SCOVT Affirms Rule 12 (b)((6) dismissal of wrongful death action against landlord, holding a landlord not in possession of defective property and with no “legal relationship” to injured person invited by tenant, has no liability for injuries regardless of foreseeability of harm

Fleurrey v. Department of Aging and Independent Living, 2023 VT 11 (filed 2/24/2023)

EATON, J. Plaintiff appeals from the civil division’s dismissal of her negligence claim against defendant landlord which alleged that landlord was responsible for the drowning death of a fifty-four-year-old man with developmental disabilities on the property that landlord leased to decedent’s caretakers.  Count III of the complaint alleged that landlord failed to fence the pond, thereby negligently failing to keep the property free of unreasonably dangerous conditions which it knew to exist. Landlord filed a Rule 12(b)(6) motion to dismiss Count III, arguing that it owed decedent no duty to fence the pond at the  property. The question on appeal is whether the civil division properly dismissed plaintiff’s claim. We conclude that it did and therefore affirm.

The purpose of a dismissal motion is to test the law of the claim, not the facts which support it. “[W]hether there is a cognizable legal duty that supports a particular tort action depends on a variety of public policy considerations and relevant factors.” Deveneau v. Wielt, 2016 VT 21, ¶ 8. The court considers “the relationship of the parties, the nature of the risk, . . . the public interest at stake, and the foreseeability of the harm.” Id. The existence of a duty is” primarily a question of law” and “[a]bsent a duty of care, an action for negligence fails.” Id.

More than a century ago we held that a suit could not be sustained against a landlord by a tenant’s invitee, explaining that “[l]iability for an injury due to defective premises ordinarily depends upon power to prevent the injury by making repairs, and therefor rests primarily upon him who has control and possession of the premises.” Beaulac v. Robie, 92 Vt. 27, 32 108 A. 88, 90 (1917).   This decision applies to this case. Here, plaintiff must seek redress from those who invited decedent to the property because the property was in their possession and under their control. Vermont law has recognized this rule for more than a century, and we find no reason to disturb this longstanding precedent now.

Plaintiff argues on appeal landlord owed decedent a duty to protect, relying mainly on §§ 343 and 343A of the Restatement (Second) of Torts. Sections 343 and 343A of the Restatement (Second) of Torts, covering duties that land possessors owe to their invitees. do not apply here because plaintiff did not allege that landlord was the “possessor” of the Elmore Road property. “Possessor” is  defined in Restatement (Second) of Torts § 328E as, ordinarily, “a person who is in occupation of the land with intent to control it.”

We reject Plaintiff’s further argument that a duty arises from foreseeability of harm and that this is jury issue.  Alleging foreseeable harm cannot sustain a negligence action where no legal relationship is alleged to have existed between parties. While Vermont courts consider foreseeability in determining whether one party owed a duty to another party in a negligence suit,  “[f]oreseeability of injury, in and of itself, does not give rise to a duty.” ¶ 8,2016 VT 21,¶ 8, ¶ 18.   Instead, a legal relationship must be alleged between parties before a court may reach the question of duty, See Haupt v. Triggs, 2022 VT 61, ¶ 12, (holding that no indemnification duty can arise where no legal relationship is alleged to have existed between parties).  Courts reach the duty question, where they may properly consider foreseeability, only where a legal relationship linking one party to the other is alleged because legal duties are dependent upon and coextensive with legal relationships. Haupt, 2022 VT 61, ¶ 12; Deveneau, 2016 VT 21, ¶ 18

Lastly, plaintiff argues that the civil division erred in drawing three inferences favorable to landlord: “[f]irst, the court made an inference that the landlord would not have reason to expect that Scott Fleurrey would nevertheless suffer physical harm from the pond because he lived with a caretaker at the property”; second, the civil division inferred “that the care provider would have Scott Fleurrey under her immediate supervision at all times”; and third, the civil division inferred “that the pond is a ‘natural’ pond.”  This Court “review[s] the trial court’s disposition of a motion to dismiss de novo, and may affirm on any appropriate ground.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 959 A.2d 990 (mem.).The inferences were harmless because plaintiff’s claim would not survive a dismissal motion in their absence.

Plaintiff’s claims cannot survive a dismissal motion, because (1) our precedents require an invitee to seek redress for injuries sustained on negligently maintained property from the land possessor who invited them to the defective property, rather than from the absentee landlord; (2) §§ 343 and 343A are inapplicable because plaintiff did not allege that landlord was the possessor of the Elmore Road property; and (3) no duty can arise where, as here, no legal relationship is alleged to have linked the parties.

Affirmed.

How cited

SCOVT NOTE: The rule of Beaulac v. Robie is codified in the First and Second Restatements as §354. This section and its exceptions in §§ 355 to 362  have been replaced by the  Restatement (Third) of Torts: Phys. & Emot. Harm  §§ 7 & 53 (2012), the latter of which is  titled “Duty of Lessors.”

In the view of the Third Restatement, “foreseeability” is an element in the determination of negligence but not  the determination of duty. Restatement (Third) of Torts: Phys. & Emot. Harm §7, comment j (2010) See Kuligoski v. Rapoza, 2018 VT 14 (Reiber CJ, dissenting)

 

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.

Plaintiff in premises liability case had sufficient evidence that defendant had a duty, despite the obvious danger, not to order plaintiff roofer to go onto a frosted roof.

LeClair v. LeClair, 2017 VT 34 (May 12, 2017)

DOOLEY, J.. Plaintiff appeals from the trial court's grant of summary judgment to defendant, plaintiff's grandfather, in this negligence action. Plaintiff argues that the trial court erred by concluding that defendant owed him no duty. We reverse and remand.

Plaintiff fell from a second-story roof and landed on the paved driveway below, sustaining serious and permanent head and spinal injuries while working to help replace the roof on the building in which defendant has his office. Plaintiff claims that he initially decided not to work on the roof because the frost made it slippery but changed his mind when defendant arrived at the property and ordered him to begin work. Plaintiff contends that the facts alleged in the complaint and that emerged through discovery presented a jury question as to whether defendant breached his duty to exercise reasonable care in demanding that plaintiff get on the frost-covered roof.

The critical issue in this case is whether defendant, under the circumstances, should have expected that plaintiff would not protect himself from the danger that was open and obvious to both of them. Under § 343 of the Restatement (Second) of Torts a "possessor of land" may be liable "for physical harm caused to his invitees by a condition on the land if the possessor "should expect that they will not discover or realize the danger, or will fail to protect themselves against it." Section 343 should be read together with § 343A, which provides that "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts § 343A

We recognize that some of our older cases concerning this area of the law have found no liability to an invitee when an injury was caused by a condition that was obvious or known to the invitee. These decisions arose when contributory negligence was a total defense to negligence liability.We concur with the holding of Wisdom v. TJX Companies, Inc., 410 F. Supp. 2d 336, 344 (D. Vt. 2006), that while "Vermont law has traditionally afforded a measure of protection to business owners whose invitees injure themselves by disregarding obvious dangers," this protection now bears more on the plaintiff's comparative negligence than on the defendant's duty of care.

We conclude that the facts of this case, as alleged, do not preclude a finding of duty under § 343 and § 343A, The key alleged fact in this case is that defendant, in a position of authority vis-à-vis plaintiff, ordered him to go onto the frosted roof despite the obvious danger involved. A jury could conclude that, in ordering plaintiff to climb onto the roof despite its dangerous condition acknowledged by both defendant and plaintiff, defendant should have anticipated that the condition of the roof presented an unreasonable risk of harm to plaintiff. A jury could conclude that defendant breached a duty to protect plaintiff from encountering an open-and-obvious dangerous condition on his property by demanding that he encounter the dangerous condition. Accordingly, the superior court's grant of summary judgment to defendant on plaintiff's premises liability claim was inappropriate

ROBINSON, J., concurring in part and dissenting in part. I cannot join the majority's conclusion that defendant, as the property owner, can be held liable pursuant to the common law of premises liability for injuries resulting when a roofer climbed onto a frost-covered roof, stripped of shingles and covered with underlayment, thereby encountering dangers that were obvious and acknowledged by plaintiff before he climbed onto the roof. The majority's analysis suffers from two critical flaws: First, it misconstrues the scope of a landowner's common law duties concerning the condition of the premises in circumstances like this. Second, it rests on the assertion that defendant's familial relationship with plaintiff gave defendant "authority" over plaintiff such that defendant was legally accountable as landowner for plaintiff's choices.

I is difficult to imagine what the landowner's duty would be in this case. It clearly isn't a duty to warn, because there is no dispute that plaintiff was fully on notice of the danger. The reality is, this is not really a premises liability case at all. That is, plaintiff's claim is not really predicated on unreasonably dangerous conditions of the premises. Plaintiff's claim is that his grandfather goaded him into doing something dangerous, and he was injured as a result. This isn't a premises liability claim. It is not tied to defendant's status as landowner, or a breach of any duty with respect to the condition of the land.

In connection with the premises liability claim, there is no evidence that plaintiff was not competent, or had a special, cognizable vulnerability. Plaintiff was undisputedly a mature, twenty-seven-year-old man at the time of the accident. If there is a tort theory that supports liability when a defendant urges another competent adult to undertake dangerous activity, plaintiff has not pled or argued it.

I dissent from the majority's analysis of the premises liability claim. I would affirm that claim.


SCOVT NOTE: An example of where the Restatement says the possessor “should anticipate the harm despite such knowledge or obviousness” is where “the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Restatement (Second) of Torts § 343A, comment f. (1965) The current Restatement's view on “open and obvious" dangers is stated in Restatement (Third) of Torts: Phys. & Emot. Harm § 51 (2012), comment k.  Compare Menard v. Lavoie, 174 Vt. 479, 806 A.2d 1004, 1006 (2002) (mem.) (homeowners not negligent as a matter of law for spiral staircase fall because "[w]hatever dangers the stairs posed were obvious to any observer, and were well known by plaintiff”) with Ainsworth v. Chandler, 2014 VT 107  (holding a reasonable jury could conclude that either the danger on a stairway was not open and obvious or "that defendant should have foreseen the harm even if the danger was obvious.").

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.

Torts. Duty. Premises liability. Horses. Landowner had no duty to passing motorist to prevent escape of horse not in his control.

DEVENEAU v. WIELT, 2016 VT 21 (filed March 4, 2016).

SKOGLUND, J. Plaintiff was injured while diving in a public highway when he struck a horse owned by Susan Wielt, who leased a house and land from Brian Toomey. Toomey moved for summary judgment, arguing he had no duty to keep the horse enclosed or to prevent its escape. The trial court granted summary judgment, and plaintiff appeals. We hold that Toomey owed no duty to plaintiff and affirm.

Toomey gave Wielt permission to keep two horses, an Arabian mare and a thoroughbred on his property and to pasture them there on the condition that Wielt take responsibility for all care of the horses and maintain a fence to keep them enclosed.

Our question on appeal is: What duty, if any, runs from Toomey, as noncustodial landowner, to plaintiff? Vermont common law imposes a general duty of ordinary care: to act as a reasonably prudent person would in similar circumstances. But whether there is a cognizable legal duty that supports a particular tort action depends on a variety of public policy considerations and relevant factors and is primarily a question of law.

Our decision in Wright v. Shedd . 122 Vt. 475, 177 A.2d 240 (1962). did not go so far as to absolve all landowners of the duty to prevent harm from horses that escape from their property, but it implied that such a duty will not attach absent some involvement in the ownership, management, or control of the horse. Ownership of the land was not enough 20 V.S.A. § 3349(a) and other provisions demonstrate the Legislature's intent that only the horse's "owner or keeper" is liable in a civil action for damages suffered as a result of a horse's escape.

We reject plaintiff’s argument that landowner owes a duty pursuant to Restatement (Second) of Torts § 379A (1965). Under that provision, a landowner may be liable to persons outside of the land caused by activities of the tenant "if, but only if," the landowner "knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken." We cannot say there is an unreasonable risk in the ordinary course of pasturing that horses contained by a fence will escape and pose a danger to passing motorists.

Because landowner had no connection to the ownership, management, or control of the injurious horse or of the fence containing it, we cannot impose a duty on him to prevent that horse from escaping and harming passing motorists. We therefore affirm the trial court's grant of summary judgment to Toomey.

ROBINSON, J., dissents because of the “troubling implications of the majority's suggestion that only the owner of a farm animal can be liable in tort to a driver injured on a public highway when the animal escapes.” She would hold the existence of a duty on the part of a landowner to exercise reasonable care to avoid harm to third parties outside the land resulting from activities conducted upon the land depends on the landowner's knowledge of the activities and ability to exercise control with respect to those activities, and that there was s more than sufficient evidence on the issues of knowledge and control to avoid summary judgment: (1) evidence that Toomey never transferred possession of the property that was inadequately fenced; and (2) evidence that, while retaining the ability to control activities on the property, Toomey was fully aware of the state of the fencing.

Rule 12(b)(6) dismissal of suit against attorney by non-client affirmed. Attorney owes no duty in contested proceeding to the adverse party. Elements of fraud not alleged with particularity.

Felis v. Downs Rachlin Martin, PLLC, 2015 VT 129 [filed October 16, 2015]

DOOLEY, J. This case arises out of a divorce proceeding between plaintiff and his former wife. DRM represented wife in the divorce proceeding. Plaintiff claims that “DRM knowingly submitted false material evidence” or “participated in the submission of false material evidence” to the court with the intent and effect of improperly influencing the outcome of the trial, causing damage and injury to plaintiff. Plaintiff appeals the court’s decision granting defendant’s motion to dismiss plaintiff’s claims of breach of fiduciary duty and fraud. We affirm

The court granted defendants’ Rule 12(b)(6) motions, concluding that: (1) DRM owed no duty to plaintiff on which he could base a claim for breach of fiduciary duty; and (2) plaintiff failed to allege the necessary elements of fraud in his complaint. With respect to the fiduciary duty claim, the court stated that a party to litigation cannot assert negligence or breach of fiduciary duty against opposing counsel. With respect to the fraud claim, the court found that the plaintiff failed to allege that DRM directed the false statements to plaintiff, rather than the court, that he was unaware the statements were false, or that he relied on any allegedly false statements.

1.

It is well established that an attorney owes no duty to an adverse party.  Hedges v. Durrance, 2003 VT 63, ¶ 6. “This privity rule ensures that ‘attorneys may in all cases zealously represent their clients without the threat of suit from third parties compromising that representation.’ ” Id. (quoting  Bovee v. Gravel,, 174 Vt. 486, 487, 811 A.2d 137, 140 (2002) (mem.)). The rationale behind this policy is particularly salient “where, as here, the third party is the client’s adversary who is also represented by her own counsel in the proceedings.” Id.

To maintain such an action against another party’s attorney, the third party must demonstrate that “the primary purpose and intent of the attorney-client relationship itself was to benefit or influence the third party.” Hedges, 2003 VT 63, ¶7. (quotation omitted).  As in Hedges, we will not review DRM’s alleged duty of care to the marital estate “independently of the larger adversarial context.” Id. We therefore affirm the judgment of the superior court that plaintiff has failed to state a claim for breach of fiduciary duty

2.

To maintain a cause of action for fraud, plaintiff must demonstrate five elements: “(1) intentional misrepresentation of a material fact; (2) that was known to be false when made; (3) that was not open to the defrauded party’s knowledge; (4) that the defrauded party act[ed] in reliance on that fact; and (5) that thereby harmed.”  Estate of Alden v. Dee 2011 VT 64, ¶ 32, 190 Vt. 401, 35 A.3d 950. Failure to prove any one of the five elements defeats the fraud claim. Id. We focus on the third and fourth elements, which were central to the superior court’s discussion. We conclude, as did the superior court, that plaintiff has failed to allege facts to support these two elements.

With respect to the third element, plaintiff’s knowledge of the alleged falsity, the statements in his complaint directly contradict the presence of this element. Drawing all reasonable inferences from these statements, plaintiff was fully aware of DRM’s discovery practices early on.

With respect to the fourth element, we find no allegation to support a claim that plaintiff relied on defendants’ alleged misrepresentations. Plaintiff acknowledges that his complaint does not explicitly allege reliance. In essence, plaintiff asks us to assume reliance, but reliance is a required element of fraud that plaintiff has the burden to plead and prove “with particularity.” V.R.C.P. 9(b).  Allegations about defendants’ intent in making the alleged misrepresentations says nothing about plaintiff’s justifiable reliance, a required element of fraud. See  Sugarline Assocs. v. Alpen Assocs.., 155 Vt. 437, 445, 586 A.2d 1115, 1120 (1990) (stating that “with any action in fraud” plaintiff is required to show “justifiable reliance upon the misrepresentation” (quotation omitted)); Restatement (Second) of Torts § 531 (1977) (requiring justifiable reliance for recovery under fraudulent misrepresentation)

In other contexts third-party reliance, without direct reliance by the plaintiff, is insufficient to satisfy the reliance requirement. Glassford v. Dufresne & Assocs.., 2015 VT 77, ¶¶ 22-23. A party cannot bring a private cause of action for tort under a theory of fraud on the court. We can find no case where a court has accepted a third-party reliance claim on the basis that the reliance was by the court and the plaintiff was a litigant who had a full opportunity to respond to the allegedly fraudulent evidence. We need not determine whether we ever would accept a third-party reliance theory in a fraud case to hold that we would not accept it on the factual situation here.

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. 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.

Police not liable to victim for failure to prevent crime.

Baptie v. Bruno, 2013 VT 117(06-Dec-2013)

BURGESS, J. Plaintiffs administrators of the estate of their son, appeal summary judgment in favor of defendant, a former police officer, dismissing their lawsuit alleging the officer was liable for the death of their son as the result of his negligent investigation of their complaint about harassing phone calls against a man who murdered their son four days after they made the complaint. We hold defendant is entitled to qualified official immunity from plaintiffs’ lawsuit and that, in any event, plaintiffs cannot prove all of the elements of their negligence or intentional infliction of emotional distress (IIED) claims. Accordingly, we affirm the superior court’s grant of summary judgment in defendant’s favor.

Because plaintiffs cannot show either that defendant’s conduct in responding to their complaint was ministerial rather than discretionary in nature or that defendant acted in bad faith or violated clearly established law, defendant is immune from their lawsuit claiming that his inadequate investigation of their complaint made him liable for their son’s murder.

In any event, plaintiffs cannot prove that defendant owed them a duty to prevent the murder of their son The general rule is that “crimes committed by a third party fall within the realm of the unforeseeable, and therefore cannot form the basis for [tort] liability.” Edson v. Barre Supervisory Union # 61, 2007 VT 62, ¶ 13, 182 Vt. 157, 933 A.2d 200. Defendants in civil tort actions may be held responsible for protecting a person against the criminal act of another “only where the defendant had special knowledge or notice upon which to impose a duty to anticipate the wrongful act.” Id.; compare Sabia v. State, 164 Vt. 293, 305-06, 669 A.2d 1187, 1195-96 (1995) (concluding that child protection agency had duty to protect two sisters from known abuser by virtue of its awareness of abuse and its statutory duty to protect abused children) with Estate of Sumner v. Dep’t of Soc. & Rehab. Servs., 162 Vt. 628, 629, 649 A.2d 1034, 1036 (1994) (mem.) (concluding that child protection agency had no duty to anticipate sexual assault and murder perpetrated by child under its supervision).

Plaintiffs cannot prove that defendant had a special relationship or notice upon which to base his liability for Bruno’s murder of their son. Defendant initially told plaintiffs that he would investigate their complaint, and then later told them that he would attempt to locate Bruno and charge him with the misdemeanor crime of harassment by telephone. Defendant neither promised, nor had a duty, to conduct his investigation in a particular manner. Defendant never assured or even suggested to plaintiffs that he would seek to have Bruno incarcerated in the near future. In short, viewing the facts most favorably to plaintiffs, plaintiffs cannot show that defendant owed them a special duty to prevent Bruno’s murder of their son.

An IIED claim can be sustained only where the plaintiff demonstrates ‘outrageous conduct, done intentionally or with reckless disregard of the probability of causing emotional distress, resulting in the suffering of extreme emotional distress, actually or proximately caused by the outrageous conduct.even if defendant’s investigation proved to be inadequate or incomplete, he made some effort to locate and charge Bruno for what he reasonably believed to be a misdemeanor crime. This conduct cannot be considered outrageous in the extreme, and the superior court correctly granted defendant summary judgment on the IIED claim.

Torts. Hospital had no duty to prevent assault on patient by police; but nurse committed battery if nurse drew blood at police request without patient consent.

O'Brien v. Synnott, 2013 VT 33 (17-May-2013)(Robinson, J.)  


Plaintiff Kelley S. O’Brien sued defendants Fletcher Allen Health Care (FAHC) and FAHC nurse Catherine Synnott for injuries he suffered when allegedly assaulted by police officers after defendants negligently allowed those officers unrestricted access to him in the hospital while he was recovering from surgery, and for drawing his blood at the request of law enforcement officers and without his consent. The trial court granted defendants summary judgment, concluding that it was not reasonably foreseeable that the police officers would harm plaintiff if allowed unsupervised access, and that nurse had plaintiff’s apparent consent to draw the blood. We affirm in part and reverse in part.

Defendants’ duty to protect plaintiff does not extend to protecting him from attacks by third parties that are not reasonably foreseeable. See also Restatement (Second) of Torts § 314A cmt. e (1965) (stating that defendant is “not required to take precautions against a sudden attack from a third person which [the defendant] has no reason to anticipate”); id. § 320 (explaining that actor has duty to control conduct of third persons only when actor “knows or should know of the necessity and opportunity for exercising such control”). Considering the facts in the light most favorable to plaintiff, a law enforcement officer requested an evidentiary sample of his blood in the emergency room, and plaintiff refused. The officer said he would get a warrant. Plaintiff was taken from the emergency room for emergency surgery. While he was in the post-anesthesia care unit (PACU) recovering from the surgery, his nurse left the area, allowing a group of police officers the opportunity to access plaintiff’s room. The officers asked plaintiff for a blood sample. When plaintiff refused, they held him down, covered his mouth, and tried, unsuccessfully, to take his blood by force. We agree with the trial court that plaintiff has not identified any evidence that defendants should have anticipated that the police officers would attack plaintiff if left unsupervised.

A provider commits battery if the provider performs a procedure without the patient’s consent. Christman v. Davis, 2005 VT 119, ¶ 6, 179 Vt. 99, 889 A.2d 746. Later, nurse returned and drew plaintiff’s blood. Nurse did not disclose to plaintiff her purpose for drawing blood, or that the blood draw was not in connection with medical treatment for plaintiff’s benefit. Nurse drew the blood for the purpose of providing a sample of plaintiff’s blood to the police. Plaintiff did not object to her drawing the blood, but also did not consent to her drawing his blood for a nonmedical purpose. In the absence of undisputed evidence that plaintiff knew or should have understood the nonmedical purpose of the blood draw, the fact that he did not object does not support the conclusion that his conduct amounted to apparent consent. Defendants argument relies on inferences in defendants’ favor that we cannot draw at the summary judgment stage.

We reject Defendant’s policy argument that medical providers should be immune from civil liability for battery when they draw a blood sample from an individual suspected of driving under the influence at the request of law enforcement officers without regard to whether the individual consents to the blood draw. The Legislature has expressly limited the liability of medical providers in certain circumstances related to blood draws and individuals suspected of driving under the influence, inapplicable here, but has not expressly required medical personnel to comply with law enforcement requests to draw blood, and has not immunized those providers from liability for complying. Without legislative action we conclude that when a patient is conscious and the authority to draw blood depends upon actual consent, the police officers’ request does not protect defendants from liability for drawing the blood without plaintiff’s consent.

Medical malpractice. Psychiatrist who gave a single 90-minute consultation had a doctor-patient relationship and a duty of care, therefore summary judgment on issue of duty was error.

White  v. Harris,  2011 VT 115 (mem.)

  Plaintiffs appeal from a superior court order granting summary judgment to defendant Fletcher Allen Health Care, Inc. in this wrongful death action alleging medical malpractice.  The case arises from the suicide of plaintiffs’ fourteen-year-old daughter.  Plaintiffs sued defendant, which employed a psychiatrist who was briefly involved with decedent’s case through a telepsychiatry research study 10 months before her suicide.  Defendant moved for summary judgment asserting that its doctor had no duty to decedent when she committed suicide because there was no doctor-patient relationship.  Plaintiffs argue that summary judgment was improperly granted on the issue of the duty owed to decedent by the psychiatrist.  We agree, and thus reverse and remand for additional proceedings. 

The psychiatrist had no interaction with plaintiffs’ decedent or any member of her treatment team after a single, ninety-minute video-conference session with the psychiatrist in August 2006.  Following the session, the psychiatrist provided a diagnostic impression of decedent and set forth recommendations for an initial treatment plan that no follow-up services would be provided, and no medication prescriptions would be directly provided by the doctor.   On June 10, 2007, decedent committed suicide.  . 

We hold that the ninety-minute consultation performed in this case created a doctor-patient relationship.  We acknowledge that the telepsychiatry research study conducted by the doctor provided no treatment component directly to decedent, other than recommendations to her treatment team.  However, through this consultation, a limited doctor-patient relationship was established and we conclude that a duty of due care applies.  Through this consultation, defendant’s doctor assumed a duty to act in a manner consistent with the applicable standard of care so as not to harm decedent through the consultation services provided.   We also hold that even if the doctor-patient contact had ended, this does not terminate the doctor’s responsibility for the consequences of any lapses in his duty to provide services consistent with the applicable standard of care for the consultation. The doctor had a duty of due care in his professional contact with decedent, which was not extinguished by any formal written act of termination of their professional relationship. 

Because of the procedural posture of this case the scope of defendant’s duty and the standard of care cannot yet be determined.  In evaluating the standard of care, we must not conflate the existence of a duty with the appropriate standard of care, an issue that takes us beyond the limited facts in the record before us and was not raised below. Because a duty applies to the service provided, we reverse and remand for additional proceedings

Municipal attorney did not owe a professional or other fiduciary duty to municipal employee.

Handverger v. City of Winooski, 2011 VT 134 (Burgess, J. )

Plaintiff, the former city manager of Winooski, appeals from the trial court’s summary judgment in favor of the Winooski city attorney.  Plaintiff sued the city attorney, individually, for breach of fiduciary duty in the course of municipal infighting over plaintiff’s performance as manager and the city’s decision to dismiss him.  Plaintiff’s complaint is that the city attorney breached a duty of loyalty by threatening cross-examination at a municipal hearing and by signing a disparaging letter and press release calling for his resignation.   The trial court determined that the city attorney owed plaintiff no fiduciary duty beyond the attorney’s duty to the city.  We affirm.

There was no evidence or finding that the city attorney, implicitly or explicitly, represented plaintiff individually or in any capacity other than as city manager.   Lacking any lawyer-client relationship the city attorney did not owe plaintiff a duty of faithful conduct for the personal benefit of plaintiff.

Nor did a fiduciary duty exist by operation of law due to the parties’ dealings. In Bovee v. Gravel, 174 Vt. 486, 811 A.2d 137 (2002) (mem.), we acknowledged some jurisdictions relax the strict attorney-client privity basis for legal malpractice where injured third parties could show the “client’s purpose in retaining the attorney was to directly benefit a third party.”  174 Vt. at 488, 811 A.2d at 140.  Plaintiff presents nothing approaching such a relationship of privity between himself and the city attorney.  There is no evidence that the attorney was appointed or retained to serve plaintiff’s personal interests.  Nor is there evidence of surrounding circumstances, or interaction between the parties, suggesting a blurring of municipal objectives with plaintiff’s own.

Attorney not liable to non-client for nondisclosure of a matter of opinion during a negotiation, where underlying facts equally available.

Lay v. Pettengill, 2011 VT 127 (Dooley, J.  )

 Plaintiff David M. Lay appeals from an order granting summary judgment to DPS staff attorney Novotny on Lay’s claim of fraudulent nondisclosure. Lay’s claim stems from an internal investigation into his behavior as a state trooper. Lay hired an attorney who negotiated a resolution to the internal charges with attorney Novotny. Lay, alleges attorney Novotny had a duty to inform him during the negotiation process that that she believed Lay’s conduct might give rise to a criminal action, even though there was no discussion or inquiry between the parties’ attorneys about  criminal matters.   As a result of the negotiation, Lay resigned and executed a release in exchange for eight weeks of pay and an agreed-upon process for addressing future employment referral requests.   Following Lay’s resignation, criminal charges were brought. Lay argues that the superior court erred in granting judgment to defendant on his claim of fraudulent nondisclosure.  We affirm.

 “Fraudulent concealment involves concealment of facts by one with knowledge, or the means of knowledge, and a duty to disclose, coupled with an intention to mislead or defraud.”  “[A]s between bargaining adversaries there can ordinarily be no justifiable reliance upon an opinion.  The recipient is not justified in accepting the opinion of a known adversary on the law and is expected to draw his own conclusions or to seek his own independent legal advice.”    “Failing to disclose information is not fraudulent unless one has an affirmative duty to disclose, as in a confidential or fiduciary relationship.” A duty to disclose may arise “from the relations of the parties, such as that of trust or confidence, or superior knowledge or means of knowledge.”   “In arm’s-length transactions,” however, “where facts are equally within the means of knowledge of both parties, neither party is required to speak, in the absence of inquiry respecting such matters.”  In context of fraudulent nondisclosure cases that a “defendant may reasonably expect the plaintiff to make his own investigation, draw his own conclusions and protect himself”)   

As an initial matter, at issue is a subjective opinion, not a statement of fact. Lay knew the facts on which Novotny based her opinion about his potential criminal liability.  He and his attorney had full access to the information and presumably both Lay and his attorney read these materials before engaging in settlement negotiations. Lay and his attorney could have inquired whether a criminal referral had been made. Novotny and Lay were adversaries.   Novotny was representing DPS, and Lay had his own lawyer who was actively involved in the negotiation process.   Each attorney owed a duty of care to her own client, not to third parties

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).

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.