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.

States Attorneys are “high executive officers” who have absolute immunity from tort liability for all conduct within the general authority of their office, including personnel decisions, regardless of whether the conduct is closely associated with the litigation process.

O’Connor v. Donovan, 2012 VT 27 (Burgess, J.)


Plaintiff police officer filed a complaint against defendant State’s Attorney, stating claims for defamation, intentional infliction of emotional distress, and intentional interference with plaintiff’s employment, for conduct that included meeting with plaintiff’s supervisors to criticize his job performance and falsely accuse him of dishonesty; declining to file charges based on plaintiff’s affidavits; threatening not to work with plaintiff criticizing plaintiff’s work; impugning plaintiff’s honesty to other prosecutors; giving false testimony in a civil suit against plaintiff; and “leaking” harmful information about plaintiff to criminal defense attorneys. The principal question presented by this appeal is whether, and to what extent, a state’s attorney who serves as a county’s chief law enforcement officer is entitled to official immunity from civil liability for the allegedly tortious conduct. The trial court on summary judgment held that liability for the acts complained of was precluded by either qualified or absolute immunity, or was otherwise barred. We conclude that the State’s Attorney was entitled to absolute immunity, and therefore affirm.


Our early official-immunity decisions distinguish common-law immunity applicable to state law claims from the federal immunity doctrine applicable to § 1983 claims. The former provides absolute immunity for “high executive” officials such as the attorney general and agency heads for acts committed within the scope of their authority and only qualified immunity for lower level officials.  Levinsky v. Diamond, 151 Vt. 178, 185 (1989) (Attorney General and Commissioner of Welfare as the “highest executive officers in their respective governmental units” entitled to absolute immunity from state law claims if the acts complained of “were performed within the general authority of those offices.”) The latter employs a purely functional analysis largely divorced from the status of the official in question. 


 In Muzzy v. State, 155 Vt. 279 (1990) the trial court granted summary judgment in favor of a state’s attorney, and we affirmed, holding that “acts related to the dismissal or processing of an information, as in the instant case, are within the prosecutorial function and therefore absolutely immune from civil suit.” Id. at 281. A footnote arguably limits this immunity to prosecutors’ quasi-judicial functions as judicial officers as distinct from their role as executive officers. Id. at 280, n.* We decline plaintiff's invitation to so limit defendant's immunity here.


In light of the considerable statutory and constitutional powers accorded Vermont’s state’s attorneys, we hold that state’s attorneys have the same immunity for “high executive officials” that their State counterpart, the Attorney General, enjoys for conduct within the general authority of the office. Levinsky, 151 Vt. at 185. To the extent that Muzzy suggests otherwise, it is disapproved. Subsequent decisions that may have interpreted Muzzy to confine a state’s attorney’s absolute immunity in state tort actions to those acts closely associated with the litigation process, such as Huminski v. Lavoie, 173 Vt. 517, 520-21(2001) (mem.), are to that extent overruled.


This holding has no effect on the immunity standard governing federal claims. Here we are concerned solely with state law claims, specifically defamation, intentional interference with employment, and intentional infliction of emotional distress.


Under the common law immunity standard applicable to the state law claims, we conclude the acts complained of fall within the general scope of defendant’s authority as Chittenden County State’s Attorney, thereby entitling him to absolute immunity from suit.  It was well within defendant’s authority as state’s attorney to decline to file criminal charges or search-warrant applications based on his dissatisfaction with plaintiff’s affidavits. It was equally within defendant’s general authority as the chief county law enforcement officer to review plaintiff’s job performance; discuss it with other prosecutors in the office, plaintiff’s supervisors, and the State Police; and take such measures as defendant deemed fit—including declining to work with plaintiff in the future. Supervising the investigative activities of police officers that result in the referral of cases for prosecution and reviewing those matters with other law enforcement personnel falls within the general oversight authority of the state’s attorney as the chief law enforcement officer in the county. Disclosing nonprivileged information concerning plaintiff’s performance as a law enforcement officer also falls within defendant’s general authority and responsibility as chief law enforcement officer to ensure the effective and uniform enforcement of the law. Plaintiff’s allegation that defendant made patently false and defamatory statements and that defendant was allegedly motivated by ill will or a malicious design to interfere with plaintiff’s livelihood does not diminish the absolute immunity afforded conduct otherwise within the general scope of defendant’s authority.