Earle v. State, No. S0272-01 CnC (Norton, J., Dec. 7, 2004)

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STATE OF VERMONT                                    SUPERIOR COURT
Chittenden County, ss.:                         Docket No. S0272-01 CnC



EARLE

v.

STATE OF VERMONT




                                 ENTRY

       State of Vermont seeks summary judgment on plaintiff Nathan
Earle’s twelve counts of negligence against the Department of Social and
Rehabilitative Services (SRS). Earle claims that he was sexually abused by
N.C., a foster child, that the SRS failed to control or remove from Earle’s
grandparents’ house. Earle also claims that SRS failed to remove him from
his household, despite evidence of physical abuse by his mother. The State
challenges these claims on a variety of theories, including sovereign
immunity and the discretionary function exception.

                                Undisputed Facts

       For the purpose of summary judgment, the facts are as follows. In
1976, SRS placed N.C. in the home of Earle’s grandparents. Prior to his
placement, N.C. had no history of sexually abusing others. In December
1980, N.C. sexually molested Earle and his brother. This incident was
reported, and SRS confirmed it to the extent that it involved Earle’s brother.
This abuse had actually begun in 1979 and appears to have involved more
than one incident although in 1980 SRS only had evidence of the single
incident.1 SRS enrolled N.C. in counseling and monitored him through
periodic visits from a social worker. In April 1982, the Earles told SRS that
N.C. had again molested Earle’s brother. SRS recommended that N.C. be
prosecuted and removed him from the Earle’s home in September 1982.
There is no evidence that N.C. molested Earle in1982 or that either brother
was molested after the April incident. N.C. had no further contact with
Earle.

       Earle’s mother, before, during, and after the incidents with N.C., was
working with SRS through another social worker. This assistance was
unrelated to N.C. and his placement in the grandparents’ household.


       1
         It is unclear when SRS learned about Earle’s molestation. The evidence
shows that the brother’s molestation was specifically brought to its attention, but
as of 1980 SRS was at the very least aware that Earle had probably been molested
by N.C. though it is unclear to what extent SRS was aware of the specific acts.
From the record, Earle testifies that he knew of three incidents and a fourth that he
recently recovered from his memory. The dates of these incidents are unclear, but
they appear to have happened between 1979 and 1981.
Earle’s mother was under a plan of assistance, based on trouble she was
having raising Earle and his brother. SRS involvement included working
with the mother in dealing with depression and stress, support from a social
worker, and counseling to stop her overly physical method of dealing with
Earle and his brother. SRS also put Earle and his brother into an “at risk”
day care progam and intermittent therapy. SRS continued to monitor
Earle’s mother throughout the 1980s. She and her children continued to
participate in some therapy sessions, but her physical abuse continued.
These incidents of abuse vary from a report by the children’s care providers
that Earle’s brother had red marks on his face from where he had been
slapped too hard by his mother to Earle’s recollections that his mother
would smack him on the head with a billy club.

        Earle’s behavior deteriorated as a result of these traumas, and in the
next few years, he showed self-destructive behavior, anti-social tendencies,
and problems at school. When he turned 17, SRS removed Earle from his
mother and put him in foster care. This did not change Earle’s depressive
and self-destructive behavior, and he spent time at the Brattleboro Retreat
to curb his outbursts of violent behavior directed at his mother and himself.
Earle turned 18 in 1995. In 1996, his brother filed a complaint against SRS
for failing to protect him from N.C. Earle was not a part of that suit but
was aware of it. Earle has since moved to Maine and enrolled in college.
Since 2000, he has been in therapy where he has recovered several
memories of childhood.

                               Legal Analysis

      Earle has brought 12 claims against the state of Vermont for the
combined sexual and physical abuse that N.C. and his mother inflicted on
him. While Earle has not made any distinction as to which claims
correspond to which facts, for present purposes these claims must be
analyzed through their unique and respective factual premises.

                 Earle’s claims based on N.C.’s sexual abuse

        Earle’s claims based on N.C.’s abuse can be divided into before and
after SRS’s discovery that N.C. had molested Earle’s brother. Before SRS
had reports of N.C. actually abusing Earle or his brother, Earle claims SRS
should have taken precautions to protect him before placing N.C. in his
grandparent’s household. As there was no official relationship between
Earle and SRS at the time, he question of SRS’s liability is more properly
stated as whether it had a duty to control N.C., and whether it breached that
duty by putting N.C. into a household where he would have contact with
Earle.2

       The Vermont Supreme Court has established four factors to
determine whether a governmental body has undertaken a duty of care
toward specific individuals. Sorge v. State, 171 Vt. 171, 174 (2000). The
factors are: (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. (citing Sabia v. State, 164 Vt. 293,
299 (1995)).



       2
       This analysis will set aside, for the moment, any issue of sovereign
immunity as raised by the State.
        Of these four factors, the Court has emphasized the primary
importance of the first factor. See Sorge, 171 Vt. at 175 (discussing Sabia’s
reliance on the first factor in determining liability). This is to such an
extent that it appears that a failure to find a statutory basis for liability
condemns plaintiff’s case. See generally id. (affirming summary judgment
without further discussion when plaintiffs were unable to demonstrate
either a statutory or common law basis for liability under factor one).3 This
is consistent with the general principle of sovereign immunity, which
permits claims against the government only to extent that the government
has clearly waived its immunity and within the structure of private
negligence actions. Denis, 159 Vt. at 484–85.

       In regards to this first factor, Earle does not cite any statute that
would assign the state a duty of care over him prior to the 1980 discovery
of sexual abuse.4 The only relationship Earle cites to is a “special
relationship” that he also argues was created when SRS learned of N.C.’s
abuse. Earle’s only argument for any duty of care prior to the December
1980 abuse is similar to the plaintiffs in Sorge; SRS owed him a duty of
care based on SRS’s failure to control N.C. This duty is premised on SRS’s
custody of N.C. and an exception to the general rule that there is no duty to

       3
         Cf. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 487 (1993) (adopting the
four factors as “useful indicia” and noting that the first “goes directly to the heart
of plaintiff’s argument”).
       4
         Earle does argue a duty of care from SRS’s dealings with his mother, this
issue is addressed below and has nothing to do with SRS’s placement of N.C. It
is unclear from his statement of facts when Earle believes SRS had a duty to
control. The court’s analysis, in this part, reflects less on Earle’s main arguments
and more on a desire to analyze his asserted material facts and claims in a
coherent and logical manner.
control others. Restatement (Second) of Torts § 315. Citing the common
law exception, the plaintiffs in Sorge argued that SRS custody created a
“special relationship” between the foster child and SRS, which made SRS
liable to others for the foster child’s actions. Sorge, 171 Vt. at 176–77.

        The Court roundly rejected this theory of liability by noting that SRS
custody is not established for the purpose of “control.” Id. at 179. Unlike a
private sanatorium where the purpose of the facility was to “control” the
individual by “securing him” within its confines, SRS custody is meant to
rehabilitate juvenilles and re-institute them to their family and the public.
Id. The public policy adopted by the legislature in its statutes governing
SRS custody demonstrated an intent to shift some risk onto the public—that
foster children might assault or molest others—in return for the benefit of
rehabilitating them and taking measures in their best interest, such as a
stable home life with parents rather than institutional care. Id. at 180. As
the facts of Sorge illustrate, this principle extends to juveniles in SRS
custody regardless of their history. See id. at 173, 180–81 (declining to
assign a duty of care despite child’s known history of “violent, assaultive,
and delinquent behavior”).

      In this case, the court cannot find a cause of action for negligence
based on N.C.’s actions to Earle prior to December 1980. Like Sorge, there
was no prior relationship between SRS and Earle. The sole relationship
between SRS and N.C.5 produces no evidence that would illustrate that


       5
         Unlike the minor in Sorge, N.C. was not in SRS custody for delinquency.
This difference, however, does not change the similarities in relationships, which
are essentially custodial. If anything, this difference reflects a lower expectation
for SRS in N.C.’s case since the risks and responsibilities of rehabilitative care are
not implicated here.
SRS knew or had reason to know that N.C. posed a threat to the general
public or to Earle in particular. When it placed N.C. in the grandparents
household, SRS was following its statutory mandate. See 33 V.S.A. §§
305, 3501 n. Permanency Planing. Its continuing legal custody of N.C. did
not amount to “control,” and therefore did not require SRS to take any
further actions.
       Moving forward in time to the period following SRS’s discovery of
sexual abuse, the same Sorge analysis applies to Earle’s claims that SRS
owed him a duty to control N.C. As Sorge makes clear, the very nature of
SRS’s custodial relationship precludes a duty of care to others. While the
facts of this case raise some questions about the limits of Sorge’s balancing
when SRS knows one of their children to be a realized threat, they do not
suggest behavior so egregious or completely foreseeable that N.C.’s actions
might have somehow modified his relationship with SRS and changed its
duty to control.

       Earle’s arguments for SRS liability after December 1980 also
emphasize another source of duty, namely one that SRS directly owed to
Earle once it was aware of the sexual abuse. Under current statutes, SRS
has a duty to a child once a report of sexual abuse is made. 33 V.S.A. §
4915. This duty includes investigating the incident and making a
determination of the risks of keeping the child in the household. Id. Thus,
Earle argues, SRS owed him a duty to remove N.C. or himself and prevent
further abuse.6

       This argument brings the analysis back to the issue of sovereign

       6
         Again, it is unclear if Earle suffered any further abuse after December
1980. For the purposes of summary judgment, the court accepts that at least one
incident appears to have occurred after December 1980.
immunity. The general rule is that the State of Vermont and its agencies
are immune from private actions unless it is waived. Denis, 159 Vt. at
484–85. Under 12 V.S.A. § 5601, the State has waived its immunity for
certain tort actions. Id. This waiver, however, depends on the nature of the
claim. If the cause of action is an “ordinary common-law tort,” such that a
private person in the circumstances of the government would be liable, then
§ 5601 (a) allows plaintiffs to recover. Id. This is know as the “private
analog” test. SRS is liable for Earle’s injuries only if Earle’s cause of
action is comparable to a cause of action that he could raise against a
private citizen. Id. This test excludes actions that are uniquely government
functions and do not have a private analog. LaShay v. Dep’t of Soc. &
Rehab. Servs., 160 Vt. 60, 69 (1993).

       Earle urges this court to analyze SRS’s actions and inactions under
Sabia v. State, which found that SRS had a duty under 33 V.S.A. §§ 4911,
4915 to protect children after reports of abuse. 164 Vt. 293, 299–304
(1995) (noting that 12 V.S.A. § 519 created a private analog for this duty).
There are several problems, however, with a straightforward application of
Sabia to the present case.

        First, the State correctly notes that §§ 4911 and 4915 were not in
effect at the time.7 While § 4911's antecedent—13 V.S.A. § 1351—is
exactly the same, § 4915's does not share the detailed enumerated
responsibilities of its successor. That said, the statutes do share two key


       7
          These statutes were originally adopted as 33 V.S.A. §§ 681,685 and took
effect April 25, 1982. 1981, No. 207 (Adj. Sess.), §§ 1, 5. The purpose of the
amendments was to create a “successor to and continuation of chapter 27 of title
13 relating to reports of physical abuse of children.” Id. at § 4. The relevant text
of chapter 27 is available at 1973, No. 237 (Adj. Sess.).
provisions that Sabia found to be important: (1)“[SRS] shall cause an
investigation to commence within seventy-two hours after receipt of a
report [of child abuse]”; (2) if the investigation produces evidence of abuse
or neglect, SRS “shall cause assistance to be provided to the child and his
family in accordance with a written plan of treatment.” 164 Vt. at 299. For
the Court, these two provisions along with § 4915's additional provision—
requiring SRS to visit the child’s home and interview/observe the child—
worked with § 4911's purpose to create a statutory duty that satisfied the
first of the four factors which determine whether a governmental body has
undertaken a duty of care to specified persons. Id. In this case,
notwithstanding the lack of certain detailed responsibilities in § 1355, the
statutory duty established by §§ 1351, 1355 are nearly identical and trigger
the same duty of care.

       Once this duty of care emerges, however, the other three factors
become problematic. SRS had knowledge about N.C.’s abuse of Earle’s
brother as early as December of 1980, but it is not clear when and to what
extent it knew of Earle’s abuse. Much of Earle’s abuse was suppressed and
never reported to SRS. Nevertheless, it was not unreasonable for SRS to
extrapolate from its knowledge about Earle’s brother to consider the danger
posed to Earle. Yet, this knowledge does not translate to reliance, the third
factor. SRS received one report about Earle’s brother in December 1980.
In addition to the counseling that N.C. received, SRS also enrolled Earle’s
brother in “at risk” day care and sent him to therapy. To the extent that
SRS made any promises, they were to Earle’s brother and his mother.
Earle’s harm was not reported to SRS at the time. Nor did SRS make
promises to Earle and his immediate family, which discouraged them from
seeking alternative relief. As to the final factor, the facts are inconclusive.
Certainly N.C.’s removal in 1980 would have prevented further harm to
Earle and his brother, but it is not clear that this failure to remove was
because of a lack of due care since SRS did take some reasonable measures
to prevent further abuse. Notwithstanding these mixed results and the
question they raise about how Sabia should be applied in such a situation,
there is enough evidence to move forward in the analysis. Cf. Denis, 159
Vt. at 487 (using the four factors as indicia).

        The issues of reliance and due care do raise a larger question about
SRS activity. This directs the court to the question of whether there is a
private analog to Earle’s claim of negligence against SRS. In Sabia two
sisters reported abuse by their stepfather at different times, through
different, credible sources. 164 Vt. at 297. SRS took both reports and did
nothing. As a result, the sisters endured 4 years of continuing sexual and
physical abuse at the hands of their step-father. Id. When the sisters
brought suit, their claim was not that SRS’s actions had been ineffective or
that SRS should have removed them from their step-father; their claims was
a more basic claim of relief founded upon SRS’s total failure to do
anything. Id. at 301 (“[P]laintiffs’ actual complaint is that SRS failed to
provide any assistance whatsoever, despite its statutory duty to do so.”).

       In contrast, SRS did act in the present case. It enrolled N.C. in
counseling; it monitored N.C. through a social worker; it enrolled Earle’s
brother, and later Earle, in “at risk” day care and therapy; and it worked
with Earle’s grandparents to deal with N.C. Therefore, Earle’s claim is
necessarily a more narrow claim that SRS failed to remove N.C. or Earle
from their respective households. This is Earle’s true claim because the
larger duty to take steps to protect or “cause assistance to be provided”
were factually met on some level. Earle’s argument is that these actions
were not enough; that as long as N.C. lived with his grandparents, or Earle
lived close by, Earle was at risk of further abuse and SRS was not
protecting him. To the extent that this is Earle’s claim, it cannot stand
because it lacks an analogous private action. Removing children from
households is a uniquely government function, and there is no private
equivalent. LaShay, 160 Vt. at 69; see also Sabia, 164 Vt. at 301 (broader
interpretation of private analog appropriate only where state failed to do
anything).

        Earle’s remaining claims concerning N.C. are base on the negligence
surrounding SRS’s actions to prevent further harm.8 According to Earle,
SRS should have recognized through their counseling and monitoring of
N.C. that he was a continuing threat and that the initial incident of sexual
abuse was a harbinger not an aberration. This argument faults SRS’s
choices and urges the court to allow a jury to find negligence. This
argument is impermissible under 12 V.S.A. § 5601(e)(1), which bars claims
attacking the discretionary functions of an agency. This exception to tort
liability, known as the “Discretionary Function Exception,” was created to
prevent courts from invading the province of other branches of government
and passing judgment on legislative or administrative policy through tort
law. Sabia, 164 Vt. at 307. While the exception does not apply to actions
that the State must take—doing something after a child abuse report—it
does protect judgments or choices that agencies make—what they chose to
do. Searles v. Agency of Transportation, 171 Vt. 563, 563 (2000) (mem.).
If the action involves an “element of judgment or choice,” then the court
must determine “whether that judgment is of the kind that the discretionary
function exception was designed to shield.” Id. (quoting United States v.
Gaubert, 499 U.S. 315, 322–23 (1991)).



       8
         This also includes any claim that N.C. should have been removed from
the grandparents’ home to the extent that such a claim would survive under
LaShay or Sabia.
       In this case, SRS was faced with a report of child abuse. Under the
existing statute, 13 V.S.A. § 1355, it had a duty to investigate and render
any assistance it deemed necessary. Earle cites to no statutory standard or
rule that dictates how SRS must access a child’s need or what assistance
must be rendered in each case. Instead, he offers competing analyses that
dispute SRS’s assessments and decisions as well as offering reasons why
SRS should have acted differently. This evidence does not disprove the
judgmental nature of SRS’s decisions. If anything, it demonstrates the
subjective nature of SRS’s role and the alternative considerations that
agency might have used to make its determination.

        This is precisely what the exception was designed to avoid. This
court has no business second-guessing and re-hashing SRS decisions and
assessments conducted 22 years ago. The policy considerations that SRS
used in its decision to seek therapy for N.C. rather than removing him, may
in retrospect have been flawed and led to further harm, but there is no
evidence that SRS failed to assess the problem or seek some relief to
prevent N.C. from repeating his crimes and harming Earle or his brother.
Given that such decisions lie beyond the scope of this court’s tort review,
plaintiff’s claim against SRS for negligence concerning the placement of
N.C. are dismissed.

          Earle’s claims for relief for his mother’s physical abuse

        Earle’s remaining claims against SRS concern their failure to
prevent physical abuse by his mother. From the evidence, Earle’s claims
satisfy the initial problems of sovereign immunity in that they appear to
trigger the same duty of care that N.C.’s abuse trigger through 33 V.S.A. §
4915. But once more Earle’s claims raise the twin issues of private analog
and discretionary function exception.
        From roughly 1978 until Earle’s removal in 1994, SRS worked with
Earle’s mother through a plan of assistance to develop her parenting skills
and prevent her abusive outbursts. As with N.C., SRS monitored the family
through a social worker and provided intermittent therapy to Earle’s mother
as well as Earle to help them deal with various issues. Earle’s claim in this
respect is not that SRS failed to act, but that its failure to remove him from
his mother earlier proximately caused him to suffer further injuries at her
hands.9 Again, the problem is not that SRS did not act, as a private actor
could, to provide relief or some assistance, but rather that it did not provide
enough and did not remove him from his home soon enough. Under the
test, there simply is no analogous private right of action to SRS’s negligent
failure to remove Earle from his home sooner. LaShay, 160 Vt. at 69.

       This leaves the claims that SRS should have responded more
aggressively, which falls under the discretionary function exception. As
with N.C., SRS’s actions toward Earle and his mother reflect discretionary
judgments wrought with policy considerations—such as the child’s safety
and the preservation of the home. It would be improper for tort law to
invade this discretionary area and subject what are SRS judgments made
over time to the Monday morning objectivity of tort law. For this reason,
Earle’s remaining claims for summary judgment based on his mother’s
abuse are denied.



       9
         It is also unclear what kind of physical injuries Earle suffered through his
mother. Earle has presented evidence that he has recovered memories of beatings
and being hit with a billy club, but he did not present any evidence, aside from
cumulative psychological damage, of their severity or frequency. It is also
unclear from Earle’s evidence how much SRS was aware of these incidents.
                             Motion for Default

       Finally, Earle seeks default judgment and sanctions against the state
for not filing a second amended answer to his second amended complaint.
This defect has been at least partially cured by the state’s filing of a second
amended answer. The question is whether this answer is permissible under
V.R.C.P. 15. Earle argues that the answer should be disallowed because
Rule 15(a) only gives a party 10 days to plead in response to an amended
pleading. The state argues that the Rule 15(a) clock has not begun because
Earle has not “served” the second amended pleading since receiving leave
to do so from the court. This contention would seem to be disputed by the
Vermont Supreme Court’s analysis of a similar situation in Sweet v. Roy.
173 Vt. 418, 429–30 (2002). In that case, the Court rejected an appeal
based on a party’s failure to separately serve an amended complaint after
receiving leave to amend it where the motion to amend contained the
amended pages of the complaint. Id. The Court rejected this argument as
“a technical rule that elevates form over substance.” Id. at 430.

        At the same time, Earle’s argument rings hollow within the context
of the situation at hand. Regardless of the nature of Earle’s motion, the
State is essentially seeking to amend its pleadings to conform to Earle’s
new factual allegations and claims. The Rules of Civil Procedure and the
common law encourage liberality in this area where there is no prejudice to
the other party. Bevins v. King, 143 Vt. 252, 254–55 (1983) (“When there
is no prejudice to the objecting party, and when the proposed amendment is
not obviously frivolous nor made as a dilatory maneuver in bad faith, it is
an abuse of discretion to deny the motion.”). Earle has made no showing of
prejudice and has only argued for a technical application of Rule 15(a)’s
deadlines. Indeed, the State’s opposition should come as no surprise to
Earle considering its previous, vigorous response to his earlier claims.
From the record it appears that the parties have conducted discovery and
filed motions consistent with a trial on the merits of the old as well as the
new claims. Furthermore, these new facts do not substantively raise new
claims as they are extensions of his prior two complaints. As both parties
have been actively litigating these claims and have prepared to bring them
to trial, granting a default judgment on these facts, now, would avoid the
substantive legal arguments raised by both sides, and rob the court of the
opportunity to adjudicate these claims on the merits. V.R.C.P. 1. In other
words, it would be a technical victory over substantive law.

       Rule 15(a) allows a party to respond to an amended pleading either
10 days after service of the amended pleading; within the time remaining to
respond [under Rule 12]; or as the court otherwise orders. In this case, the
court will allow the State’s second amended answer to be entered and deny
Earle’s motion for default.

       Based on the foregoing, defendant State of Vermont’s motion for
judgment is granted. Plaintiff’s motion for default judgment and sanctions
is denied.

       Dated at Burlington, Vermont________________, 2004.




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