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

Denial of tax abatement affirmed on equitable grounds unrelated to value.

Garbitelli v. Town of Brookfield, 2011 VT 122 (Reiber, C.J. )

Taxpayer appeals from a judgment affirming the Town of Brookfield Board of Abatement’s denial of his request for a tax abatement.  We affirm.

The property was assessed at $1.6 million after taxpayer refused entry to the tax assessor. Taxpayer later allowed entry to the listers for 2009, which resulted in an assessment of $957,000.  Taxpayer then moved for a tax abatement for the years 2007 and 2008 under 24 V.S.A. § 1535(a)(4), which authorizes an abatement in cases involving “a manifest error or a mistake of the listers.”   The Board denied the request, finding that there was no mistake attributable to the listers since they were denied entry and were forced to use the best information available to them.

We review the Board’s decision denying abatement for abuse of discretion.  In contrast to the tax assessment process, in an abatement action the Board is not constrained to value properties at fair market value.  In fact, the whole point of tax abatement is to allow the Board to abate taxes for reasons other than that the property was assessed above fair market value.  A taxpayer may argue before the Board that his assessment was so high as to constitute a “manifest error or a mistake of the listers,” 24 V.S.A. § 1535(a)(4), but the statute is entirely permissive and does not require abatement even if the taxpayer falls within one of the categories allowing for abatement.

 In short, tax abatement is an equitable remedy.  Taxpayer engaged in unfair and inequitable conduct by refusing the listers reasonable access to the property.  The Board properly considered taxpayer’s conduct, and we find no abuse of its discretion in denying his abatement request on this ground. 

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.

Stare decisis.

State v. Carrolton, 2011 VT 131( Johnson, J. )

The State appeals from an interlocutory order granting defendant’s motion to merge into a single count the two counts of lewd-and-lascivious conduct charged by the State.  Relying on State v. Perillo, 162 Vt. 566, 649 A.2d 566 (1994), which involved facts very similar to this case, the trial court ruled that because the alleged offensive touching occurred continuously without any intervening act over a short period of time, the State could not charge defendant with multiple counts of lewd-and-lascivious conduct.  The State on appeal asks this Court to overrule Perillo and hold that the touching of two distinct intimate parts of the body are two separate offenses as a matter of law.  We decline to overrule Perillo and, accordingly, affirm the trial court’s decision.

The State has not demonstrated that, in the seventeen years since we issued Perillo, our holding has “undermined the public welfare, wrought individual injustice, or impeded the administration of justice.”  DeSantis v. Pegues, 2011 VT 114, ¶ 43 (Johnson, J, concurring).  As we have stated before, this Court is not a slavish adherent to the principle of stare decisis, but we will not deviate from policies essential to certainty, stability, and predictability in the law absent plain justification supported by our community’s ever-evolving circumstances and experiences.  See State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem.)  No such showing has been made here.  Accordingly, we decline the State’s invitation to overrule Perillo.

Court has “status” jurisdiction to terminate rights of parent who lacks minimum contacts with Vermont.

In re R.W., 2011 VT 124 (Burgess, J.)

This termination of parental rights case presents novel jurisdictional questions because the parents and children are citizens of Sri Lanka and, although mother and the children have been residents of Vermont for a number of years, father continues to reside in Sri Lanka and has never been to Vermont.  The Department for Children and Families (DCF) petitioned to terminate father’s residual parental rights.  The family division concluded it lacked personal jurisdiction over father.  DCF argues that even though father lacks minimum contacts with Vermont, the court has jurisdiction to adjudicate the status of his children, who were within the court’s jurisdiction.  We reverse the court’s decision as to both parents and remand the cases.

 The critical question in this appeal is whether a child’s relationship to her parents is adjudication exempt from the “‘minimum contacts” test.  “Status cases” are exempt from the United Supreme Court’s jurisprudence that established the minimum contacts test as the basis for jurisdiction for both in personam and in rem case. “[C]cases involving the personal status of the plaintiff, such as divorce actions, could be adjudicated in the plaintiff’s home State even though the defendant could not be served within that State.”  Shaffer v. Heitner, 433 U.S. 186, 201 (1977) (citing Pennoyer, 95 U.S. at 733-35).  The Supreme Court has not defined status jurisdiction or explicitly recognized its application to any type of case other than divorce. In Vermont, we have applied status jurisdiction in divorce actions, but not to other situations, such as custody. 

We conclude that status jurisdiction applies to cases involving termination of parental rights.  Much like the marriage relationship, severance of a parent’s legal relationship to his or her child requires state intervention and is a matter of state concern.  Thus, a child’s home state has jurisdiction to adjudicate the status of a child present there even if the parents lack minimum contacts with the forum. 

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).