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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.

                                        2016 VT 54

                                        No. 2014-396

Carole Kuligoski, Individually and On Behalf of             Supreme Court
Michael J. Kuligoski, Mark Kuligoski and
James Kuligoski                                             On Appeal from
                                                            Superior Court, Windham Unit,
   v.                                                       Civil Division

Brattleboro Retreat and Northeast Kingdom                   May Term, 2015
Human Services


John P. Wesley, J.

Richard T. Cassidy and Matthew M. Shagam of Hoff Curtis, Burlington, for
 Plaintiffs-Appellants.

Ritchie E. Berger and Angela R. Clark of Dinse, Knapp & McAndrew, P.C., Burlington, for
 Defendant-Appellee Brattleboro Retreat.

Stephen J. Soule and Pamela L. Eaton of Paul Frank + Collins P.C., Burlington, for
 Defendant-Appellee Northeast Kingdom Human Services.

Joslyn L. Wilschek and Shireen T. Hart of Primmer Piper Eggleston & Cramer PC, Montpelier,
 for Amicus Curiae The Vermont Association of Hospitals and Health Systems.

O. Whitman Smith of Mickenberg, Dunn, Lachs & Smith, PLC, Burlington, for Amicus Curiae
 Vermont Council of Developmental and Mental Health Services, Inc.

Allan R. Keyes of Ryan Smith & Carbine, LTD., Rutland, for Amici Curiae University of
 Vermont Medical Center, Central Vermont Medical Center and Rutland Regional Medical
 Center.

A.J. Ruben, Montpelier, for Amicus Curiae Disability Rights of Vermont, Inc.


PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morris, Supr. J.,
         Specially Assigned


        ¶ 1.   DOOLEY, J.       This case arises out of the assault of Michael Kuligoski by a

former Brattleboro Retreat patient, E.R., after the patient was discharged from the Retreat, a
mental health treatment facility, and while he was undergoing outpatient treatment with

Northeast Kingdom Human Services (NKHS). Plaintiff Carole Kuligoski, individually and on

behalf of Michael, Mark Kuligoski, and James Kuligoski (collectively “plaintiffs”), filed suit in

Windham Superior Court against defendants Brattleboro 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 and train claims, and affirm on the failure to treat, improper release and negligent

undertaking claims.

       ¶ 2.    Plaintiffs’ complaint alleges the following facts,1 as relevant to this appeal. On

October 9, 2010, E.R. was voluntarily admitted to the Psychiatric Department at Central

Vermont Medical Center (CVMC) with a “psychotic disorder” after having threatened young

children in his home. During his first few days at CVMC, E.R. was easily agitated, made

threatening remarks, reported auditory hallucinations, was easily agitated, and had fair-to-poor

judgment.     The examining physician tentatively diagnosed E.R. with a schizophreniform

disorder.

       ¶ 3.    On October 15, 2010, the medical professionals at CVMC completed the

necessary documents to have E.R. involuntarily committed. The documents stated that he was

mentally ill, posed a danger to himself and others, and was in need of involuntary hospitalization.

The following day, E.R. was placed in restraints and transferred from CVMC to the Vermont

State Hospital where a physician examined him and determined that he was a danger to others


       1
          Plaintiffs also brought an action against E.R., E.R.’s parents and E.R.’s grandparents
seeking the same damages they seek in this action. See Kuligoski v. Rapoza, No. 42-2-113
Cacv, (Vt. Sup. Ct. May 13, 2015). The superior court in that case granted summary judgment
for defendants and dismissed the action on May 13, 2015. The parties have stipulated that we
can use the decision in that case in deciding this appeal. We take that stipulation to mean that we
can consider the undisputed facts as considered in that decision in addition to the factual
allegations made in the complaint in this case. The statement of facts in the body of this opinion
is based on both sources.
                                                  2
and, if released, would pose a danger to his family. There is no indication that either the

documents prepared at CVMC or the determination of the physician at the Vermont State

Hospital were ever used to start a formal involuntary commitment proceeding. Nor is there an

explanation of the basis on which E.R. continued to be held at the Vermont State Hospital. We

can conclude only that E.R. must have been held as a voluntary patient.2

       ¶ 4.    While at the Vermont State Hospital, E.R. was administered anti-psychotic and

anxiety medication. He repeatedly asked to leave the hospital, once tried to escape, threatened to

punch out a window, and, although he denied having auditory hallucinations, was observed

reacting to unseen stimuli. After E.R. reported feeling unsafe at the hospital, a social worker

made a referral for his transfer to the Retreat, a nonprofit psychiatric hospital in Windham

County, Vermont.       Upon his discharge from the state hospital, he was diagnosed with

schizophreniform disorder.

       ¶ 5.    On October 22, 2010, E.R. was examined by a physician at the Retreat who

confirmed the state hospital’s diagnosis. The physician reported that E.R. “had verbalized

homicidal ideation toward staff.” E.R. was thereafter placed on a staff-intensive treatment plan

but continued to exhibit “grossly psychotic” behavior, lack of insight, and severely impaired

judgment. His physician noted that he “required an in-patient level of care to prevent further




       2
            Without filing an application in the superior court for involuntary treatment or
accepting E.R. as a voluntary patient, the Vermont State Hospital could only hold E.R. for
seventy-two hours after the physician’s certification. See 18 V.S.A. § 7508(d). Since no court
order was sought, we conclude that E.R. must have been considered a voluntary patient.
Although the record does not show conclusively whether E.R. was an adult, the facts indicate
that his symptoms first arose in 2009 at the beginning of his sophomore year in college and his
hospital treatment occurred over a year later. It is very likely he was an adult, but was still living
with his parents. In the text, we have considered him to be an adult.

        We recognize that his status as a voluntary patient seems inconsistent with some of the
later facts, including his attempt to escape from the Vermont State Hospital. Inconsistencies of
this type are not unusual in a complaint.
                                                 3
decompensation.”3 Further reports indicate auditory and visual hallucinations, menacing

behavior, and homicidal and suicidal ideation.

       ¶ 6.    On November 1, 2010, E.R.’s physician noted that “E.R. continued to be floridly

psychotic, probably paranoid, guarded and gradually improving but that he remained sufficiently

ill that he totally lacked insight into his illness and that E.R. would be non-compliant with

treatment outside of the hospital.” He further noted that E.R. would remain on the treatment plan

and be allowed out only for brief intervals.

       ¶ 7.    During his time at the Retreat, E.R.’s behavior did not improve. In his November

10, 2010 assessment, E.R.’s physician stated that, if discharged, E.R. would be a high risk for

decompensation, might stop his medication, and might not participate in aftercare treatment.

Nevertheless, he stated that E.R. would be discharged on November 12.

       ¶ 8.    On November 12, 2010, E.R.’s physician noted that he stopped taking his

medication and had been hearing voices commanding him to kill himself. E.R. said of the

commands, “I feel like I should do it.” His physician wrote in his assessment, “Obviously

[E.R.’s] refusal of medications is very worrisome and exactly what this writer was concerned

about. Not only abstractly is it a bad idea, but he actually seems to have experienced an increase

in his voices with only missing one night’s medications.” E.R. was, however, discharged that

same day.

       ¶ 9.    Throughout the period of his treatment at both the Vermont State Hospital and the

Retreat, E.R. was closely monitored by his parents, with whom he had been living. Exactly what

the parents were told at the time of discharge is disputed, although it appears they were told that

E.R. “might have schizophrenia.” They understood that E.R. was “going through a phase and

would recover.”


       3
             In psychiatry, decompensation constitutes the “failure to generate effective
psychological coping mechanisms in response to stress, resulting in personality disturbance or
disintegration, especially that which causes relapse in schizophrenia.” Oxford English
Dictionary (Oxford University Press, 2015), https://perma.cc/B6FR-VVF8.
                                                4
       ¶ 10.   In the discharge summary, E.R.’s physician again stated that E.R. was a high risk

for poor compliance with post-discharge treatment; E.R. had been diagnosed as having a

“psychotic disorder, not otherwise specified”; and that E.R.’s parents believed his mental health

was related to his breakup with a girlfriend in 2009 or possibly a sequela resulting from

mononucleosis. He stated that E.R. met the criteria for schizophrenia or, at the very least,

schizophreniform disorder.

       ¶ 11.   Prior to E.R.’s discharge, the Retreat developed an aftercare treatment plan with

E.R.’s parents that involved regular visits to NKHS. E.R. was also prescribed daily medication,

which his mother was told to administer to him. E.R.’s mother believed that E.R.’s condition

had considerably improved at the time of his release.

       ¶ 12.   On December 1, 2010, E.R. met with a treatment team at NKHS and signed a

cognitive remediation therapy plan. A week later, a member of the treatment team completed a

Substance Abuse Addendum, in which he stated “that E.R. was a high risk for Dimension 3 of

the Client Placement Criteria (emotional, behavioral or cognitive conditions/complications)

because E.R. had recently been diagnosed with a psychotic disorder and had minimal insight

surrounding the diagnosis.”

       ¶ 13.   In mid-December, E.R. told his mother that he had stopped taking his medication.

She called NKHS and spoke with one of the physicians on E.R.’s treatment team. The physician

told E.R.’s mother that this was a cause for concern but that E.R. had to decide to take care of

himself. E.R. did not meet with anyone at NKHS between mid-December 2010 and March

2011, and no one at NKHS reached out to E.R. during that time or took any action with respect

to E.R.’s medication regime.

       ¶ 14.   On February 26, 2011, E.R. accompanied his father to an apartment building in

St. Johnsbury owned by E.R.’s grandparents.        Plaintiff Michael Kuligoski was also at the

apartment building, working on the furnace.      E.R. went down to the basement where Mr.

Kuligoski was working and assaulted him, causing serious injuries. The forensic psychiatrist
                                            5
who evaluated E.R. at the request of the criminal court stated that the night before the offense,

E.R. had not slept well, awoke early that morning, was just “sitting and staring,” and was

paranoid that people were staring at him en route to the apartment. The psychiatrist believed that

E.R. likely was in a “psychotic haze” at the time of the offense, having been “overcome by the

symptoms of his condition to the degree where he acted while in a psychotic storm.”

       ¶ 15.   Plaintiffs filed a complaint in superior court, alleging seven counts: (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.

Although the complaint itemized separate counts, plaintiffs emphasized in the superior court, as

well as in this Court, that the counts were based on a common “duty of reasonable care to act to

avoid needless risk to the safety of third parties” based on the “special relationship” that existed

between the Retreat and NKHS and their patient, E.R.

       ¶ 16.   Defendants moved to dismiss the respective claims against them, pursuant to

Vermont Rule of Civil Procedure 12(b)(6). They both argued that they owed no duty to protect

plaintiffs from attack by E.R. and that their alleged negligence was not the proximate cause of

plaintiffs’ injuries. The superior court granted both motions. Relying largely on our decision in

Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422 (1985), the

superior court concluded that defendants owed no duty to plaintiffs because Michael Kuligoski

was not an identifiable victim and defendants were under no duty to control E.R. With respect to
                                               6
the third-party duty, the court explained that plaintiffs’ claims “would push the ruling by the

Peck majority far beyond the bounds of the holding as limited by the facts there, and the

recognition of those claims would stake out expansive new territory not warranted by proper

respect for the separation of powers.” As to the duty of defendants to control E.R., the court

emphasized Vermont’s “policy of keeping mentally-ill persons in the least restrictive

environment possible.” This appeal followed.

       ¶ 17.   On appeal, plaintiffs generally argue that the superior court erred in holding that

Peck barred its claims. They contend that, while Peck involved an identifiable victim, its holding

should not be read as limiting its reach only to identifiable victims. They argue that this reading

is supported by public policy protecting the public from dangerous individuals and is consistent

with modern tort scholarship, such as the Restatement (Third) of Torts: Liability for Physical and

Emotional Harm § 41 (2012). Plaintiffs argue that the trial court erred in concluding at this stage

of the case that there was no proximate cause. As we explain in our discussion below, we hold

that Peck and other precedents bar plaintiffs’ duty-to-treat and negligent-undertaking claims.

However, we also hold that Peck extends to identifiable and foreseeable victims, and that

plaintiffs’ duty-to-warn claims should not be dismissed at this stage in the litigation.

       ¶ 18.   We review the superior court’s decision “on a motion to dismiss de novo under

the same standard as the trial court and will uphold a motion to dismiss for failure to state a

claim only if it is beyond doubt that there exist no facts or circumstances that would entitle the

plaintiff to relief.” Birchwood Land Co. v. Krizan, 2015 VT 37, ¶ 6, ___ Vt. ___, 115 A.3d 1009

(quotation omitted). “We assume as true all facts as pleaded in the complaint, accept as true all

reasonable inference[s] derived therefrom, and assume as false all contravening assertions in the

defendant’s pleadings.” Id. We are “limited to determining whether the bare allegations of the

complaint are sufficient to state a claim.” Id. (quotation omitted).

                                        I. The Duty of Care


                                                  7
       ¶ 19.   “The existence of a duty is a question of law to be decided by the Court.” Sorge

v. State, 171 Vt. 171, 174, 762 A.2d 816, 819 (2000). Once a legal duty is established, as well as

breach of that duty, there must be factual causation for the defendant to be subject to liability for

the harm caused to the plaintiff.       See id. (requiring duty before determining causation).

“Ordinarily, proximate cause is a jury issue unless the proof is so clear that reasonable minds

cannot draw different conclusions or where all reasonable minds would construe the facts and

circumstances one way.” Estate of Sumner v. Dep’t of Social & Rehab. Servs., 162 Vt. 628,

629, 649 A.2d 1034, 1036 (1994) (mem.) (quotation omitted). On this motion to dismiss, some

factual development is necessary to reach the causation issue and determine whether, in light of

any possible duty and breach of that duty, there could be proximate cause sufficient for liability.

       ¶ 20.   Before addressing the specific issues, we start with a discussion of the duty to

third parties generally, as well as the specific duty of mental health professionals to their patients

and non-patient third parties. In doing so, we note that the main issues in this case do not arise

from a dispute as to whether defendants had a general duty of care, or even whether that duty

extends to non-patients in appropriate circumstances, but rather to the specific elements of that

duty. Thus, we are starting at the most general level where there is only limited disagreement

between the parties, and moving to more specific levels where the sharp disagreement emerges.

As we have repeatedly stated, background principles of negligence provide that “duty is not

sacrosanct in itself, but only ‘an expression of the sum total of those considerations of policy

which lead the law to say that the plaintiff is entitled to protection.’ ” Sorge, 171 Vt. at 177, 762

A.2d at 820 (quoting W. Prosser & W. Keeton, The Law of Torts § 53, at 358 (5th ed. 1984)).

The existence of a duty is “a question of fairness” and “involves a weighing of the relationship of

the parties, the nature of the risk, and the public interest in the proposed solution.” Id. (quotation

omitted).

       ¶ 21.   The modern law on duty comes from the Restatement (Third) of Torts: Liability

for Physical and Emotional Harm § 41 (2012), which provides:
                                              8
                (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 of Torts (Second), 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.

       ¶ 22.   Comment g to § 41 of the Third Restatement addresses the duty of mental health

professionals to third parties. The duty begins with the physician using “customary care” to

determine whether a patient poses a risk of harm to others. “Once such a patient is identified, the

duty imposed by reasonable care depends on the circumstances” and “may require providing

appropriate treatment, warning others of the risks posed by the patient, seeking the patient’s

agreement to a voluntary commitment, making efforts to commit the patient involuntarily, or

taking other steps to ameliorate the risk posed by the patient.” Id. Although courts have been

hesitant to embrace duties any broader than those to “reasonably identified” victims, § 41 sets no

express limit on individuals to whom the duty is owed. Because “[r]easonable care itself does

not require warning individuals who cannot be identified,” the proper inquiry is “a question of

reasonable care, not a question of the existence of a duty.” Id. “However, when reasonable care

requires confining a patient who poses a real risk of harm to the community, the duty of the

mental-health professional ordinarily extends to those members of the community who are put at

risk by the patient.” Id. Because patients who are not in custody cannot be controlled in the

traditional understanding of the term, the duty imposed on mental-health professionals “is only

one of reasonable care.” Id. Despite this duty, a “health-care professional can pursue, and may




                                                 9
have a statutory obligation to seek, involuntary commitment of patients who are dangerous to

themselves or others.” Id.

       ¶ 23.     We have not had the occasion to address § 41(b)(4), and no other court has

explicitly adopted it. Nonetheless, we note that the principles enunciated in § 41 build upon

those of § 315 et seq. of the Second Restatement, and are an evolution of the duties articulated in

decades of case law.

       ¶ 24.     The history of this duty of care of mental health professionals or institutions with

respect to non-patient third parties begins with the California Supreme Court’s decision in

Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976). This landmark case

established that mental health professionals have a duty to warn “would-be” victims of a

patient’s dangerous conduct. Id. at 346. In Tarasoff, a patient at the University of California’s

Cowell Memorial Hospital informed his therapist that he was planning to kill an unnamed girl—

readily identifiable to the therapist as the victim Tatiana Tarasoff—after she returned from her

summer in Brazil. Id. at 341. Although the mental health staff sought the authority to petition

for the patient’s commitment, the University police took the patient into custody briefly and

released him after he promised to stay away from the victim. Id. Shortly after Tarasoff’s return,

the patient went to her residence and killed her. Id.

       ¶ 25.     Tarasoff’s parents filed a negligence suit against the University, the

psychotherapists employed by the university hospital, and the campus police claiming that the

defendants owed a duty to protect their daughter from the patient and breached that duty by

failing to warn the plaintiffs of the patient’s threats and failing to confine the patient under a

California statute that governs the involuntary commitment of individuals with mental health

disorders.     The California Supreme Court concluded that the defendants were shielded by

governmental immunity from liability under the statute for failing to confine the patient, and

addressed only the merits of the duty-to-warn claim. Id. at 341-42.


                                                  10
       ¶ 26.   In conducting its analysis into the defendants’ duty to warn, the California court

balanced a number of considerations, including

               the foreseeability of harm to the plaintiff, the degree of certainty
               that the plaintiff suffered injury, the closeness of the connection
               between the defendant’s conduct and the injury suffered, the moral
               blame attached to the defendant’s conduct, the policy of preventing
               future harm, the extent of the burden to the defendant and
               consequences to the community of imposing a duty to exercise
               care with resulting liability for breach, and the availability, cost
               and prevalence of insurance for the risk involved.

Id. at 342 (quotation omitted). Although foreseeability is a significant factor, the court noted

that, in avoiding foreseeable harm, a defendant will not be required to control the conduct of

another person or warn of such conduct unless “the defendant bears some special relationship to

the dangerous person or to the potential victim.” Id. at 343. The court then concluded that a

special relationship existed between a therapist and patient, and that “[s]uch a relationship may

support affirmative duties for the benefit of third persons.” Id. The court found that the interest

in protecting a potential victim who has been threatened by a patient outweighs the

countervailing policy considerations, such as doctor-patient confidentiality, the difficulty of

predicting a patient’s future violent acts, and the risk of unnecessary warnings. Id. at 345-46.

       ¶ 27.   Importantly, while the court observed that its prior decisions recognizing such a

duty involved situations where the defendant maintained a special relationship with both the

victim and the person whose conduct created the danger, see, e.g., Johnson v. State, 447 P.2d

352, 355 (Cal. 1968) (upholding suit against state for failure to warn foster parents of dangerous

tendencies of child), it concluded the duty should not “logically be constricted to such

situations,” id. at 344. As guidance, the court cited cases from other jurisdictions recognizing

such a duty in the context of doctors failing to warn their patients not to drive when taking

certain medications for the safety of the general public, or failing to warn the family members of

patients with contagious diseases. Id. at 344.

       ¶ 28.   As the California Supreme Court summarized,

                                                 11
                 [The] defendant therapists cannot escape liability merely because
               [the victim] herself was not their patient. When a therapist
               determines, or pursuant to the standards of his profession should
               determine, that his patient presents a serious danger of violence to
               another, he incurs an obligation to use reasonable care to protect
               the intended victim against such danger. The discharge of this
               duty may require the therapist to take one or more of various steps,
               depending upon the nature of the case. Thus it may call for him to
               warn the intended victim or others likely to apprise the victim of
               the danger, to notify the police, or to take whatever other steps are
               reasonably necessary under the circumstances.

Id. at 340. In summary, Tarasoff held that a therapist has a duty to warn either “the endangered

party or those who can reasonably be expected to notify him.” Id. at 347.

       ¶ 29.   On the heels of Tarasoff came the California Supreme Court’s decision in

Thompson v. County of Alameda, 614 P.2d 728 (Cal. 1980), which further articulated the duty to

warn when a potentially dangerous individual makes a generalized threat to the general public or

a segment of the population—i.e., an unidentifiable victim. In Thompson, a juvenile offender

had been in the custody of a county institution under a court order. Id. at 730. After he was

released on temporary leave into his mother’s custody, he murdered a neighboring child in the

garage of his mother’s home. Id. The complaint alleged that the county knew of the juvenile’s

“latent, extremely dangerous and violent propensities regarding young children and that sexual

assaults upon young children and violence connected therewith were a likely result of releasing

(him) into the community.” Id. The complaint also alleged that the county knew the juvenile

offender “had indicated that he would, if released, take the life of a young child residing in the

neighborhood,” although he gave no indication of any specific child he intended to harm. Id.

       ¶ 30.   The plaintiffs, the parents of the victim, claimed that the county was negligent in

releasing the juvenile into the community and failing to warn the juvenile’s mother, the local

police, or “parents of young children within the immediate vicinity” of his mother’s residence.

Id. In deciding the extent of the duty, the court turned to Tarasoff, emphasizing that the holding

extended to “specifically foreseeable and identifiable victim[s] of the patient’s threats.” Id. at

734. The court also reiterated Tarasoff’s words of caution—that “ ‘the open and confidential
                                             12
character of psychotherapeutic dialogue encourages patients to express threats of violence, few

of which are ever executed’ ” and that “ ‘a therapist should not be encouraged routinely to reveal

such threats’ ” because “ ‘such disclosures could seriously disrupt the patient’s relationship with

his therapist and with the persons threatened.’ ” Id. (quoting Tarasoff, 551 P.2d at 347). The

court also cautioned that a therapist should not disclose confidential information unless necessary

to avert danger and that “ ‘even then that he do so discreetly, and in a fashion that would

preserve the privacy of his patient to the fullest extent’ ” possible. Id. (quoting Tarasoff, 551

P.2d at 347). The Thompson court interpreted Tarasoff to require as a precondition of liability

that the victim be “readily identifiable,” if not “specifically named.” Id. The court thus rejected

the plaintiffs’ attempt to impose “blanket liability” on the county for failing to warn the parents

of the victim or other neighborhood children, the police, or the juvenile’s mother. Id. The court

based its decision on policy considerations, as well as “foreseeability” within the context of the

case. Notably, the court considered the “practical obstacles” to imposing a broad duty:

                In our view, the generalized warnings sought to be required here
                would do little to increase the precautions of any particular
                members of the public who already may have become conditioned
                to locking their doors, avoiding dark and deserted streets,
                instructing their children to beware of strangers and taking other
                precautions. By their very numbers the force of the multiple
                warnings required to accompany the release of all probationers
                with a potential for violence would be diluted as to each member
                of the public who by such release thereby becomes a potential
                victim. Such a warning may also negate the rehabilitative
                purposes of the parole and probation system by stigmatizing the
                released offender in the public’s eye.

Id. at 736.

        ¶ 31.   Thus, the court found that warnings to both the police and the parents of

neighborhood children would be of little beneficial effect. Id. As specifically relevant to this

case, the California high court considered the effect of warnings to the juvenile offender’s

mother, into whose custody he was released. Id. at 737. The court concluded that such a

warning would not have the desired effect of warning the potential victims because the mother

                                                13
would not be likely to volunteer information to neighborhood parents that her son posed a threat

to their welfare, “thereby perhaps thwarting any rehabilitative effort, and also effectively

stigmatizing both the mother and son in the community.” Id. The court did not find persuasive

the dissent’s reasoning “that the mother ‘might’ have taken special care to control her son had

she been warned of [his] threats,” concluding that such “attenuated conjecture” cannot alone

support the imposition of liability. Id. The court distinguished Johnson, 447 P.2d at 355, which

held that the state had a duty to warn the foster family of a child’s dangerous tendencies, because

it was the family in Johnson that was endangered, whereas the mother in Thompson was not

herself endangered and would be expected to supervise her son “for the remote benefit of a third

party.” Thompson, 614 P.2d at 737.

       ¶ 32.   In Vermont, our most significant decision on the duty of mental health

professionals to third parties is Peck, 146 Vt. 61, 499 A.2d 422, a duty to warn case.4 Like

Tarasoff, Peck deals with the failure to warn an identified victim and expressed a broad general

duty of the mental health professional or institution to third parties affected by the conduct of the

patient. Unlike Tarasoff, the patient threatened the property, rather than the person, of the

plaintiff. Id. at 64, 499 A.2d at 424. In Peck, the plaintiffs sued a mental health agency for

damages to their property after their son set fire to their barn. Id. At the time of the incident, the

son was an outpatient of Counseling Service of Addison County and was living at home with his

parents. Id. at 63, 499 A.2d at 424. After a fight with his father, the son left home and went to


       4
          Peck is a 3 to 2 decision with no majority opinion. Justice Underwood concurred in the
result but did not join the opinion of Justice Hill, which explained the rationale for reaching that
result. Justice Underwood did not author a concurring opinion explaining why he disagreed with
the rationale of Justice Hill’s opinion. The dissent authored by Chief Justice Billings, and joined
by Justice Peck, argued that the mental health professional had no duty to third parties and the
recognition of any such duty should be undertaken by the Legislature and not by this Court.

       The plurality opinion of Justice Hill has been cited and quoted in part in later opinions of
this Court without an explanation that it is not a majority opinion. See, e.g., Lenoci v. Leonard,
2011 VT 47, ¶ 15, 189 Vt. 641, 27 A.3d 694 (mem.); Smith v. Day, 148 Vt. 595, 597, 598, 538
A.2d 157, 158, 159 (1999). We have similarly done so here. To the extent that is necessary for
the opinion reached herein, we adopt the opinion of Justice Hill.
                                                 14
the Counseling Service to speak with his therapist. Id. He told his therapist about the fight and

that “he didn’t think his father cared about him or respected him.” Id. At a following session,

the son stated that he was still angry with his father, and told his therapist that he “wanted to get

back at his father” by “burn[ing] down his barn.” Id. at 64, 499 A.2d at 424. After discussing

the consequences of the act, the son promised his therapist that he would not burn down the barn.

The therapist did not disclose these threats to the parents or any other staff members of

Counseling Service.      Several days later, the son set fire to his parents’ barn, which was

completely destroyed. Id. at 63, 499 A.2d at 424. The parents claimed that the therapist had a

duty to protect them from their son’s violent behavior, that the therapist knew or should have

known that their son presented an unreasonable risk of harm to them, and that the therapist

breached that duty by failing “to take steps that were reasonably necessary to protect” them. Id.

at 64.

         ¶ 33.   The Peck Court began its analysis with the Restatement (Second) of Torts § 315

(1965), which provides that a duty arises if: “(a) a special relation exists between the actor and

the third person which imposes a duty upon the actor to control the third person’s conduct, or (b)

a special relation exists between the actor and the other which gives to the other a right to

protection.” The Court concluded that “the relationship between a clinical therapist and his or

her patient ‘is sufficient to create a duty to exercise reasonable care to protect a potential victim

of another’s conduct,’ ” id. at 65, 499 A.2d at 425 (quoting Tarasoff, 551 P.2d at 343), even

though the level of control over an outpatient may be less than that exercised over

institutionalized patients. Id. The Court noted that “Vermont already recognizes the existence of

a special relationship between a physician and a patient that imposes legal duties on the

physician for the benefit of third persons,” citing statutes requiring doctors to warn others of

contagious diseases to protect the public health. Id. For example, 18 V.S.A. § 1004, which has

not been amended since the time of the Peck decision, provides that: “A physician who knows or

suspects that a person whom he or she has been called to attend is sick or has died of a
                                          15
communicable disease dangerous to the public health shall immediately quarantine and report to

the health officer the place where such case exists . . . .” Accordingly, the Court saw no reason

why the same duty should not exist in a mental health setting. Id.

       ¶ 34.   In imposing a duty on the therapist, the Court rejected the defendant’s arguments

that a mental health professional cannot predict future violent behavior and that physician-patient

privilege protects against disclosure of confidential information. Id. at 66, 499 A.2d at 425; see

also 12 V.S.A. § 1612(a). After quoting at length from Tarasoff, the Court noted that the trial

court found sufficient facts to demonstrate that the therapist knew or should have known the

defendant posed a threat to his parents and that the failure of the therapist to reveal that threat

“was inconsistent with the standards of the mental health profession.” Id. at 66, 499 A.2d at 425-

26. Ultimately, we 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.

                                       II. The Duty to Warn

       ¶ 35.   Having set out the nature of duties for tort actions and the important sources of

law for defining the duties of mental health professionals to third parties injured by their patients,

we look at the specific duties alleged in plaintiffs’ complaint in this case. As we stated above,

the positions of the parties begin to differ when we look at the specific duties alleged. The

decisions from around the country reflect these differences. Although the central holding of

Tarasoff has been widely accepted around the country, the same is not true for extensions of the

duty beyond providing warnings. Further, courts in other jurisdictions are divided on how far to

extend the Tarasoff duty to warn, and the subsequent limitation on that duty expressed in

Thompson.

       ¶ 36.   We first consider plaintiffs’ allegation that defendant, Brattleboro Retreat,

breached its duty to warn E.R.’s parents of the risk of his dangerous behavior and to train them in
                                                 16
how to handle him. In examining the duty of defendant, we put these claims together under the

general description of duty to warn and consider later whether separate duties are involved.

Courts differ when evaluating a claim of a duty to warn someone other than an identified victim.

As discussed previously, several courts have limited the duty to identifiable victims, or a class of

individuals whose injury is foreseeable because of their relationship or proximity to a

specifically identifiable victim. See, e.g., Dawe v. Dr. Reuven Bar-Levav & Assocs., P.C., 780

N.W.2d 272, 278 (Mich. 2010) (establishing duty to warn for mental health professionals when

patient makes threat of violence against “reasonably identifiable third person” and has apparent

intent and ability to carry out threat); Emerich v. Philadelphia Ctr. for Human Dev., Inc., 720

A.2d 1032, 1040-41 (Pa. 1998) (stating that psychotherapist has duty to warn only when specific

and immediate threat of serious bodily injury has been made against “specifically identified or

readily identifiable victim”). The reasoning is much the same in these decisions, as they reflect

the policies set forth by the California Supreme Court in Thompson. See, e.g., Fraser v. U.S.,

674 A.2d 811, 816 (Conn. 1996) (stating that “the interests of the mental health profession in

honoring the confidentiality of the patient-therapist relationship and in respecting the

humanitarian and due process concerns that limit the involuntary hospitalization of the mentally

ill” counsel against imposing “liability for harm to unidentifiable victims or unidentifiable

classes of victims” (citations omitted)).    Many of these courts also rely on their existing

precedent in the area of negligence, citing the limitations on third-party liability already

recognized in their common law. Id. at 815-16 (observing that scope of liability in negligence to

injured third parties has not been enlarged by changes in tort law).

       ¶ 37.   However, several other courts have held that a duty to warn is owed not only to

specifically identified or identifiable victims, but to foreseeable victims or to those whose

membership in a particular class—for example, those living with the patient—places them within

a zone of danger. See, e.g., Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185, 194-95 (D. Neb.

1980) (applying Nebraska law) (holding that if psychiatrist can reasonably foresee risk of harm
                                              17
to plaintiffs or “class of persons” of which plaintiffs were members, he or she has duty to warn,

even if victims are not specifically identified); Naidu v. Laird, 539 A.2d 1064, 1073 (Del. 1988)

(stating psychiatrist has duty to warn “potential victims or a class of potential victims” when “in

accordance with the standards of the profession,” psychiatrist knows or should know that

patient’s “dangerous propensities present an unreasonable risk of harm to others”); Schuster v.

Altenberg, 424 N.W.2d 159, 165 (Wis. 1988) (noting that psychotherapist’s duty to warn “is not

limited by requirement that threats made be directed to an identifiable target” as it must simply

be foreseeable that omission “may cause harm to someone”).

        ¶ 38.   Plaintiffs ask that we construe Peck broadly to find that E.R.’s parents should

have been warned of his propensities in order to protect third parties. Defendants, on the other

hand, focus on the language in our holding that specifies an “identifiable victim,” a factor absent

here.   They argue that Peck is specifically limited to the circumstance where there is an

identifiable victim and should be interpreted to hold that there is no duty to warn in the absence

of such a victim. We note that none of our more recent cases have expanded the duty articulated

in Peck to unforeseeable victims. Nevertheless, we agree with plaintiffs that the specific liability

holding of Peck is based on the facts and circumstances that were before the Court. Thus, while

Peck finds a duty to warn an identifiable victim, it does not hold that liability is limited to those

circumstances and in fact draws on public health cases where there is no identified victim.5 In


        5
          Peck relied in part on the decision of a New Jersey court in McIntosh v. Milano, 403
A.2d 500 (N.J. Super. Ct. Law Div. 1979). That decision drew heavily on the duty a physican
has to the public when encountering a case of a communicable disease to explain the duty of a
mental health professional with a dangerous patient. The court reasoned:

                 To summarize, this court holds that a psychiatrist or therapist may
                have a duty to take whatever steps are reasonably necessary to
                protect an intended or potential victim of his patient when he
                determines, or should determine, in the appropriate factual setting
                and in accordance with the standards of his profession established
                at trial, that the patient is or may present a probability of danger to
                that person. The relationship giving rise to that duty may be found
                either in that existing between the therapist and the patient, as was
                alluded to in Tarasoff II or in the more broadly based obligation a
                                                    18
saying this, we are also cognizant of the fact that Peck was decided thirty years ago, before

modern trends in this area, such as the Restatement (Third) of Torts § 41.

       ¶ 39.   The dissent cites a number of cases that it argues show that the majority rule is

that there is no duty to warn anyone other than an identified victim. Post, ¶ 85. In fact, most of

these cases, including Tarasoff, do not contain such a limitation. As we set out above, Tarasoff

contains this explanation of the duty: “Thus it may call for him to warn the intended victims or

others likely to apprise the victim of the danger, to notify the police, or to take whatever other

steps are reasonably necessary under the circumstances.” Tarasoff, 551 P.2d at 342.

       ¶ 40.   Other cases, including Fraser, 674 A.2d at 817—a duty to treat and not a duty to

warn case—acknowledge that the duty can extend to persons in the zone of danger, one of the

bases for this decision. The court in Estates of Morgan v. Fairfield Family Counseling Center,

1997-Ohio-194, 673 N.E.2d 1311, 1328, explicitly reserves the issue: “We need not determine at

this time whether and to what extent the readily identifiable victim rule should attach in a failure-

to-warn case. The case sub judice does not involve any allegation that [the defendants were]

negligent in failing to warn [the plaintiff’s] family.” In Emerich, 720 A.2d at 1040 n.8, the court

stated: “we are not required to address the related issue of whether this duty to warn may be

discharged by notifying relatives of the victim, other individuals close to the victim, or the

police.” In fact, the only case cited by the dissent that recognizes the Tarasoff duty but limits the

required warning to an identified victim is Eckhardt v. Kirts, 534 N.E.2d 1339 (Ill. Ct. App.

1989), a twenty-seven year old intermediate appellate court decision. The dissent asserts here

               practitioner may have to protect the welfare of the community,
               which is analogous to the obligation a physician has to warn third
               persons of infectious or contagious disease.

Id. at 511-12 (footnote omitted).

        The communicable disease cases continue to be strong indicators of an extended duty.
For example, in C.W. v. Cooper Health System, 906 A.2d 440, 450 (N.J. Super. Ct. App. Div.
2006), the court that decided McIntosh held that a physician owed a duty to a patient and to
others, specifically the patient’s partner and child, to disclose the patient’s HIV-positive status.

                                                 19
that a holding that the duty to warn extends beyond the identified victim represents an

unacknowledged minority position. We reject that assertion because it is not true.

       ¶ 41.   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. It alleges that the warnings would have informed them such that they could have

properly supervised E.R. Any warning to E.R.’s parents would not have been predicated on their

membership in the public at large, however, and would have been predicated on their assumption

of custody and caretaking responsibilities of E.R., even though an adult, from the Retreat. For

two reasons, we conclude that the Retreat had a duty to give such warnings.

       ¶ 42.   The first reason involves the unique circumstances of this case. The complaint

alleges that the parents had assumed the role of E.R.’s caretakers even though he was an adult.

The extended record shows that the parents were directly involved in E.R.’s care and treatment

from the first time that he showed symptoms of mental illness and were involved in controlling

his conduct. This meant that they had assumed responsibilities, the discharge of which could be

affected by the information they received. For example, the limited facts indicate that in a

discharge conference, Retreat staff told E.R.’s mother that she should give E.R. his medication,

but also indicate that E.R. stopped taking medication on his own after discharge. A complete

warning of the effect of E.R. discontinuing the medication may have affected the parents’ degree

of involvement in ensuring E.R. took his medication.

       ¶ 43.   Because the parents were monitoring E.R.’s needs and treatment, and were

involved in his discharge, they were available to receive information on his continuing need for

treatment and the actions that should have been taken based on his behavior. In fact, the

complaint alleges that the Retreat’s mental health professional, who was aware of the risk that

E.R. would suffer decompensation and stop his medications if discharged, had “discussed

discharge with E.R.’s mother” before determining such a course was possible. Moreover, before

the discharge, the Retreat made an aftercare treatment plan “with E.R. and his parents”. The
                                              20
complaint thus supports an inference that if E.R. had not had parents into whose care he could be

released, parents who could monitor his symptoms and medication intake, Brattleboro Retreat

would not have authorized his release.

       ¶ 44.   Again, we emphasize that we are dealing with a case that was dismissed on the

pleadings with no factual development.6 We conclude that by transferring custody of a patient

with a psychotic disorder to caretakers whom they knew lacked psychiatric training and

experience, the Retreat owed a duty of care to provide sufficient information to the parents so

they could fully assume their caretaker responsibilities to assist E.R. and protect against any

harmful conduct in which he might engage. In adopting this duty definition, we are relying upon

Peck, as well as precedents from other jurisdictions and the Restatement (Second) of Torts,

§§ 315 and 319. Although we have discussed it above for background, we have not adopted and

relied upon § 41(b)(4) of the Restatement (Third) of Torts. We recognize that there are contrary

decisions from some of our sister states, but generally we find them distinguishable. For

example, in Matter of Votteler’s Estate, 327 N.W.2d 759, 760 (Iowa 1982), the plaintiff was

injured when a patient suffering from a serious mental illness ran over her with a car. The

plaintiff alleged that the patient’s psychiatrist was negligent in failing to warn the patient’s

husband, a friend of the plaintiff, of the danger the patient presented to the public “so he could

have protected [the] plaintiff.” Id. In its ruling, the Iowa Supreme Court held that the Tarasoff

rule could not be “stretched” to support finding a cause of action against a psychiatrist in these

circumstances, as such a theory would “attenuate[] the Tarasoff rule beyond the breaking point.”

Id. at 761. However, the decision was based on the particular facts of the case. Unlike in


       6
          The dissent goes through some of the known facts apparently to assert that the Retreat
took many steps to inform the parents of the risk and how to deal with it, but those steps were not
successful in controlling the risk of E.R.’s violent actions, and demanding any more involves the
imposition of unreasonable policy judgments. Post, ¶¶ 97-100. At this point, the dissent’s
concerns are premature and speculative because no facts are established for purposes of the
motion to dismiss. It may be that the facts will show that the Retreat completely explained the
risks and how parents should respond to them. It may be otherwise as plaintiffs allege. Neither
assessment is possible on the very limited record before us.
                                                  21
Tarasoff, the record “lack[ed] any basis for finding the therapist knew of the danger” the patient

presented, id. at 762, but instead, contained overwhelming evidence to suggest the plaintiff was

herself well aware of the patient’s violent propensities; indeed, the patient had told the plaintiff

on multiple occasions that “she would kill her.” Id. at 761.

        ¶ 45.   By contrast, the complaint here is replete with allegations that staff members at

Retreat were well aware of E.R.’s capacity for violence. Upon his admission at the Retreat,

E.R.’s records from the Vermont State Hospital were reviewed, including the findings by his

intake physician that E.R. was “clearly a danger to others” and would be a “danger to his own

family” if released. He verbalized “homicidal ideation” toward staff only nine days after his

admission to the Retreat, and throughout his stay, continued to have auditory hallucinations

which commanded him to kill himself or others. E.R.’s behavior was so aggressive that his

psychiatrist adopted an Alternative Low Stimulation Area (ALSA) treatment plan, which

involves “placing patients who are verbalizing or demonstrating they are unsafe in a special

area” that is staff-intensive and free from any objects that can be used to harm the self or others.

Indeed, it appears from the complaint that E.R. was kept in ALSA for all but the first nine days

of his stay at the Retreat.

        ¶ 46.   Because the case never went beyond the complaint stage, there is no allegation

that the parents were aware of E.R.’s risk of danger such that they could be charged with

“knowledge of the danger as a matter of law” sufficient to nullify any duty to warn. Id. at 762.

The expanded record shows that the state of the parents’ knowledge is strongly disputed.

        ¶ 47.   A second reason for finding a duty to warn in this case is that E.R.’s parents fell

within the “zone of danger” from E.R.’s conduct. While there is no allegation that E.R. ever

threatened his parents, plaintiffs’ complaint alleged that by failing to warn the parents, the

“Brattleboro Retreat needlessly endangered the safety of third parties, including, not limited to

the Plaintiffs.” Moreover, it is alleged that E.R. specifically threatened his caretakers, and the

parents were to become his caretakers after his discharge from the Retreat.
                                                22
        ¶ 48.   The duty to warn those in the zone of danger was addressed by the Arizona

Supreme Court in a case very similar to this one. See Hamman v. Cty. of Maricopa, 775 P.2d

1122, 1123 (Ariz. 1989). In Hamman, the patient was brought to an emergency psychiatric

center because of violent and other “abnormal behavior.” His parents expressed fear that he

“would either be killed or kill somebody” and reported that they maintained constant supervision

over him. Id. After speaking with a doctor, the doctor refused to admit the patient to the

hospital, but prescribed medication and advised his mother to take him to follow-up care at a

medical center. Id. at 1124. One morning, the patient refused to take his medicine. Later that

day, he attacked his father with an electric drill.

        ¶ 49.   The parents filed a claim against the hospital for negligence, claiming that the

doctor owed them a duty to reasonably diagnose and treat their son’s condition and that they

reasonably relied upon the doctor’s advice that their son was harmless. In assessing the scope of

the duty, the court rejected the narrow approach of requiring an identifiable victim but also

cautioned against adopting a rule that is “too inclusive, subjecting psychiatrists to an

unreasonably wide range of potential liability.” Id. at 1127. The court concluded,

                  If indeed [the doctor] negligently diagnosed [the patient] as
                harmless, the most likely affected victims would be [his parents].
                Their constant physical proximity to [the patient] placed them in an
                obvious zone of danger. [His parents] were readily identifiable
                persons who might suffer harm if the psychiatrist was negligent in
                the diagnosis or treatment of the patient. The fact that [the patient]
                never verbalized any specific threats against [his parents] does not
                change the circumstances that, even without such threats, the most
                likely victims of the patient’s violent reaction would be [his
                parents].

Id. at 1128 (emphasis added); see also Div. of Corr. v. Neakok, 721 P.2d 1121 (Ala. 1986),

overruled on other grounds by Dep’t of Corr. v. Cowles, 151 P.3d 353 (Ala. 2006) (finding that

state agencies had duty to warn residents of small community of parolee’s dangerous

propensities, particularly victims, as one was foreseeable and others were in zone of danger).

We find Hamman persuasive and follow its reasoning.

                                                  23
       ¶ 50.     In recognizing a duty to warn, we distinguish this case from Thompson, where the

mother of the juvenile offender was not foreseeably endangered, as the offender’s threats were to

children.     By contrast, E.R.’s parents were in the zone of danger, as E.R.’s dangerous

propensities were not targeted towards any one class of individuals. If E.R. had harmed his

parents, we may have easily concluded that the Retreat owed them a duty to warn of his violent

tendencies; if he directed violence towards a member of the general public, the question becomes

harder. If defendant owed a duty to the parents and breached that duty, resulting in harm to an

unidentifiable third party, is defendant liable?

       ¶ 51.     To answer this question, we look to cases involving a physician’s duty to warn a

patient, the breach of which results in injury to a third party. Most courts have recognized that

physicians owe a duty to their patients to warn them about the hazards of driving on certain

medications and that, when the physician breaches that duty, causing harm to a third party, he or

she is liable for that failure to warn. See, e.g., Taylor v. Smith, 892 So.2d 887, 893-94, 896 (Ala.

2004) (holding that duty of care owed by physician to his patient “extends to third-party

motorists who are injured in a foreseeable automobile accident with the patient that results from

the [physician’s] administration of methadone” and citing cases from Maine, Michigan, New

Mexico, Oregon, Texas, and Wisconsin that have imposed similar duty to warn); see also

Restatement (Third) of Torts § 41 cmt. h. But see Jarmie v. Troncale, 50 A.3d 802, 810 (Conn.

2012) (holding that physicians owe no duty to warn patients not to drive for benefit of third

parties because “Connecticut precedent does not support it, the plaintiff was an unidentifiable

victim, public policy considerations counsel against it, and there is no consensus among courts in

other jurisdictions, which have considered the issue only rarely”). We conclude, based on

existing precedent and modern trends in negligence law, that the Retreat had a duty to warn

E.R.’s parents as individuals in the “zone of danger” of E.R.’s dangerous propensities.7



       7
            Again, we do not adopt Restatement (Third) of Torts § 41(b)(3) to support this holding.
                                                24
        ¶ 52.   As we noted above, plaintiffs’ complaint alleges two separate duties—a duty to

warn and a duty to train. The complaint described the duty to warn as a duty to inform E.R.’s

parents that “he posed a risk to the public including themselves.” It described the duty to train as

the duty to instruct the parents “to supervise him, how to monitor and manage his medications

intake, to effectively recognize when medications were being avoided and to effectively respond

so that measures necessary and appropriate to protect potential victims could be implemented.”

We conclude that the duty to train is better recast as a duty to provide the parents with particular

information—that is, a duty to inform—to be determined in the context of the case before the

trial court. It would be premature for us to define the exact extent of the duty when the case is

still at the complaint stage.

        ¶ 53.   We have initially analyzed the duty to inform with respect to the Retreat.

Plaintiff’s complaint alleges a similar duty to warn with respect to NKHS. Although the two

entities had different responsibilities, we see no reason to differentiate between them in defining

the duty that each owed. Thus, we hold that NKHS had the same duty to warn, recast above as a

duty to provide particular information, as the Retreat did.

        ¶ 54.   As we discussed briefly above, defendants also allege that plaintiffs’ duty-to-

inform counts should be dismissed because plaintiffs cannot show the element of causation.

Duty is a legal question, and is therefore appropriate for our consideration on an appeal from a

motion to dismiss. We cannot say the same about the element of causation. Until there is factual

development on the extent to which defendants may have fallen short of their duty, if any, and

were negligent in doing so, we cannot determine whether plaintiffs can meet their burden of

showing that defendants’ negligence was a proximate cause of plaintiffs’ damages. We cannot

dismiss the complaint based on the absence of causation.

        ¶ 55.   Finally as to the duty to inform, we must address the confidentiality arguments

raised in the briefs of defendant NKHS and amici curiae Vermont Council of Developmental and

Mental Health Services, Inc., Disability Rights Vermont, and the Vermont Association of
                                            25
Hospitals and Health Systems. Defendant NKHS and amici curiae argue that expansion of the

standards under which psychotherapists must disclose protected health information without

consent beyond those imposed in Peck violates state and federal law and contrary to policy goals

of encouraging individuals to seek mental health treatment. In particular, defendant and amici

curiae note that Vermont has codified the physician-patient privilege in 12 V.S.A. § 1612(a),

which precludes the disclosure of confidential information absent patient permission or

authorization from an express provision of law. Amici curiae argue that while Peck modified

§ 1612 to require disclosure when a mental patient has threatened “serious harm to an identified

victim,” 146 Vt. at 67, 499 A.2d at 426, no express provision of Vermont or federal law permits

disclosure under the broad terms of Restatement (Third) of Torts § 41(a)—also urged by

plaintiffs—when a patient poses “risks” to the safety of the public at large.

       ¶ 56.   Amici curiae also note that other Vermont statutes, particularly 18 V.S.A.

§ 1852(7) and § 7103, protect from disclosure clinical information identifying current or former

hospital patients. See id. § 7103(a) (“All certificates, applications, records, and reports . . .

directly or indirectly identifying . . . an individual whose hospitalization or care has been sought

or provided under this part, together with clinical information relating to such persons shall be

kept confidential and shall not be disclosed by any person”); id. § 1852(a)(7) (“The patient has

the right to expect that all communications and records pertaining to his or her care shall be

treated as confidential. Only medical personnel, or individuals under the supervision of medical

personnel, directly treating the patient, or those persons monitoring the quality of that

treatment . . . shall have access to the patient’s medical records.”). Finally, amici curiae suggest

that an expansion of the duty to warn would violate the confidentiality provisions established in

the Privacy Rule adopted pursuant to the Health Insurance Portability and Accountability Act

(HIPAA), 42 U.S.C. §§ 1320d et seq., which applies to the information acquired by community




                                                 26
mental health agencies across the United States and which is exempt from any public policy

exception created by this Court.8

       ¶ 57.   We recognize that although defendants and amici have accepted Peck’s disclosure

requirements as a baseline beyond which we cannot go, that decision gave very limited

consideration to binding confidentiality requirements. The Peck Court noted that the Legislature

had created certain exceptions to the statutory patient’s privilege and that an exception similar to

that sought for mental health professionals to warn identified potential victims existed for

lawyers and, consequently, created by judicial decision an exemption for mental health

professionals. 146 Vt. at 67-68, 499 A.2d at 426. To ensure that the disclosure requirements we

have adopted fully comply with confidentiality requirements, we are reexamining the issue here

rather than relying upon Peck.

       ¶ 58.   Our conclusion is that the aforementioned statutes and regulations do not bar

plaintiffs’ failure-to-inform cause of action in this case for three reasons. First, while it is true

that 12 V.S.A. § 1612 and the more comprehensive Vermont Rule of Evidence 503 prevent

physicians from disclosing health information or history, the statute codifies an evidentiary

privilege, thus limiting its application to judicial proceedings. As such, it does not require the

Retreat to refuse to warn E.R.’s parents of E.R.’s likelihood of violent actions.9            See 1



       8
          In its brief to this Court, amicus curiae The Vermont Association of Hospitals and
Health Systems also notes that under section five of the American Medical Association’s (AMA)
Code of Medical Ethics, disclosure of confidential information is permitted only when a patient
“threatens to inflict serious physical harm to another person or to him or herself and there is a
reasonable probability that the patient may carry out the threat.” Code of Ethics of the American
Medical Association, Opinion 5.05 (2014-2015), https://perma.cc/5QPE-HYU3. We are mindful
however, of the fact that ethical standards, whether promulgated by the AMA, the Vermont
Medical Society, or Vermont Psychiatric Association, are “aspirational in nature and not
enforceable by law.” Bryson v. Tillinghast, 749 P.2d 110, 114 (Okl. 1988); accord Caldwell v.
Chauvin, 464 S.W. 3d 139, 156 (Ky. 2015).
       9
          Peck accepted, without analysis, that 12 V.S.A. § 1612(a) prohibited disclosure outside
of judicial proceedings and held that the privilege could be waived “under appropriate
circumstances” by judicial decision. Peck, 146 Vt. at 67, 499 A.2d at 426. As the text states, the
statute does not prevent a mental health professional from disclosing patient information as part
                                                27
McCormick on Evid. § 72.1 (7th ed.) (“[T]rue rules of privilege operate generally to prevent

revelation of confidential matter within the context of a judicial proceeding . . . . [They] do not

speak directly to the question of unauthorized revelations of confidential matter outside the

judicial setting, and redress . . . must be sought in the law of tort or professional responsibility.”

(footnotes omitted)).

       ¶ 59.   Second, by their own terms, each of the confidentiality statutes cited by amici

curiae exempt the situation here: 18 V.S.A. § 1852(a)(7) prohibits unauthorized access to patient

records only, rather than general information for warning purposes, while id. § 7103(b) explicitly

states that “nothing in this section shall preclude disclosure . . . of information concerning

medical condition to the individual’s family.” (emphasis added). Indeed, where the patient’s

family will serve as caretakers for the mentally ill patient, we see no policy objection to the

family members being fully knowledgeable of the patient’s condition and history.

       ¶ 60.   Finally, the federal regulations governing HIPAA’s Privacy Rule, relied upon by

amici, also carve out two exceptions relevant to the disclosure obligation imposed in this

decision. The first is a dangerous patient exception to the confidentiality requirement intended to

“avert a serious threat to health or safety”:

                (1) Permitted disclosures. A covered entity may, consistent with
               applicable law and standards of ethical conduct, use or disclose
               protected health information, if the covered entity, in good faith,
               believes the use or disclosure:

               (i)(A) is necessary to prevent or lessen a serious and imminent
               threat to the health or safety of a person or the public; and

               (B) is to a person or persons reasonably able to prevent or lessen
               the threat . . . .

45 C.F.R. § 164.512(j) (emphasis added). In this case, the disclosure requirement is imposed to

avert a serious threat to health or safety and under circumstances that meet the specific language




of a warning to the patient’s family because this is not an in-court disclosure. We do not
consider whether a waiver of the privilege, if it applied, is possible and appropriate.
                                                  28
of (i)(A) and (B). The second exception is for emergency circumstances, allowing limited use

and disclosures:

                If the individual is not present, or the opportunity to agree or object
                to the use or disclosure cannot practicably be provided because of
                the individual’s incapacity or an emergency circumstance, the
                covered entity may, in the exercise of professional judgment
                determine whether the disclosure is in the best interests of the
                individual and, if so, disclose only the protected health information
                that is directly relevant to the [family member, other relative, or
                close personal friend’s] involvement with the individual’s care or
                payment related to the individual’s health care.

Id. § 164.510(b)(3); see also Office for Civil Rights, A Health Care Provider’s Guide to the

HIPAA Privacy Rule: Communicating with a Patient’s Family, Friends, or Others Involved in

the Patient’s Care 2, https://perma.cc/9596-MXWK.

       ¶ 61.    As discussed above, plaintiffs’ complaint alleges sufficient facts to indicate that

the Retreat was well-aware of E.R.’s propensity for violence, particularly when off his

medication, and that E.R.’s parents likely underestimated the degree of danger E.R. posed to his

caretakers and to the public. Similarly, it is evident from the facts that E.R. was sufficiently

incapacitated such that disclosure could not be practicably authorized and that information about

his condition and violent behavior would have been “directly relevant” to the care his parents

provided him.      We recognize that both of these subsections permit, rather than mandate,

unauthorized disclosure in the aforementioned instances, as well as that both predicate the

admissions in the medical entity’s good faith belief and professional judgment that disclosure

was necessary. In essence, by this decision, we are imposing the mandate as a matter of tort law

in circumstances where the mental health professionals and institution are authorized to disclose

under HIPPA.

       ¶ 62.    In reaching our decision, we recognize the “interest in safeguarding the

confidential character of psychotherapeutic communications” as argued by the dissent. Post,

¶ 85. We are bound by the direction of Peck: “In the same manner that due care must be

exercised in the therapist’s determination of what steps may be necessary to protect the potential
                                                29
victim of a patient’s threat of harm, so too must due care be exercised in order to insure that only

that information which is necessary to protect the potential victim is revealed.” 146 Vt. at 68,

499 A.2d at 426-27. Based on the above analysis, 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 advise them as caretakers of E.R. on how to manage E.R.’s

conduct. 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 reverse the dismissal of Counts II, III and V of

plaintiffs’ complaint and remand for those counts to proceed.

                                       III. Duty to Protect

       ¶ 63.   We next consider plaintiffs’ other counts, starting with those against the Retreat.

The complaint contains two additional counts with respect to this defendant: (1) that defendant

negligently discharged E.R. and this discharge was the proximate cause of plaintiffs’ damages;

and (2) defendant undertook to render a service to E.R. necessary to protect third parties, failed

to exercise due care in the performance of its undertaking, and its negligence was a proximate

cause of the damages to plaintiffs. Plaintiffs allege these counts relying upon the general duty

expressed in Tarasoff and Peck and the duty described in § 41(b)(4) of the Restatement (Third)

of Torts. With respect to the second of these duties—that is, to exercise due care in the

performance of an undertaking—plaintiffs also rely on § 324A of the Restatement (Second) of

Torts.10

       ¶ 64.   Relying principally on our decision in Sorge, the Retreat argues that these duties

do not exist or do not apply here. We begin with at the sources of law as argued by the parties.

       ¶ 65.   We look first at Sorge, the most relevant of our precedents. In Sorge, one of the

plaintiffs was injured after being assaulted by a juvenile offender who was in the custody of the


       10
         This duty is also contained in the Restatement (Third) of Torts: Liability for Physical
and Emotional Harm § 43(a) (2012).
                                             30
Vermont Department of Social and Rehabilitation Services (SRS). The victim and his wife filed

suit against the State, alleging that SRS was negligent in failing to adequately supervise and

control the juvenile and that, as a result of the negligence, the victim sustained injuries. The

plaintiffs claimed that SRS was aware of the juvenile’s “history of violent, assaultive and

delinquent behavior,” but that SRS nonetheless placed him in the temporary custody of his

mother for the weekend and she “was either unlikely or incapable of adequately supervising

him.” Sorge, 171 Vt. at 173, 762 A.2d at 818.

       ¶ 66.   We began by summarizing the factors to be considered in determining whether a

governmental body has a duty of care to a specific person, beyond its duty to the public at large:

               (1) whether an ordinance or statute sets forth mandatory acts
               clearly for the protection of a particular class of persons, rather
               than the public as a whole; (2) whether the government has actual
               knowledge of a condition dangerous to those persons; (3) whether
               there has been reliance by those persons on the government’s
               representations and conduct; and (4) whether failure by the
               government to use due care would increase the risk of harm
               beyond its present potential.

Id. at 174, 762 A.2d at 819. The plaintiffs conceded that there was no specific statutory

provision mandating protection for the victim or any other particular class of persons, arguing

instead that because SRS’s failure to control the juvenile resulted in harm, liability should be

imposed on the State. The plaintiffs further contended that § 319 of the Restatement (Second)

creates an exception for “persons having dangerous propensities” that extends beyond the duty to

warn and imposes an obligation to control an offender for the protection of the public. This

section provides: “One who takes charge of a third person whom he knows or should know to be

likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care

to control the third person to prevent him from doing such harm.” Restatement (Second) of

Torts § 319. Thus, the section creates an exception for cases where a “special relationship”

exists between the State and the juvenile.



                                                31
       ¶ 67.   We rejected both arguments. We found the first theory at odds with the principle

espoused in both Peck and Restatement (Second) of Torts § 315 that “[g]enerally, there is no

duty to control the conduct of another in order to protect a third person from harm.” Sorge, 171

Vt. at 176, 762 A.2d at 819. We also found the “special relationship” theory to be inconsistent

with the goals of rehabilitation and reunification underlying both juvenile and adult detention

programs. Id. at 177-78, 762 A.2d at 820-21; see also Rivers v. State, 133 Vt. 11, 14, 328 A.2d

398, 400 (1974) (emphasizing rehabilitative goals of release of inmates on probation or parole,

and stating that liability premised on duty of State to third parties harmed during inmate’s release

on weekend pass “runs dangerously parallel to the arguments for preventative detention that

represent an overriding of constitutional limitations”); Finnegan v. State, 138 Vt. 603, 606, 420

A.2d 104, 105 (1980) (holding that escaped prisoner’s negligence cannot be transferred to State).

We further observed that the § 319 exception had been rejected by a number of other states “that

have recognized that most juvenile and adult programs dealing with persons committed to the

custody of the State are intended to rehabilitate conduct rather than control it.” Sorge, 171 Vt. at

177-78, 762 A.2d at 820-21.

       ¶ 68.   Importantly, we stated that for § 319 to apply, the State’s purpose in assuming

custody of an individual “must explicitly be to control that person” and that “attempts to exercise

that control must be consistent with the specific objective of insulating a person having

dangerous propensities from uncontrolled contact with others whom the State knows or has

reason to know are likely to be harmed by the person the State intends to isolate.” Id. at 180, 762

A.2d at 822-23. This is true for both public entities, like those at issue in Peck and Sorge, as well

as private institutions, like defendants here. See id. at 178, 762 A.2d at 821.

       ¶ 69.   Returning to plaintiffs’ theory of duty and liability in this case, we can find no

jurisdiction that has adopted Restatement (Third) of Torts § 41(b)(4). The Reporter’s Notes to

§ 41(b)(4) cite cases from seven jurisdictions that have adopted a duty commensurate with that in

§ 41(b)(4) and broad enough to support the counts included in plaintiffs’ complaint here. As
                                            32
defendant points out, many of these decisions have been superseded by statutes that narrow the

duty.11 Two cases in particular are helpful to understanding arguments for a broad expression of

duty.

        ¶ 70.   The first is Perreira v. State, 768 P.2d 1198 (Colo. 1989), a 4-3 decision from the

Colorado Supreme Court. In that case, a police officer was shot and killed by a former mental

patient who had been recently released from involuntary commitment to a mental institution.

The officer’s spouse brought a wrongful death action against the state, the psychiatric hospital,

and the treating psychiatrist, alleging that the psychiatrist was negligent in releasing the patient.

The court held that:

                [W]hen, as here, a staff psychiatrist of a state mental health facility
                is considering whether to release an involuntarily committed
                mental patient, the psychiatrist has a legal duty to exercise due
                care, consistent with the knowledge and skill ordinarily possessed
                by psychiatric practitioners under similar circumstances, to
                determine whether the patient has a propensity for violence and
                would thereby present an unreasonable risk of serious bodily harm
                to others if released from the involuntary commitment, and,
                further, that in discharging this legal duty the psychiatrist may be
                required to take reasonable precautions to protect the public from
                the danger created by the release of the involuntarily committed
                patient, including the giving of due consideration to extending the
                term of the patient’s commitment or to placing appropriate
                conditions and restrictions on the patient’s release.

Id. at 1200. The court reached that result primarily by relying upon §§ 315 and 319 of the

Restatement (Second) of Torts. Id. at 1208-09, 1211. The court also concluded that given the

psychiatrist’s knowledge of the patient’s condition and conduct, predictions of future

dangerousness were within the professional’s expertise to a reasonable standard of accuracy. Id.

at 1216-17. The court recognized the patient’s loss of liberty from commitment but did not

conclude that the liberty loss should be elevated above the safety of others. Id. at 1217-18. It

found the duty of care to third parties consistent with that otherwise imposed on a mental health


        11
             The presence of superseding statutes in many jurisdictions has made many judicial
decisions irrelevant to the current law such that the subject is now controlled primarily by
legislation.
                                               33
professional. Id. at 1218-19. Finally, it rejected the claim that the duty is inconsistent with the

requirement that institutionalization be used only when all lesser-restrictive alternatives are

inadequate, as well as the argument that it would lead to over-commitment by mental health

professionals to avoid tort liability. Id. at 1219-20.

       ¶ 71.   In Estate of Morgan, the Ohio Supreme Court, also by a 4-3 decision, reached the

same result in the context of a voluntary outpatient who had received therapy and medication

from a community mental health center and thereafter shot and killed his parents and injured his

sister. The plaintiffs alleged the mental health professionals were negligent in the treatment they

provided. The court relied upon Restatement (Second) of Torts §§ 315 and 319 and Tasaroff in

finding a broad duty. Id. at 1319-22. The court found that the defendants had sufficient control

over the patient’s behavior in the outpatient setting—or could acquire that control—to support a

broad duty of care. Id. at 1323-25. It found that although mental health professionals encounter

difficulty in predicting dangerousness, the standard of care is based on their ability to do so with

limitations. Id. at 1325. It also found, as the Court did in Perreira, that the duty of care would

not lead to excessive institutionalization of patients. Id.

       ¶ 72.   The decisions contrary to Perreira and Morgan tend to rely upon the possible

adverse consequences of recognizing a duty. The opposing arguments are captured in a quote

from Sherrill v. Wilson, 653 S.W.2d 661, 664 (Mo. 1983), a case in which a patient was given a

two day pass from a mental institution, during which he shot another person:

               The treating physicians, in their evaluation of the case, well might
               believe that [the patient] could be allowed to leave the institution
               for a prescribed period and that his release on pass might
               contribute to his treatment and recovery. We do not believe that
               they should have to function under the threat of civil liability to
               members of the general public when making decisions about
               passes and releases. The plaintiff could undoubtedly find qualified
               psychiatrists who would testify that the treating physicians
               exercised negligent judgment, especially when they are fortified by
               hindsight. The effect would be fairly predictable. The treating
               physicians would indulge every presumption in favor of further
               restraint, out of fear of being sued. Such a climate is not in the
               public interest.
                                                34
See also Restatement (Third) of Torts § 41, cmt. g (quoting Sherrill). We look to two decisions

that specifically reject the holdings of Perreira and Morgan to explain this rationale.

       ¶ 73.   In Leonard v. State, 491 N.W.2d 508 (Iowa 1992), which specifically rejected the

holding of Perreira, the court applied § 319 of the Restatement (Second) of Torts, but held that it

created a duty to protect only “reasonably foreseeable victims” and not members of the public

generally. Id. at 511. The Iowa Supreme Court quoted Sherrill and indicated concern about the

“limitless liability” created if the mental health professional’s duty extended to the public

generally, concluding that the victim’s interest is outweighed by the harm to the public if

“physicians were subject to civil liability for discharge decisions.” Id. at 512. The Iowa high

court also concluded that liability for discharge of a patient would chill the physician’s decision-

making and threaten the integrity of the civil commitment system. Id.

       ¶ 74.   In Adams v. Board of Sedgwick County Commissioners, 214 P.3d 1173 (Kan.

2009), which reinforced an earlier decision of the Kansas Supreme Court, Boulanger v. Bol, 900

P.2d 823 (Kan. 1995), the court specifically rejected the Ohio Supreme Court’s holding in

Morgan. In Boulanger, the Kansas high court had concluded that a mental health professional

has no duty to third parties who are injured by an attack from a released voluntary patient, and no

duty to initiate an involuntary commitment proceeding.          Adams, 214 P.3d at 1184 (citing

Boulanger, 900 P.2d at 823). The Court in Adams reiterated this holding, particularly differing

with the Morgan analysis that the duty to the patient and the duty to third parties are the same.

Id. It also expressed concern as to whether the policy of holding patients in the least restrictive

environment would be consistent with a broad liability rule. Id.

       ¶ 75.   Here, the parties’ arguments, joined by amicus curiae representing the mental

health provider community, mirror the arguments in the cases described above. The briefs

provide us with cites to, and excerpts from, articles and studies that support or oppose the claim

that mental health provider liability of the type sought here will cause an increase in unjustified

                                                 35
commitments and abandonment of treatment-in-the-least-restrictive-environment requirement, as

well as the claim that mental health professionals cannot predict dangerousness with sufficient

accuracy to act on their prediction. While these studies inform our decision, we do not find

sufficient consensus to act primarily on them. They do suggest however, that whatever decision

we reach in this case, the liability issues are appropriate for legislative action, as has happened in

many other states, to consider more thoroughly the policy arguments and evidence.

       ¶ 76.   Returning to the parties’ arguments, both plaintiffs and defendants contend that

we have essentially decided this case with respect to the duty not to release, with plaintiffs

relying upon the broad statement of duty in Peck and defendants relying upon the limitations on

duty imposed by Sorge. We conclude that defendants have the stronger support of this aspect of

the arguments. It would be difficult for us to reconcile the holding in Sorge with a holding that

the Retreat had a duty not to release E.R. as a matter of public protection. In saying this, we

specifically reject reliance on the Restatement (Third) of Torts § 41(b)(4)’s special rule for

mental health professionals. We conclude that if mental health professionals have a broad duty

of public protection to institutionalize patients who may be dangerous, child protection workers

would have a similar duty to institutionalize a juvenile who may be dangerous to the public. Our

decision in Sorge rejects such a duty.

       ¶ 77.   We are also reluctant to impose on mental health professionals a duty to third

persons generally to seek to prevent the release of a voluntary patient. We are concerned by the

broad scope of such a duty and its consequences on the mental health system. See 18 V.S.A.

§ 7251(3); In re R.L., 163 Vt. 168, 173, 657 A.2d 180, 184 (1995) (stating that this Court

requires consideration of voluntary alternatives first before resorting to an involuntary order

because involuntary treatment for mental illness is a massive curtailment of liberty often

resulting in social stigmatization (quotation omitted)). In Sorge, we recognized the conflict

between the state’s obligation to rehabilitate the juvenile involved and the obligation to protect

the public. 171 Vt. at 177, 762 A.2d at 820. We resolved that conflict decisively in favor of
                                            36
rehabilitation in a non-institutional setting. Consistent with Sorge, we must resolve the conflict

in the same way here. Thus, we elect not to impose a duty.

         ¶ 78.   We also reject on narrower grounds plaintiffs’ claim that defendant Brattleboro

Retreat can be liable for negligent performance of an undertaking under § 324A of the

Restatement (Second) of Torts.        That section requires plaintiffs to show one of three

circumstances. The only one possibly applicable in this case is § 324A(a): that defendants’

“failure to exercise reasonable care increases the risk of such harm.”            The standard of

comparison for this subsection is not the risk of harm created if defendant exercised reasonable

care, as under that standard the element would always be met. Instead, the standard is the risk of

harm that would be present if defendant never undertook to render the services. Plaintiffs cannot

show, and do not allege, that defendant’s care increased the risk to third persons. Sentry v.

Murphy Ins., 2014 VT 25, ¶ 28, 196 Vt. 92, 95 A.3d 985. 12 Therefore, section 324A does not

apply.

         ¶ 79.   Finally, our holding on these counts of the complaint against the Retreat apply

equally against NKHS, the outpatient service provider. Indeed, courts have held that duties to

control are lesser in outpatient programs because the ability to control the behavior of the patient

is more limited. See Santana v. Rainbow Cleaners, 969 A.2d 653, 665-66 (R.I. 2009). Plaintiffs

alleged in Count VI that NKHS had a duty to treat E.R. such that the risk of harm to the public

would be reduced. We decline to impose such a duty. For the reason expressed above with

respect to the Retreat, we hold that Restatement (Second) of Torts § 324A does not impose a

duty to the public on NKHS to exercise reasonable care in its undertaking to provide services to

E.R.

         ¶ 80.   In summary, we hold that counts II, III and V of plaintiffs’ complaint—which

allege that: (1) the Retreat and NKHS had a duty to inform plaintiffs of E.R.’s mental health


         12
           This point is now explicitly recognized in the comparable section of the Restatement
(Third) of Torts, § 43.
                                               37
status, his danger to plaintiffs or others, and how to perform their caretaker role in light of these

warnings, and; (2) each defendant negligently violated this duty—state causes of action that

survive a motion to dismiss. In all other respects, the motion to dismiss was properly granted.

As discussed in the foregoing paragraphs, we do not adopt § 43 of the Restatement (Third) of

Torts.

      Affirmed on plaintiffs’ failure-to-treat and negligent-undertaking claims. Reversed and
remanded on the failure-to-inform claims.

                                                FOR THE COURT:



                                                Associate Justice


         ¶ 81.    REIBER, C.J., dissenting.      Chief Justice Roger Traynor of the California

Supreme Court, one of the great common-law innovators in American legal history, nevertheless

repeatedly cautioned restraint, or what he called “circumspection,” in the evolution of judicial

precedent. “The greatest judges of the common law have proceeded in this way,” he explained,

“moving not by fits and starts, but at the pace of a tortoise that explores every inch of the way,

steadily making advances though it carries the past on its back.”13 Unlike a legislature, whose

scope of inquiry is unbounded, an appellate court is confined to the record, which in turn is

limited by the rules of evidence, and its decisions—unlike statutes—become instantly resistant to

change under the rule of stare decisis. Hence the overarching need for judicial humility in the

face of our own limited knowledge—for incremental rulings that allow a court “time to advance

or retreat” from its forays into the unknown with a minimum of unintended effects and needless

shock to those who must “act in reliance upon judicial pronouncements.”14




         13
          R. Traynor, Transatlantic Reflections on Leeways and Limits of Appellate Courts,
1980 Utah L. Rev. 255 (1980), reprinted in The Traynor Reader 200 (1987).
         14
              Traynor, supra, at 200.
                                                 38
       ¶ 82.   The majority abandons this cautious approach with no apparent awareness that it

is even doing so. It dresses its decision in the clothes of the “modern,” suggesting that its

holding flows from a natural “evolution of the duties articulated in decades of case law” and thus

represents no dramatic departure. Ante, ¶¶ 21, 23. It embraces these “precedent[s] and modern

trends” to define for mental-health care providers a new common-law duty. Ante, ¶ 51.

       ¶ 83.   But the argument is a fiction. Science and the law have indeed evolved in the

forty years since the California Supreme Court’s seminal decision in Tarasoff v. Regents of the

University of California that a therapist who “determines, or pursuant to the standards of his

profession should determine, that his patient presents a serious danger of violence to another, . . .

incurs an obligation to use reasonable care to protect the intended victim against such danger.”

551 P.3d 334, 340 (Cal. 1976). They have simply not evolved in any way that remotely supports

the majority’s decision to expand exponentially the duty owed by a mental health professional to

protect third parties in the circumstances presented here. Accordingly, I must respectfully

dissent.

       ¶ 84.   The majority observes at the outset that since Tarasoff “[s]everal courts have

limited the duty to identifiable victims, or a class of individuals whose injury is foreseeable

because of their relationship or proximity to a specifically identifiable victim.” Ante, ¶ 36

(emphasis added). Among these, of course, is our own holding in Peck v. Counseling Service of

Addison County, Inc. 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.” 146 Vt. 61, 68, 499 A.2d 422, 427 (1985). “However,” the majority continues,

“several other courts have held that a duty to warn is owed not only to specifically identified or

identifiable victims, but to foreseeable victims or to those whose membership in a particular

class . . . places them within a zone of danger.” Ante, ¶ 37. Combined with the suggestion that


                                                 39
“Peck was decided thirty years ago, before modern trends in this area,” ante, ¶ 38 (emphasis

added), the implication is that the states are now about evenly divided between these camps.

       ¶ 85.   This is decidedly not the case. The voluminous literature canvassing the legal and

medical ramifications of Tarasoff over the past four decades agree that the predominant legal

response has been to specifically define and limit a mental health provider’s duty to protect third

parties, generally requiring a serious threat to a readily identifiable victim. See, e.g., D. Katner,

Confidentiality and Juvenile Mental Health Records in Dependency Proceedings, 12 Wm. &

Mary Bill of Rt. J. 511, 532 (2004) (Although “most jurisdictions now recognize a Tarasoff-type

duty, the vast majority . . . limit it to situations in which . . . the patient has communicated to the

psychotherapist a serious threat of physical violence against a reasonably identifiable victim or

victims.” (quotations omitted)); C. Cantu, et al., Bitter Medicine: A Critical Look at the Mental

Health Care Provider’s Duty to Warn in Texas, 31 St. Mary’s L. J. 359, 377 (2000) (“The

majority of states that have addressed this issue follow the Tarasoff/Thompsonrule, which states

that when a mental health care provider foresees or should foresee that a patent poses a serious

risk of violence to a readily identifiable third person, a duty arises to use reasonable care to

protect that individual against the danger.”).15 See also Fraser v. United States, 674 A.2d 811,

816 (Conn. 1996) (noting that “state courts . . . have overwhelmingly concluded that an

unidentifiable victim has no claim in negligence against psychotherapists who were treating the

assailant on an outpatient basis”); Eckhardt v. Kirts, 534 N.E.2d 1339, 1344 (Ill. App. Ct. 1989)

(observing that, in “determin[ing] the legal duty of therapists to third persons, numerous courts




       15
           In Thompson v. County of Alameda, 614 P.2d 728, 734 (Cal. 1980), the California
Supreme Court clarified Tarasoff by explaining that a therapist’s duty to protect arises only when
the patient’s intended victim is “readily identifiable.” “[N]onspecific threats of harm against
nonspecific victims” do not trigger the duty of care. Id. at 735.

                                                  40
have concluded that a therapist cannot be held liable for injuries inflicted upon third persons

absent specific threats to a readily identifiable victim”).16

       ¶ 86.   The reason is readily apparent. Courts and legislatures from Tarasoff onward

have recognized the conflicting interests at play in such cases and the freighted consequences

however the balance is struck. On one side is the obvious and compelling interest in protecting

the public from assault by mental health patients with violent propensities. On the other is the

strong countervailing interest in safeguarding the confidential character of psychotherapeutic

communications,17 the inherent difficulty (often underappreciated by those with the luxury of

hindsight) of forecasting future dangerousness,18 and the significant societal concern that patients


       16
            As discussed more fully below, a few courts have expanded the duty slightly to
include persons within a “zone of danger” who were sufficiently targeted by the patient even if
not specifically threatened. See, e.g., Jablonski v. United States, 712 F.2d 391, 398 (9th Cir.
1983) (applying California law and Tarasoff to hold that, although defendant’s patient had made
no express threat against his domestic partner, Melinda Kimball, she was within scope of duty
where patient’s “previous history indicated that he would likely direct his violence against
Kimball,” his psychological profile “indicated that his violence was likely to be directed against
women very close to him,” and he had threatened Kimball’s mother), overruled on other grounds
by Matter of McLinn, 739 F.2d 1395(9th Cir. 1984 (en banc); Hamman v. Cty. of Maricopa, 775
P.2d 1122, 1127-8 (Ariz. 1989) (holding that “Tarasoff envisioned a broader scope” of duty than
circumstance where patient “verbalized [a] specific threat,” and could include patient’s family
where his threats placed them “within the zone of danger, that is, subject to probable risk of the
patient’s violent conduct”); see also Fraser, 674 A.2d at 816 (noting that most courts have
extended therapist’s duty of care only to “victims who were either specifically identifiable or
within a class of foreseeable victims”).
       17
           See, e.g., D. Rosenhan, et al., Warning Third Parties: The Ripple Effects of Tarasoff,
24 Pac. L. J. 1165, 1222 (1993) (concluding, based on survey of mental health providers, that in
accordance with Tarasoff “psychotherapists continue to warn patients that certain conversation
is not confidential,” and “in accord with expectation, many of these patients simply abandon
treatment,” posing additional risks to the public).
       18
           The clinical difficulties in (1) assessing the risk of violence posed by a patient and (2)
determining whether that risk is sufficient to warrant protective actions, recognized in Tarasoff,
have not appreciably lessened in the decades since. See, e.g., D. Mossman, Critique of Pure Risk
Assessment, or Kant Meets Tarasoff, 75 U. Cin. L. Rev. 523, 601-2 (2006) (explaining that
clinicians do not “predict dangerousness” but simply identify different “levels of risk,” and that
more significantly few empirical studies reveal “what level of risk is sufficient to justify . . .
action”); P. Herbert, The Duty to Warn: A Reconsideration and Critique, 30 J. Am. Acad. of
Psychiatry & Law 417, 421 (2002) (observing that, “despite advances in risk assessment,” such
assessments fall “substantially short of exact science” and involve at best “approximations of the
degree of risk”).
                                                   41
not be unnecessarily hospitalized as a means to avoid liability.19 See, e.g., Estates of Morgan v.

Fairfield Family Counseling Ctr., 1997-Ohio-194, 673 N.E.2d 1311, 1322 (listing the factors

generally considered in determining a therapist’s duty of care as including “the public’s interest

in safety from violent assault,” the “difficulty inherent in attempting to forecast whether a patient

represents a substantial risk of physical harm to others,” the “goal of placing the mental patient

in the least restrictive environment . . . free from unnecessary confinement,” and the “social

importance of maintaining the confidential nature of psychotherapeutic communications”).

        ¶ 87.   A few states, weighing these countervailing concerns, have determined that public

policy simply does not support the imposition of any duty upon a mental health care provider to

protect third parties from a potentially violent patient. See Boynton v. Burglass, 590 So. 2d 446,

448 (Fla. Dist. Ct. App. 1991) (rejecting Tarasoff-like duty to warn identified third parties of

threats by patient on the ground that it is “neither reasonable nor workable and is potentially fatal

to effective patient-therapist relationships”); Thapar v. Zezulka, 994 S.W.2d 635, 640 (Tex.

1999) (declining “to impose a common law duty on mental-health professionals to warn third

parties of their patient’s threats”).

        ¶ 88.   Several other courts have taken the opposite tack, broadly defining the therapist’s

duty to include any “foreseeable” victim without limitation to specifically identified or

identifiable targets of violence. See Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185, 194 (D.

Neb. 1980); Naidu v. Laird, 539 A.2d 1064, 1072-3 (Del. 1988); Petersen v. State, 671 P.2d 230,

237 (Wash. 1983); Schuster v. Altenberg, 424 N.W.2d 159, 166 (Wis. 1988). Significantly,



        19
          This concern was cogently summarized by the court in Sherrill v. Wilson, 653 S.W.2d
661, 664 (Mo. 1983):

                The plaintiff could undoubtedly find qualified psychiatrists who
                would testify that the treating physicians exercised negligent
                judgment, especially when the are fortified by hindsight. The
                effect would be fairly predictable. The treating physicians would
                indulge every presumption in favor of further restraint, out of fear
                of being sued. Such a climate is not in the public interest.
                                                42
however, these decisions have generally rested on the courts’ recognition of a corollary duty to

control a violent patient through involuntary commitment if necessary. See Lipari, 497 F. Supp.

at 193-4 (holding that therapist’s duty includes “whatever precautions are reasonably necessary

to protect potential victims of his patient,” including “duty to detain a patient” in hospital);

Naidu, 539 A.2d at 1073 (holding that defendants had duty to warn “and a duty to control the

actions of a mentally ill patient” and were negligent in discharging patient from hospital);

Petersen, 671 P.2d at 237 (upholding judgment for plaintiff based on psychiatrist’s failure “to

petition the court for a 90-day commitment, as he could have done . . . to protect those who

might foreseeably be endangered”); Schuster, 424 N.W.2d at 166 (rejecting defendant’s claim

that they did not “have a duty to warn third parties or to institute proceedings for the detention or

commitment of a dangerous individual for the protection of the patient or the public”). See

generally M. Quattrocchi, Tarasaurus Rex: A Standard of Care that Could Not Adapt, 11

Psychol. Pub. Pol’y & L. 109, 113 (2005) (“Some courts have imposed a duty to third parties in

the absence of an identifiable victim. These cases emphasize . . . protection in the form of

hospital confinement.”); R. Schopp, The Psychotherapist’s Duty to Protect the Public: The

Appropriate Standard and the Foundation in Legal Theory and Empirical Premises, 70 Neb. L.

Rev. 327, 345 (1991) (noting that “the Schuster court interpreted warnings and civil commitment

as comparable techniques for protecting the public from foreseeable harm”).

       ¶ 89.   Thus, those courts that have broadened the therapist’s duty to all “foreseeable”

victims without limitation have resolved the dilemma posed by the risk of over-commitment

essentially by ignoring it; under these rulings, anyone injured by a mental health patient may

argue that, in retrospect, the therapist was negligent in failing to detain the patient. In states like

Vermont, however, where public policy militates against the recognition of a duty to control a

patient through involuntary hospitalization—a policy reaffirmed by the majority today—

extending the duty to the public at large is not a sound or practical option. See ante, ¶ 75

(rejecting imposition of duty to institutionalize mental health patient in order to avoid “an
                                               43
increase in unjustified commitments and abandonment of treatment-in-the-least-restrictive-

environment” policy).

       ¶ 90.   Most states, as noted, have pursued an approach between these two extremes.

Through case law or legislation they have struck a balance among the competing concerns by

recognizing a relatively narrow duty of care limited to situations where the therapist knows or

should know that a patient poses a specific threat to an identified or reasonably identifiable third

person. This standard, as one court has observed, “evinces a sound public policy against

expanding the liability of health professionals to an indeterminate class of potential plaintiffs.”

Eckhardt, 534 N.E.2d at 1345. It reflects a considered policy judgment that the societal costs of

breaching the therapeutic bond based on generalized threats of violence—all too commonplace

in the therapeutic setting20—do not justify whatever uncertain benefits may flow from expanding

the duty to unspecified third parties based on an inherently inexact risk assessment made all the

more difficult where the potential target is not identified. See, e.g., Thompson, 614 P.2d at 736

(observing that “it is fair to conclude that warnings given discreetly and to a limited number of

persons would have a greater effect because they would alert [them] . . . of a specific threat

pointed at them”).

       ¶ 91.   This balancing of interests was cogently addressed by the Pennsylvania Supreme

Court in considering “the conundrum a mental health care professional faces regarding the

competing concerns of productive therapy, confidentiality and other aspects of the patient’s

wellbeing, as well as the interest in public safety.” Emerich v. Phila. Ctr. for Human Dev., Inc.,

720 A.2d 1032, 1040 (Pa. 1998). In light of these concerns, the court concluded that the

circumstances giving rise to a duty to third parties must necessarily be “limited,” requiring “the

existence of a specific and immediate threat” which is “made against a specifically identified or


       20
           See P. Herbert, The Duty to Warn: A Reconsideration and Critique, 30 J. Am. Acad.
of Psychiatry & Law 417, 422 (2002) (explaining that “mental health workers must grapple with
threats of suicide or of violence against others regularly as an integral part of their work,” and
that such threats “are daily grist”)
                                                44
readily identifiable victim.” Id. “Strong reasons,” the court concluded, compel the conclusion

that the therapist’s duty “must have some limits.” Id. Many other courts have echoed these

concerns in reaching similar conclusions. See, e.g., Fraser, 674 A.2d at 816 (adopting rule that

therapist’s duty to protect third persons is limited to identifiable victims or class of identifiable

victims based on “balance [of] the interests of those injured by psychiatric outpatients against the

interests of the mental health profession in honoring the confidentiality of the patient-therapist

relationship and in respecting the humanitarian and due process concerns that limit the

involuntary hospitalization of the mentally ill” (citation omitted)); Eckhardt, 534 N.E.2d at 873-4

(rejecting expansion of therapist’s duty beyond “cases involving specifically identifiable,

potential victims as evidenced by specific threats” because “[h]uman behavior is simply too

unpredictable and the field of psychotherapy presently too inexact,” and imposition of a broader

duty “would be to place an unacceptably severe burden on those who provide mental health care

to the people of this State, ultimately reducing the opportunities for needed care”). In addition,

as noted, numerous states have codified similar, practical limits on a mental-health care

provider’s duty of care to third parties. See D. Mossman, Critique of Pure Risk Assessment, or

Kant Meets Tarasoff, 75 U. Cin. L. Rev. 523, 586 n.204 (2006) (observing that, “[t]o clarify

clinicians’ responsibilities, many states have enacted laws that limit therapists’ potential liability

if they take specified actions when a patient makes a serious threat against an identifiable victim”

(quotation omitted)); Nat’l Conference of State Legislatures, Mental Health Professionals’ Duty

to Warn, www.ncsl.org/research/health/mental-health-professonals-duty-to-warn.aspx (2015)

(collecting state statutes).

        ¶ 92.   The point here is not that the Court has adopted a minority position without

expressly acknowledging it. If that were the problem, it would be enough to simply articulate the

competing viewpoint, and agree to disagree. However ill-advised the majority’s choice, it would

at least be based on familiar ground. And while the decision to abandon a standard that so many


                                                 45
states have found to be the proper balance between competing public-policy interests might be

mistaken, it would at least have the virtue of transparency.

       ¶ 93.    The problem here is altogether different, however, and far more serious. For the

majority not only expands the scope of a therapist’s duty beyond the limits recognized by this

Court in Peck, it creates an entirely new duty of care which plaintiffs here have labeled a duty to

“train” and the majority sees fit to “recast as a duty to provide . . . information.” Ante, ¶ 52.

The majority holds that defendants “owed a duty of care to provide sufficient information to the

parents so that they could fully assume their caretaker responsibilities to assist E.R. and protect

against any harmful conduct tin which he might engage.” Ante, ¶ 44.

       ¶ 94.    This holding is extraordinary in its scope and implications. To recall, most duty-

to-protect cases have divided along a fault-line between those limiting the duty to identified or

reasonably identifiable targets of violence and those that would include all “foreseeable” victims,

the latter generally predicated on a duty to treat and, if necessary, confine a dangerous patient

given the general impracticality of warning all remote, albeit foreseeable victims. The majority

rejects the principle that a therapist’s duty extends only to reasonably identifiable targets of

specific threats by the patient. It also rejects as a matter of policy any duty to control a mental-

health patient through involuntary commitment. Ante, ¶ 77.

       ¶ 95.    Out of this seeming impasse the majority creates a new duty—a duty to warn and

to train or “assist” not the patient or the patient’s targeted victims, but the patient’s parents or,

more broadly, his or her “caretakers” so that they may control the patient and prevent injury to

the public. Ante, ¶ 59. This is worth a moment’s reflection. As a matter of policy, according to

the majority, no liability may attach to E.R.’s mental health providers for their allegedly

negligent failure to control E.R.’s conduct by providing for his involuntary commitment.

Nevertheless, liability may attach to the same defendants for their allegedly negligent failure to

enable E.R.’s parents to control his conduct by providing them with adequate warning and

“assistance.”
                                                 46
        ¶ 96.   The imposition of a duty so novel and with such potentially broad consequences

for mental health care providers, their patients, and the general public surely requires a more

solid foundation than an allegation in a complaint. Recognizing that this case remains at the

pleading stage, duty nevertheless constitutes an essential element of plaintiffs’ cause of action,

and its existence is a question of law which this Court must decide in the first instance in light of

all relevant policy concerns. See Endres v. Endres, 2008 VT 124, ¶ 11, 185 Vt. 63, 968 A.2d

336 (noting that “duty . . . is central to a negligence claim” and that “its existence is primarily a

question of law” based on “those considerations of policy which lead the law to say that the

plaintiff is entitled to protection” (quotation omitted)). Yet nothing in plaintiffs’ complaint even

remotely identifies the basis for recognizing a so-called duty to “train” a patient’s parents or

“caretakers” to protect the public. Nothing in plaintiffs’ briefing below or before this Court

identifies any medical treatises or other literature defining and describing the basic clinical

standards, practices, and therapeutic goals underlying such a duty. Nothing in the briefing

identifies any decisional law or authority elsewhere specifically recognizing and imposing such a

duty.

        ¶ 97.   We do, on the other hand, know from plaintiffs’ complaint that certain actions

were taken by defendants after E.R.’s discharge. We know that the Brattleboro Retreat made an

aftercare treatment plan for E.R. and reviewed it with E.R. and his parents, and that the plan

“involved E.R. being seen on a regular basis” at NKHS. We know that the medical professionals

at the Retreat prescribed medications for E.R. to take on a daily basis. We know that E.R. met

with a “treatment team” at NKHS, and that a “cognitive remediation therapy” plan was put in

place and signed by E.R. We know that E.R told his mother in mid-December 2010 that he had

ceased taking his medications, and that she reported this to NKHS. And we know that, on the

day of the assault, E.R.’s father had taken E.R. with him to oversee work being done at an

apartment building owned by E.R.’s grandfather.


                                                 47
       ¶ 98.   These facts themselves, hardly unique, highlight the most significant deficiency in

the majority’s newfound duty. Even assuming that plaintiffs could establish through expert

evidence some professional standards for the “training” of a patient’s caretaker, the imposition of

such a duty demands consideration of the policy implications underlying it—its practical benefits

against its societal costs. See Langle v. Kurkul, 146 Vt. 513, 519, 510 A.2d 1301, 1305 (1986)

(noting that existence of duty is primarily question of law dependent on variety of policy

concerns, including “the closeness of the connection between the defendant’s conduct and the

injury suffered,” the “burden to the defendant,” and the “consequences to the community”

(quotation omitted)).

       ¶ 99.   The facts alleged by plaintiffs show that, even with the practical steps undertaken

by defendants and E.R.’s parents to facilitate his functioning safely in a less restrictive

environment than a closed hospital ward—providing an aftercare plan and reviewing it with

E.R.’s parents, establishing an outpatient treatment team, prescribing him daily medication,

endeavoring to monitor his activity by taking him to job sites, and reporting that he had stopped

his medication—they could not prevent him from perpetrating a spontaneous act of violence.

       ¶ 100. The majority’s speculation that defendants might have provided some additional

“information” or “assistance” to E.R.’s parents to prevent the assault simply misses the point. To

impose such a duty on health care providers undermines the fundamental policy underlying our

mental health care system, a policy designed to maximize a patient’s freedom and dignity by

providing treatment in the least restrictive environment available.        It is the same policy

resoundingly reaffirmed by the majority today in refusing to impose a tort duty on health care

providers to institutionalize a patient. See ante, ¶ 75 (rejecting duty to institutionalize mental

health patient to avoid “an increase in unjustified commitments and abandonment of treatment-

in-the-least-restrictive-environment” policy).

       ¶ 101. Uncertainty counsels caution, for courts and clinicians alike. Any responsible

mental health care provider uncertain as to how, if at all, to satisfy this new, amorphous duty to
                                              48
train or assist a patient’s “caretaker” sufficiently to prevent future harm might understandably

decide to err on the side of a more—rather than a less—restrictive treatment setting rather than

risk a lawsuit by the random victim of an outpatient assault. Moreover, considering the many

adult patients living with someone who could be characterized as a “caretaker”—be it the

patient’s parents, spouse, domestic partner, or friend—the consequences of such decisions could

be far reaching. Balanced against the dubious odds of actually predicting, much less preventing,

random acts of violence by a patient absent any specific threat or identifiable victim, the risk

becomes prohibitive.

        ¶ 102. The expected response to these concerns is that they are merely “speculative”

while we know—in contrast—that mental health providers routinely make predictions of

dangerousness in deciding to commit a patient and routinely apply Tarasoff when deciding

whether a patient poses a threat. Thus, it is easy to posit that the concern for overcommitment is

exaggerated or unfounded, that no responsible mental health care provider would involuntarily

hospitalize a non-dangerous patient to avoid a lawsuit, much less release a dangerous one despite

the risk to the public.

        ¶ 103. The flaw in this response is the assumption that there are “yes” or “no” answers to

the mental health clinician’s decisions. The relevant medical and legal literature, however, belies

this assumption. There are, in fact, no answers, but only imperfect assessments of differential

levels of risk, and there are no clear standards defining the level of risk sufficient to trigger

protective measures. See, e.g., Mossman, supra, 75 U. Cin. L. Rev. at 567, 577 (observing that

most recent medical studies show that “a therapist’s predictive knowledge about future violence

is really an ability to make risk estimates,” while “there is and can be no rationally established,

broadly accepted criterion for what probability of risk constitutes the level of ‘serious danger’

that should trigger a protective response”); Herbert, supra, 30 J. Am. Acad. of Psychiatry & Law

at 422 (noting the “residuum of uncertainty” in assessing whether “a patient really means

particular words as a threat”). Tarasoff has worked, according to surveys and studies, because
                                              49
most states employ reasonably clear, narrow, and understandable standards that require a serious

threat to a reasonably identifiable target. See, e.g., Rosenhan, supra, 24 Pac. L. J. at 1203, 1208,

1217 (findings from broad survey of psychotherapists showed that, while very small percentage

rated their ability to assess dangerousness “very accurately,” most understood duty to protect was

predicated on identification of specific victim and believed that duty was consistent with ethical

obligations); Mossman, supra, 75 U. Cin. L. Rev. at 603 (noting that clinicians have sought and

been well served by “statutory boundaries on the duty to protect, boundaries that tell them when

the duty arises (usually, following explicit threats toward specific targets) and that define the

ways of discharging the duty”); M. Soulier, et al, Status of the Psychiatric Duty to Protect, Circa

2006, 38 J. Am. Acad. of Psychiatry & Law 457, 471-2 (2010) (concluding from surveys of

psychotherapists and review of legal evolution of Tarasoff duty that “statutes appear to promote

a useful social policy, limiting the duty to protect to cases in which victims are identified or

reasonably identifiable” and as such pose little threat to clinician’s ability to practice). The broad

duty created by the majority, in contrast, contains none of the limits that form a natural and

necessary counterbalance to the risks of defensive practice and overcommitment in the mental-

health context.

       ¶ 104. To dismiss the concerns of the mental health care profession in this case as

speculative or even self-serving, moreover, is presumptuous. It is all too easy to assign new

duties to a profession we know little about, and have no responsibility to implement. Judicial

restraint in creating duties for other professions is not an end in itself; it is the end-result of

recognizing our own limitations. It is wisdom grounded in humility.

       ¶ 105. Finally, I would note that the majority’s alternative basis for imposing a duty of

care predicated on its conclusion that “E.R.’s parents fell within the ‘zone of danger’ from E.R.’s

conduct” is equally flawed and unpersuasive. Ante, ¶ 47. The zone-of-danger doctrine, as noted,

simply extends the therapist’s duty to persons within a finite class of reasonably identifiable

potential targets. Thus, in the case cited by the majority, Hamman v. County of Maricopa, the
                                                50
record showed that the patient had “expressed jealousy of his stepfather” to the therapist; that the

patient’s parents had expressed concern to the therapist for their safety and begged the therapist

to admit the patient to the hospital; that the therapist failed to do so; and that the patient

subsequently attacked his stepfather with an electric drill. 775 P.2d at 1123-4. Based on these

facts, the court reasonably concluded that, despite the absence of a specific verbalized threat

against the parents, “they were readily identifiable persons who might suffer harm.” Id. at 1128.

       ¶ 106. Despite the majority’s statement that it “find[s] Hamman persuasive and follow[s]

its reasoning,” ante, ¶ 49, nothing on the limited factual record here brings this case within the

“zone of danger” doctrine articulated in Hamman and elsewhere. First, the complaint did not

allege that E.R. had threatened either his parents or a class of persons that might reasonably be

construed to include his parents.21 Nor did plaintiffs claim, as the majority argues, that E.R.’s

earlier aggression toward a member of the staff at the Retreat somehow brought E.R.’s parents

into the zone of danger applicable to all “caretakers.” To suggest that a threat against a nurse,

therapist, physician or other mental health care provider somehow represents a threat against an

identifiable class of all family members and friends who help with the patient’s outpatient care

would stretch the “zone of danger” doctrine beyond recognition.

       ¶ 107. Second, and more significantly, the doctrine was designed to protect a slightly

expanded class of reasonably identifiable potential victims, and E.R.’s parents were not the

victims here. As noted, plaintiff did not allege any threats—explicit, implicit, or otherwise—

against his parents. Nor is there any factual basis to support a conclusion that the actual victim,

Mr. Kuligoski, was within an identified or identifiable class of potential victims. The “zone of

danger” argument thus fails entirely.

       ¶ 108. This Court has repeatedly cautioned against placing “our imprimatur” upon a new

legal duty “without first determining whether there is a compelling public policy reason for the


       21
             At the motion hearing, plaintiffs’ counsel readily conceded that “there was no
identifiable victim” in this case.
                                               51
change.” Langle, 146 Vt. at 520, 510 A.2d at 1306; accord Goodby v. Vetpharm, Inc., 2009 VT

52, ¶ 11, 186 Vt. 63, 974 A.2d 1269; Knight v. Rower, 170 Vt. 96, 107, 742 A.2d 1237, 1245

(1999); Smith v. Luman, 148 Vt. 595, 599, 538 A.2d 157, 158 (1987). The majority identifies no

compelling public policies to warrant the extraordinary duty it imposes on mental health care

providers by today’s ruling. On the contrary, settled public policy governing our treatment of the

mentally ill demands precisely the opposite result. I therefore respectfully dissent.

       ¶ 109. I am authorized to state that Justice Skoglund joins this dissent.



                                                Chief Justice


       ¶ 110. SKOGLUND, J., dissenting.           I concur in the Chief Justice’s well-reasoned,

indeed unassailable, dissent. The majority has created a heretofore unheard of duty based on an

allegation in a complaint. This new duty to train or assist a patient’s caretakers so as to protect

the public finds no support in case law or public policy. It is illogical, potentially fatal to

effective patient-therapist relationships, and places an impossibly onerous obligation on those

who provide mental health care to the people of this state.

       ¶ 111. The facts of this case center around an unprovoked, spontaneous act of violence

directed against a stranger by an individual suffering from a severe mental illness. Nothing short

of anticipatory confinement in a hospital could have prevented it. But now, severely crippling

Vermont’s public policy of treatment of the mentally ill in the least restrictive environment, the

majority has delivered a cautionary tale involving the threat of tort liability for releasing a

mentally ill person to people not sufficiently trained to provide care and control. This is a

preposterous, reckless decision.

       ¶ 112. The majority opinion identifies the cautious and thoughtful evolution of the duty

owed by mental health professionals begun in Tarasoff v. Regents of University of California,

551 P.2d 334 (Cal. 1976), Thompson v. County of Alameda, 614 P. 2d 728 (Cal. 1980), and the

                                                52
cases that came after. It then abruptly abandons consideration of identified victims or reasonably

identifiable victims and finds a duty “to provide sufficient information to the parents so they

could fully assume their caretaker responsibilities to assist E.R. and protect against any harmful

conduct in which he might engage.” Ante, ¶ 44.

       ¶ 113. First of all, I posit that the parents of E.R. knew he could be dangerous as it was

his behaviors in their home that precipitated his initial hospitalization. They were privy to the

discharge summary from the Brattleboro Retreat and worked with the Retreat to develop an

aftercare treatment plan that included regular visits to Northeast Kingdom Human Services

(NKHS). They were aware he was on antipsychotic medications and had been told that they

should give E.R. his medications and not rely on him to medicate himself. The mother knew

enough to be concerned when E.R. told her he had stopped taking his medication. They had

been warned. They knew E.R. could be dangerous when deep in his illness. What “training”

should have been offered remains a mystery.

       ¶ 114. What is substantially more troubling is the framework upon which the majority

builds its new duty. As explained by the Chief Justice in his dissent, the majority relies on the

“zone-of-danger” doctrine that simply is not implicated in this case. There is no allegation E.R.

threatened his parents. The parents were not injured. And, the actual victim could not have been

identified as a reasonably identifiable potential victim, the expanded class the doctrine is

designed to protect.

       ¶ 115. The majority finds Hamman v. County of Maricopa, 775 P.2d 1122 (Ariz. 1989)

“persuasive” and claims to follow its reasoning. The Hamman case is completely distinguishable

from the case at bar. In Hamman, the doctor refused to admit the patient to the hospital and,

according to the parents, told them their son was “harmless.” Id. at 1123. Two days later, the

son viciously attacked the stepfather.     The court noted that the doctor was aware that

schizophrenic-psychotic patients are prone to unexpected episodes of violence, knew that the son

was living with his parents, and thus should have known that “[i]f indeed [the doctor] negligently
                                                53
diagnosed [the son] as harmless, the most likely affected victims would be the Hammans. Their

constant physical proximity to [their son] placed them in an obvious zone of danger. The

Hammans were readily identifiable persons who might suffer harm if the psychiatrist was

negligent in the diagnosis or treatment of the patient.” Id. at 1128. The majority neglects to

provide any analysis to link the case at bar with the situation described in Hamman.

       ¶ 116. Under this new duty, mental health providers will have to consider generalized

threats of violence directed against no one in particular, which I suggest are commonplace with

severely ill patients, and will have to weigh whether to violate the patient-physician privilege,

thus damaging whatever therapeutic relationship existed and perhaps the treatment of the patient

as well. After the risk assessment, they will then, in trying to place the patient in the least

restrictive environment available, need to do an educational assessment of potential caregivers.

As the Chief Justice notes, the majority identifies no professional standards, legal authority, or

public policies to support a duty so “extraordinary in its scope and implications.” Ante, ¶ 94.

Long after this Court has forgotten about it, this amorphous duty to train or assist will continue to

perplex and bedevil practitioners in the field of mental health who must actually attempt to

understand the obligations imposed and comply.

       ¶ 117. Finally, the majority disposes of statutes and regulations that govern confidential

communications between patient and physician by suggesting that, one, they only codify an

evidentiary privilege, and two, there are no policy objections to family members being “fully

knowledgeable of the patient’s condition and history.” Ante, ¶ 59. This is a breathtaking

disregard for the tort liabilities or ethical claims that can result from the disclosure of health

information or history and a startling admission by the majority that no “policy objection” occurs

to them for the wholesale disclosure of a person’s mental health condition and history to the

ambiguous sobriquet “family.”

       ¶ 118. Decisions to create and impose new legal duties on other learned professions have

profound consequences. To impose a novel legal duty on mental health care professionals
                                        54
without extensive discussion of the professional knowledge, skills, and practice standards—if

any—that may apply and the policy consequences that may result, is not merely, as the Chief

Justice suggests, “presumptuous.” It is the essence of judicial arrogance.



                                               Associate Justice




                                                55
