Kane v. Lamothe ( 2007 )


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  • 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 91
    No. 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).