was negligent, that its negligence was a proximate cause of harm to plaintiff, and awarded plaintiff damages of $64,918.44.

On appeal, the Town argues for reversal because a tort duty must arise independent of any contractual obligations, and that it had no tort duty to properly turn off plaintiff’s water service. We disagree with the Town but reverse on other grounds. Liability in tort for physical harm can arise from failure to exercise reasonable care to perform a contractual undertaking.

The Town relies on a sentence from Springfield Hydroelectric Co. v. Copp, in which this Court stated that a tort duty of care must be “independent of any contractual obligations.” 172 Vt. 311, 316, 779 A.2d 67, 71-72 (2001) (emphasis omitted) (quoting Grynberg v. Agri Tech, Inc., 10 P.3d 1267, 1269 (Colo. 2000)). Plaintiff responds that a tort duty arose from its undertaking to disconnect the water service and plaintiff’s reliance upon that undertaking. She bases this argument on the Restatement (Second) of Torts § 323 (1979) ( Negligent Performance of Undertaking to Render Services)

The Town reads too much into Springfield Hydroelectric. The issue in that case was whether the plaintiff could obtain a tort recovery for purely economic losses in the absence of physical damage. We did not hold that the duty on which plaintiff relies for a tort action can never be contractual. In fact, many of our duty cases are based on undertakings involving contractually assumed duties.

This Court has applied § 323, and its cousin, § 324A, which governs harm to a third person, in a number of cases. Neither § 323 nor § 324A suggest that the duty stemming from the undertaking cannot be contractually based. Both apply to an undertaking “for consideration,” which is one way to describe a contract. 

The evidence in this case was sufficient for a factfinder to find that the elements of § 323 were established.

Torts. Inspection by liability insurer was not an undertaking to assure workplace safety.

Murphy v. Sentry Insurance, 2014 VT 25 (07-Mar-2014)

Plaintiff  appeals from a superior court decision that vacated a jury verdict in her favor and entered judgment as a matter of law for defendant Sentry Insurance. Plaintiff contends that there was sufficient evidence to establish Sentry’s liability for her husband’s workplace death under the Restatement (Second) of Torts § 324A based on a negligent inspection theory. We affirm.

Decedent died after a forklift he was operating for his employer, Pete’s RV Center, tipped over. Plaintiff alleged that Sentry was negligent in its inspection because it failed to discover and warn Pete’s about the danger of using unapproved towing attachments. Under § 324A one who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

See Derosia v. Liberty Mutual Insurance Co., 155 Vt. 178, 182-83, 583 A.2d 881, 883 (1990). We agree with the trial court that plaintiff did not provide sufficient evidence here to support a finding in her favor under any of the subsections of § 324A.

To fall within § 324A(a) a party must engage in negligent conduct that “directly increases risk of harm.”  Mere negligence in failing to discover a danger does not subject the defendant to liability. Assuming that the risk of physical harm associated with the use of unapproved forklift attachments was present at the time of Sentry’s inspection, nothing Sentry did increased the risk of physical harm to decedent from such attachments. We agree with the trial court that Sentry’s liability cannot be premised on § 324A(a). 

In assessing a party’s liability under § 324A(b), one must examine the nature and extent of a party’s undertaking. Sentry was acting as a general liability insurer, not a workers’ compensation insurer. Sentry’s role in this case was nothing like that of the workers’ compensation insurer in Derosia.  The Sentry inspector walked through the premises with one of the owners of Pete’s, and took note of several obvious hazards. There was no evidence to show that the inspector undertook to inspect the forklift or the forklift attachment, nor evidence to show that the inspector undertook to inspect the entire physical premises to discover any safety hazards that might exist. Given the nature of his safety survey, no jury could reasonably have concluded that in conducting its inspection as Pete’s general liability insurer, Sentry thereby assumed any portion of Pete’s obligation to provide a safe workplace for the decedent. 

Any “reliance” under § 324A(c) must be reasonable. No reasonable employer could believe under the circumstances here that the Sentry inspector had identified all existing hazards on the premises or that he had implicitly approved the use of unauthorized towing attachments. Any reliance on the safety survey as approving the practice of using forklifts with unapproved attachments would be unreasonable as a matter of law.

 SCOVT Note. The Third Restatement now provides:

§ 43 Duty to Third Parties Based on Undertaking to Another

An actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to which a third person is exposed has a duty of reasonable care to the third person in conducting the undertaking if:

(a) the failure to exercise reasonable care increases the risk of harm beyond that which existed without the undertaking,

(b) the actor has undertaken to perform a duty owed by the other to the third person, or

(c) the person to whom the services are rendered, the third party, or another relies on the actor's exercising reasonable care in the undertaking.

Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 43 (2012). This Section replaces Restatement Second of Torts § 324A. Id. comment a. 

Torts. Respondeat superior. Chartiable and volunteer immunities. No undertaking by officer of social club to protect one guest from another.

Buxton v. Springfield Lodge No. 679, Loyal Order of Moose, Inc., 2014 VT 52 (23-May-2014)

DOOLEY, J. Plaintiff appeals two superior court decisions in this personal-injury negligence action: (1) an order dismissing all claims against defendant Robert Merrill, Sr., in his individual capacity, on summary judgment, and (2) an order granting partial judgment as a matter of law during trial, concluding that any liability of defendant Springfield Lodge No. 679, Loyal Order of Moose, Inc., could not be predicated on the action or inaction of Mr. Merrill, Sr., its governor. We affirm both decisions.

Plaintiff, a party guest, was injured during a New Year’s Eve party hosted by the Springfield Lodge when a fight broke out between two other party guests. Merrill, Sr., the governor of the Lodge, was present.   In this position, Merrill, Sr. was an unpaid volunteer. This case turns on whether Merrill, Sr. owed a duty to plaintiff to take some action to prevent the fight that caused plaintiff’s injury.

Plaintiff asserts that Merrill, Sr. voluntarily assumed the responsibilities assigned to the governor and in doing so undertook “to render services to [the Lodge] . . . which he should recognize as necessary for the protection of a third person.” Restatement (Second) of Torts § 324A (1965). Whatever duty Merrill, Sr. undertook as governor, it did not include the duty plaintiff asserted. Nothing in Merrill, Sr.’s relevant responsibilities as governor suggests that the governor has a personal responsibility to prevent the misconduct of others on Lodge property or to warn staff about impending misconduct. Plaintiff did not articulate a viable theory under which the governor of the Lodge had a duty of care towards the Lodge’s New Year’s Eve party guests or a duty to control Merrill, Jr. The trial court’s summary judgment decision dismissing the claims against Merrill, Sr. is correct in its result.

We note that Merrill, Sr. is a voluntary officer of the Moose Lodge serving without compensation. To the extent that plaintiff alleges that Merrill, Sr.’s personal liability should be premised on his good-faith, but negligent, execution of his official duties as a volunteer officer of a tax-exempt organization, such personal liability is prohibited by statute unless he was grossly negligent or committed an intentional tort. 12 V.S.A. § 5781(1); see also 42 U.S.C. § 14503 (limiting liability for volunteers under federal law). The record does not show whether the Lodge is a tax-exempt organization, and neither party has cited the statute. For these reasons, we do not rely upon it. We note, however, that if the statute applies, this is exactly the type of litigation that the statute was intended to prevent.

This statutory tort immunity for individual volunteers is not mirrored by any tort immunity for tax-exempt organizations in Vermont, so it has no bearing on the Lodge’s liability for Merrill, Sr.’s actions. See generally Foster v. Roman Catholic Diocese of Vt., 116 Vt. 124, 137, 70 A.2d 230, 237 (1950) (refusing to adopt the charitable-immunity doctrine for organizations).

The definition of respondeat superior is “[t]he doctrine holding an employer or principal liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency.” Black’s Law Dictionary 1338 (8th ed. 2004). In other words, respondeat superior, or vicarious liability, requires the agent to commit some wrongful act—a tort or contract violation, for instance—for which the principal could also be held liable. Alleging respondeat superior based on tort requires a prima facie showing of all elements of the agent’s tort, including the agent’s legal duty. Since Merrill, Sr. committed no wrongful act or failure to act, the Lodge cannot be held liable for his actions or inactions. Thus, the trial court should have also awarded the Lodge summary judgment on plaintiff’s claims that the Lodge was liable based on Merrill, Sr.’s negligence.

Torts. Troopers undertook a duty of care when doing a “welfare check.”

Kennery v. State of Vermont, 2011 VT 121 (Dooley, J.) 

 The Restatement (Second) of Torts § 324A (1965) provides:

 One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

 (a) his failure to exercise reasonable care increases the risk of such harm, or

 (b) he has undertaken to perform a duty owed by the other to the third person, or

 (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Plaintiff on behalf of the estate of Gladys Kennery, appeals the granting of a motion for summary judgment on plaintiff’s complaint alleging negligence, gross negligence, and civil rights violations against the State of Vermont, certain Vermont State Troopers and the Vermont Department of Public Safety (VDPS).  Plaintiff’s lawsuit stems from a “welfare check”—that is, a check to determine that a person is safe and secure. Gladys’s daughter had requested that the troopers check on her elderly mother, but the troopers searched the wrong residence.  Meanwhile, Gladys had collapsed in her backyard and was unable to get back up and reach shelter.  Gladys was found the next morning and died twelve days later from hypothermia caused by prolonged exposure to the cold.

The superior court held that the State owed no duty of reasonable care in performing the welfare check. We hold that the trial court erred in granting summary judgment to defendants.  Genuine issues of material fact remain as to whether a duty of care was created under the Restatement (Second) of Torts § 324A based upon the State’s undertaking to perform the welfare check and whether the troopers breached that duty such that the State is liable under the Vermont Tort Claims Act (VTCA).  We also hold that the court erred in dismissing plaintiff’s claim of gross negligence against the  Troopers. Accordingly, we reverse and remand.

The threshold question for both plaintiff’s negligence and gross negligence claims is whether the troopers owed Gladys a duty to perform the welfare check with due care.  We agree with plaintiff that he raised a valid claim that the troopers had a common law duty of care under Restatement (Second) of Torts § 324A and that the undisputed facts do not resolve such a claim against him.  The troopers expressly undertook to render the welfare check services to the daughter (the other); they recognized or should have recognized that the welfare check services were necessary for the protection of Gladys (the third person);  they did not exercise reasonable care to protect their undertaking, and either their failure to exercise reasonable care increased the risk of harm because Gladys remained outside overnight (subsection a) or Gladys’s harm was suffered because Lorraine relied upon their representation that they checked the house and Gladys was not there (subsection c).