Kane v. Lamothe , 2007 Vt. 91 ( 2007 )

Kane v. Lamothe (2006-229)
2007 VT 91[Filed 24-Aug-2007]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
2007 VT 91No. 2006-229
Joanne Kane Supreme Court
On Appeal from
v. Franklin Superior Court
Trooper Maurice Lamothe March Term, 2007
and the State of Vermont
Geoffrey W. Crawford, J.
Kurt M. Hughes and Margaret Glazier, Legal Assistant (On the Brief) of
Murdoch Hughes & Twarog, Burlington, for Plaintiff-Appellant.
William H. Sorrell, Attorney General, and Eve Jacobs-Carnahan, Assistant
Attorney General, Montpelier, for Defendants-Appellees.
PRESENT: Reiber, C.J., Dooley, Johnson, and Burgess, JJ.
¶ 1. BURGESS, J. Plaintiff appeals from a trial court order
dismissing her claims of negligence and gross negligence against defendants
State of Vermont and Trooper Maurice Lamothe. These claims arise from an
alleged failure by the trooper to properly investigate a reported incident
of domestic abuse against plaintiff that continued after the trooper left
the scene. We conclude that the State and the trooper owed no special duty
to plaintiff. We therefore affirm the trial court's dismissal. (FN1)
¶ 2. In reviewing a motion to dismiss, we accept all of the
nonmoving party's alleged facts as true to determine whether there are any
circumstances that may entitle that party to relief. Alger v. Dep't of
Labor & Indus., 2006 VT 115, ¶ 12, __ Vt. __, 917 A.2d 508. "We treat all
reasonable inferences from the complaint as true, and we assume that the
movant's contravening assertions are false." Id.
¶ 3. Plaintiff's complaint alleges the following relevant facts. On
November 18, 2002, plaintiff's former boyfriend sexually assaulted and
battered her, leaving visible marks. The boyfriend had a history of
domestic violence and was on probation at the time of the assault. After
the sexual assault and battery, plaintiff's son told the clerk at a nearby
store that plaintiff was still in danger. The clerk called 911, and the
trooper responded. Plaintiff's son showed the trooper to plaintiff's
apartment, where the boyfriend opened the door and let him in. The trooper
interviewed the boyfriend separately while plaintiff was in the bedroom.
After that interview, the boyfriend retrieved plaintiff from the bedroom,
and the trooper interviewed plaintiff in the apartment doorway within
earshot of the boyfriend. The trooper observed the marks on plaintiff's
face, but left the apartment without making an arrest or investigating
further. After the trooper left, the boyfriend sexually assaulted and
battered plaintiff a second time.
¶ 4. In the early morning hours of the following day, the
boyfriend broke into plaintiff's apartment and again beat and sexually
assaulted her. Afterwards, he dragged plaintiff down the stairs, causing
her bodily injury that required medical attention. At the hospital,
plaintiff was treated for a bruised lip, depression, anxiety, and post-rape
trauma. A week later, the boyfriend was taken into custody and charged
with second-degree aggravated domestic assault, burglary and sexual
assault. He was found guilty of domestic assault and sexual assault and
was sentenced to twenty to forty-five years.
¶ 5. Plaintiff subsequently filed the present suit, claiming that
negligent supervision of the trooper by the State and gross negligence by
the trooper led to the continued physical and sexual abuse of plaintiff.
Defendants moved to dismiss, arguing that sovereign immunity barred the
claims against the State under the Vermont Tort Claims Act, 12 V.S.A. §§
5601-06, and further arguing that plaintiff failed to state a claim of
gross negligence, as was necessary to overcome the trooper's statutory
immunity. The court granted the motion, holding that plaintiff's claims
against the State were not permitted under the Tort Claims Act because
there was no private analog to the police action at issue, and the
allegations against the trooper failed to depict the total absence of care
required to support a claim of gross negligence. (FN2) Plaintiff appealed.
¶ 6. Under the doctrine of sovereign immunity, claims against the
State are barred "unless immunity is expressly waived by statute." Sabia
v. State, 164 Vt. 293, 298, 669 A.2d 1187, 1191 (1995). The Tort Claims
Act waives immunity in cases where liability arises from "injury to persons
. . . caused by the negligent or wrongful act or omission of an employee of
the State while acting within the scope of employment, under the same
circumstances, in the same manner and to the same extent as a private
person would be liable to the claimant . . . ." 12 V.S.A. § 5601(a).
"Thus, the State remains immune for governmental actions for which no
private analog exists" and "waives its immunity only to the extent a
plaintiff's cause of action is comparable to a recognized cause of action
against a private person." Sabia, 164 Vt. at 298, 669 A.2d at 1191(quotations omitted). This approach bars negligence actions against the
State in connection with purely "governmental functions" so as to avoid
imposing "novel and unprecedented liabilities" on the State. Denis Bail
Bonds, Inc. v. State, 159 Vt. 481, 485-86, 622 A.2d 495, 498 (1993).
¶ 7. Before determining whether a private analog exists, we must
first determine whether the factual allegations satisfy the necessary
elements of a recognized cause of action. See id. at 487, 622 A.2d at 498.
(FN3) To prove negligence, plaintiff must show that defendant owed her a
legal duty, that a breach of that duty was a proximate cause of harm, and
that she suffered actual damages. Watson v. Dimke, 2005 VT 29, ¶ 9, 178
Vt. 504, 872 A.2d 337 (mem.). In this case, as in most cases of negligence
against the State, the decisive element is duty. See, e.g., Denis Bail
Bonds, 159 Vt. at 487-90, 622 A.2d at 499-500 (holding that State owed no
duty to insurer to disclose evidence of misconduct by insurer's agent).
¶ 8. Ordinarily, the duty owed between strangers does not extend to
controlling the conduct of third persons to prevent physical harm. See
Breslauer v. Fayston Sch. Dist., 163 Vt. 416, 420, 659 A.2d 1129, 1132
(1995). Thus, if the trooper had simply been a passerby happening upon the
scene he would have had no duty to protect plaintiff from being harmed by
her boyfriend. (FN4) However, in certain circumstances the State may take
upon itself a greater, special duty. In determining whether a government
agency has undertaken a special duty of care to a specific person beyond
that extended to the general public, we consider:
(1) whether a statute sets forth mandatory acts for the protection
of a particular class of persons; (2) whether the government has
knowledge that particular persons within that class are in danger;
(3) whether those persons have relied on the government's
representations or conduct; and (4) whether the government's
failure to use due care would increase the risk of harm beyond
what it was at the time the government acted or failed to act.
Sabia, 164 Vt. at 299, 669 A.2d at 1191.
¶ 9. The State's law enforcement duties are provided for by
statute. The Department of Public Safety was created "to promote the
detection and prevention of crime generally." 20 V.S.A. § 1811. Included
within the Department are the state police, who "shall be peace officers
and shall have the same powers with respect to criminal matters and the
enforcement of law relating thereto as sheriffs, constables, and local
police." Id. § 1914. As the trial court concluded, the statutes create no
special relationship between crime victims and law enforcement personnel:
"The officer's duty is owed to the community as a whole. It obviously
encompasses the protection of crime victims, but it is shaped primarily by
the need to investigate and prosecute crimes." Cf. Corbin v. Buchanan, 163
Vt. 141, 144, 657 A.2d 170, 172 (1994) (noting "the absence in Vermont of
any general inference of a private action based on government regulations
whose clear purpose is the general welfare"). The statutes do not set
forth any mandatory acts, much less mandatory acts for the protection of a
particular class of persons. Because the statutes do not create a special
duty, plaintiff relies on provisions of a police manual to establish one.
¶ 10. The Vermont State Police Rules & Regulations, Operational
Policies & Procedures ("Manual") sets forth specific procedures for
investigating a report of domestic violence. The procedures include
interviewing all parties separately and obtaining a sworn statement from
the victim. Manual, § 5, Article VIII, 4.1(A)(2). The Manual also states
that "[a]rrest is the Department's preferred response to domestic violence
because arrest offers the greatest potential for ending the violence." Id.
§ 5, Article VIII, 4.2(A). As the Manual recognizes, however, an arrest
may be made only when "there is sufficient evidence to establish probable
cause." Id. § 5, Article VIII, 4.2(B). This arrest language is in
contrast to the statutorily mandated acts we found sufficient to create a
special duty in Sabia, where the Legislature required that the agency
responsible for child welfare "shall" undertake certain specific procedures
after receiving a report of child abuse. 164 Vt. at 299, 669 A.2d at 1191.
Furthermore, because a police officer's decision to arrest, even under the
Manual, is inherently discretionary, Town of Castle Rock v. Gonzales, 545
U.S. 748, 760 (2005) ("A well established tradition of police discretion
has long coexisted with apparently mandatory arrest statutes."), we cannot
conclude that the Manual created a duty to plaintiff to arrest the
boyfriend. See also V.R.Cr.P. 3(a), (b) ("A law enforcement officer may
arrest without warrant a person whom the officer has probable cause to
believe has committed or is committing a felony [or a misdemeanor in the
officer's presence]" (emphasis added)).
¶ 11. Additionally, the Manual has not been adopted as a rule
pursuant to the Vermont Administrative Procedure Act, 3 V.S.A. §§ 836-44,
and lacks the authority of a statute or regulation. Our test of whether a
specific duty exists asks "whether a statute sets forth mandatory acts for
the protection of a particular class of persons." Sabia, 164 Vt. at 299,
669 A.2d at 1191 (emphasis added). Generally, internal policies and
manuals provide preferred standards but not legal requirements for which
individuals may hold the State liable. Searles v. Agency of Transp., 171
Vt. 562, 564, 762 A.2d 812, 814 (2000) (mem.) (holding that State was
immune from alleged negligent failure to place warning sign at intersection
because placing sign was a discretionary function). Police guidelines and
procedures set forth in manuals do not have the same authority as statutes
and ordinances. Though such manuals may direct or recommend the manner in
which Department employees perform statutorily prescribed duties and may
define an employee's duty to his or her employer, they do not create a duty
to third parties. Kugel v. United States, 947 F.2d 1504, 1507-08 (D.C.
Cir. 1991) (violation of FBI's internal investigation "Guidelines" rejected
as basis for duty in a negligence action); Dep't of Highway Patrol v.
Pollack, 745 So. 2d 446, 450 (Fla. Ct. App. 1999) (per curiam) (collecting
cases), aff'd, 882 So.2d 928, 936-37 (Fla. 2004) (per curiam) ("While a
written policy or manual may be instructive in determining whether the
alleged tortfeasor acted negligently in fulfilling an independently
established duty of care, it does not itself establish such a legal duty
vis-a-vis individual members of the public."). Absent a specific duty owed
to plaintiff, we need not reach the questions of private analog or whether
any other exceptions to the Tort Claims Act apply. See Denis Bail Bonds,
159 Vt. at 490, 622 A.2d at 500.
¶ 12. Having concluded that the State did not owe a special duty to
plaintiff that would support a claim of negligence, we consider plaintiff's
claim of gross negligence by the trooper. (FN5) Gross negligence is a
"heedless and palpable violation of legal duty respecting the rights of
others." Shaw v. Moore, 104 Vt. 529, 531, 162 A. 373, 374 (1932). "Gross
negligence is more than an error in judgment," Hardingham v. United
Couseling Service of Bennington County, Inc., 164 Vt. 478, 481, 672 A.2d
480, 482 (1995) (quotation and citations omitted), it is the failure to
exercise "even a slight degree of care" owed to another. Mellin v. Flood
Brook Union Sch. Dist., 173 Vt. 202, 220, 790 A.2d 408, 423 (2001)
(quotations and citations omitted). Whether an individual was grossly
negligent is ordinarily a jury question, except where reasonable people
cannot differ. Id. The trial court ruled that the facts alleged - the
trooper responded to a report of domestic violence, found a bruised and
bleeding victim, interviewed her within earshot of her boyfriend, and left
without arresting the boyfriend - did not rise to the level of gross
negligence as a matter of law.
¶ 13. On appeal, plaintiff recounts the trooper's numerous alleged
violations of the Manual in support of her argument for gross negligence.
Plaintiff, however, had no right to have the boyfriend arrested by the
trooper, either pursuant to the law of arrest or under the Manual. Nor did
the trooper fail to respond to the distress call made on plaintiff's
behalf. As discussed above, the Manual created no duty to plaintiff, and
the trooper was under no obligation to plaintiff to follow certain
procedures. Assuming, for the sake of argument, that the trooper might
have better investigated the matter and exercised his discretion
differently, plaintiff nevertheless failed to set forth a wholesale absence
of care or indifference to duty owed to her, as is necessary to state a
viable claim for gross negligence. See Hardingham, 164 Vt. at 483, 790
A.2d at 484 ("[A]n error of judgment or a loss of presence of mind . . .
could be viewed as negligent, but not grossly negligent."). Accordingly,
in the absence of a duty, the claim of gross negligence was properly
dismissed.
¶ 14. Finally, plaintiff contends that dismissal was premature
because she did not have adequate time for discovery. However, in deciding
the motion to dismiss, all of plaintiff's allegations were accepted as
true. The purpose of a motion to dismiss "is to test the law of the claim,
not the facts which support it." Powers v. Office of Child Support, 173
Vt. 390, 395, 795 A.2d 1259, 1263 (2002). Thus, discovery should be
unnecessary to determine whether the alleged facts support the requested
relief, and the trial court did not err in precluding further discovery by
granting the motion to dismiss.
Affirmed.
FOR THE COURT:
_______________________________________
Associate Justice
------------------------------------------------------------------------------
Footnotes
FN1. The State moved to strike parts of plaintiff's printed case and brief.
Because we do not consider those parts of plaintiff's filings in reaching
our decision, the motion is denied as moot.
FN2. The court declined to reach defendants' other arguments that the
trooper's actions were discretionary functions exempted from the Act and
that the trooper had qualified immunity, and we need not address these
arguments here.
FN3. Our case law is inconsistent on this point. Some decisions bypass
consideration of the elements of the claim and proceed straight to
consideration of private analog. Compare Sabia, 164 Vt. at 298, 669 A.2d
at 1191 (stating that "Denis requires that we determine whether [a
statutory duty of care] exists under the circumstances," and finding a duty
to exist before reaching the private analog inquiry), with Noble v. Office
of Child Support, 168 Vt. 349, 352, 721 A.2d 121, 123 (1998) (finding no
private analog without determining the existence of a duty) and Lafond v.
Dep't of Soc. & Rehab. Servs., 167 Vt. 407, 409-10, 708 A.2d 919, 920
(1998) (finding no private analog without determining the existence of a
duty). Much of the inconsistency may be explained as this Court's
responding to the particular arguments raised. Regardless, no-duty rules
and immunity rules are often two sides of the same coin. See 1 D. Dobbs,
The Law of Torts § 226, at 576-77 (2001) ("The similarities between no-duty
rules and immunity rules are so great that the two terms can often be used
interchangeably . . . ."). The blurred line is illustrated by our analysis
in Andrew v. State, where we concluded that the statutes concerning
workplace safety inspections did not create any duty to employees of
inspected workplaces and had no private analog. 165 Vt. 252, 256-60, 682
A.2d 1387, 1390-92 (1996).
FN4. Plaintiff argues for application of Vermont's good samaritan statute.
That statute alters the common law duty by requiring that "[a] person who
knows that another is exposed to grave physical harm shall . . . give
reasonable assistance to the exposed person." 12 V.S.A. § 519. The
statute is not applicable in this case because the facts alleged do not
support a finding that trooper knew that plaintiff was exposed to grave
physical harm. Furthermore, the statute "does not create a duty to
intervene in a fight." State v. Joyce, 139 Vt. 638, 641, 433 A.2d 271, 273
(1981).
FN5. "Gross negligence" and "willful misconduct" are excepted from the
general rule that causes of action for acts of State employees must be
brought against the State and not the individual. 12 V.S.A. § 5602(b).