Kuligoski v. Brattleboro Retreat, No. 47-2-14 Wmcv (Wesley, J., Sep. 28, 2014).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]



                                                     STATE OF VERMONT
SUPERIOR COURT                                                                                                  CIVIL DIVISION
Windham Unit                                                                                          Docket No. 47-2-14 Wmcv

                                  Kuligoski et al vs. Brattleboro Retreat et al

                                             ENTRY REGARDING MOTION



Title:                Motion to Dismiss as to Brattleboro Retreat ONL (Motion 1)
Filer:                Brattleboro Retreat
Attorney:             Ritchie E. Berger
Filed Date:           April 3, 2014

Response filed on 04/22/2014 by Attorney Richard T. Cassidy for Plaintiff James Kuligoski
Response filed on 05/08/2014 by Attorney Ritchie E. Berger for Defendant Brattleboro Retreat

Title:                Motion to Dismiss (Motion 2)
Filer:                Northeast Kingdom Human Services
Attorney:             Stephen J. Soule
Filed Date:           April 11, 2014

Response filed on 04/29/2014 by Attorney Richard T. Cassidy for Plaintiff James Kuligoski
Response filed on 05/15/2014 by Attorney Stephen J. Soule for Defendant Northeast Kingdom
Human Services
Response filed on 05/19/2014 by Attorney Stephen J. Soule for Defendant Northeast Kingdom
Human Services

The motions are GRANTED.

                                                   Opinion & Order
                                      Granting Each Defendant’s Motion to Dismiss

Factual Background

        Plaintiffs sue Defendants for negligent mental health treatment of E.R., and for failure to
warn as to the likelihood that E.R. posed a danger due to his untreated condition. After being
discharged from care at the Brattleboro Retreat, and while under out-patient treatment by staff
at Northeast Kingdom Human Services, E.R. assaulted Plaintiff Michael Kuligoski. Kuligoski was
severely and permanently injured, and will require ongoing medical attention and supportive
assistance for the rest of his life. E.R. suffers from schizophreniform disorder and had wandered
away from his family when he encountered Kuligoski, whom he did not know. E.R. hit Kuligoski
with a pipe wrench, strangled and attempted to drown him.

         Plaintiffs’ suit against the Brattleboro Retreat and Northeast Kingdom Human Services
challenges their treatment of E.R. Plaintiffs sue the Brattleboro Retreat for negligent discharge
(Count I), failure to warn (Count II), failure to train (Count III), and negligent undertaking (Count
IV). Plaintiffs sue Northeast Kingdom for failure to warn (Count V), failure to treat (Count VI),
and negligent undertaking (Count VII). Plaintiffs have filed a separate suit against E.R. and his
family in Caledonia County, which is in the early stage of pre-trial development.

        According to the complaint, the Central Vermont Medical Center admitted E.R. on
October 9, 2010. At the time of admission, or shortly thereafter, E.R. threatened a mental
health worker, made threatening statements about assaulting his sister’s boyfriend, reported
auditory hallucinations, and was noted to be easily agitated with fair-to-poor insight. On
October 12, 2010, a physician tentatively diagnosed E.R. with schizophreniform disorder.1 On
October 15, 2010, CVMC completed paperwork for involuntary commitment, stating that E.R.
was mentally ill and posed a danger to himself or others. After assaultive behavior toward
staff, and further threatening and homicidal ideation expressed to his physician, E.R. was placed
in five-point restraints and transferred on October 16, 2010 from CVMC to the Vermont State
Hospital. The admitting physician at VSH concluded that he was clearly a danger to others,
including members of his family. While at VSH, E.R. was administered anti-psychotic and anti-
anxiety medications. That same day, VSH transferred E.R. to the Brattleboro Retreat.

        E.R. remained a patient at the Brattleboro Retreat from October 16, 2010 until
November 12, 2010.2 The Retreat determined E.R. likely suffered from schizophreniform
disorder and noted E.R. indicated homicidal and suicidal tendencies. E.R. expressed a desire to
harm staff. He threw a telephone, acted in menacing fashion, and was reported to be grossly
psychotic and lacking insight or judgment over the course of most of his stay at the Retreat. The
Retreat also noted E.R. was at risk for not taking his medications if discharged. E.R.’s treating
physician, Dr. Rowland, noted gradual improvement, but also continued to make notations in
E.R.’s chart that he was at high risk of decompensation if discharged. The Retreat designed an
aftercare treatment plan for E.R. in early November, and discussed the plan with E.R.’s parents.
The plan contemplated outpatient care for E.R. by Northeast Kingdom Human Services. On the
day of E.R.’s discharge, November 12, E.R. acknowledged hearing voices commanding him to
“do this, do that”. He said the most extreme thing the voices told him to do was “to kill

1
  Schizophreniform disorder is similar to schizophrenia but considered a less severe disorder . See Am. Psychiatric
Ass’n, Diagnostic and Statistical Manual of Mental Disorders 290 (4th ed. 1994). Diagnosis for schizophreniform
disorder requires the patient to suffer from hallucinations for at least one month, but less than six months. See id.
Additionally, the schizophreniform patients may lack impairment for social or occupational functions. See id.
2
  The complaint is not explicit whether E.R. remained at the Retreat voluntarily, or under the compulsion of the
initial application for emergency examination provided for by 18 V.S.A. § 7504, in which case proceedings for
involuntary treatment would have been commenced as provided in § 7612, after the emergency examination
required by § 7508. By their memorandum in opposition, Plaintiffs relate that subsequent investigation discloses
that a petition for E.R.s involuntary treatment was dismissed on Dec. 7, 2010. As discussed below, the distinction
between voluntary and involuntary treatment has little effect on the analysis of each Defendant’s duty; even
assuming E.R. was initially admitted to the Retreat as an involuntary patient for emergency examination, and
remained an involuntary patient until his discharge, neither Defendant was under any legal duty with respect to
anticipating and preventing the injuries suffered by Plaintiff.
                                                          2
myself.”3 In a progress note on that day, Dr. Rowland acknowledged that E.R. had refused
medications which seemed to lead to an increase in his hearing voices. Dr. Rowland’s discharge
summary referenced the belief by E.R.’s parents that his psychotic disorder was related to
having broken up with his girlfriend in 2009, or perhaps related to a prior episode of
mononucleosis which might explain some of his symptoms. Upon his discharge from the
Retreat, E.R. was prescribed medications to be taken on a daily basis, although the Retreat
understood that patients with psychotic disorders sometimes resist taking medication.

        On December 1, 2010, after his discharge from the Retreat, E.R. met with
representatives of NKHS to discuss his treatment plan. After completing his assessment, a
member of E.R.’s treatment team from NKHS found him to be at high risk for emotional,
behavioral, or cognitive complications due to the recent diagnosis of a psychotic disorder,
about which E.R. had minimal insight. In mid-December, E.R. told his mother he had stopped
taking his medications. E.R.’s mother called NKHS to give notice that E.R. had stopped taking
his medications. NKHS did not take any action to attempt contact with E.R., indicating instead
that E.R. must decide whether to take care of himself, including what mental health treatment
he was willing to accept. E.R. had no contact with anyone from NKHS between mid-December
2010 and March 2011.

        On February 26, 2011, E.R.’s father took E.R. to an apartment building in St. Johnsbury.
Plaintiff Michael Kuligoski was at the apartment building to work on a furnace. E.R. wandered
away from his father and assaulted Kuligoski, causing the injuries that are the subject of this
suit.

Procedural History

        On April 3, 2014, the Brattleboro Retreat moved to dismiss for lack of duty, and lack of
proximate cause, based on the facts stated in the complaint. On April 11, 2014, Northeast
Kingdom moved to dismiss on the same basis. On April 22, 2014, Plaintiffs opposed the
Brattleboro Retreat’s motion to dismiss. On April 29, 2014, Plaintiffs opposed Northeast
Kingdom’s motion to dismiss. On May 8, 2014, the Brattleboro Retreat responded to the
opposition. On May 15, 2014, Northeast Kingdom responded to opposition. On May 12, 2014,
Plaintiffs requested oral argument on the motions to dismiss.

       The Court held a hearing on the motions to dismiss on August 26, 2014. Attorney
Richard Cassidy represented Plaintiff. Attorney Ritchie Berger represented the Brattleboro
Retreat. Attorney Stephen Soule represented the Northeast Kingdom. The Court heard oral
arguments on the motions, and took the matter under advisement.




3
 By their reply memorandum, the Retreat vigorously disputes the accuracy of the complaint in this regard,
representing that full resort to the medical record would demonstrate that E.R. was describing an incident that
happened six weeks previously, and that he disclaimed any present sense of compulsion with respect to the
“voices”, or any intention to harm himself or others. For purposes of this opinion, the Court must accept the
allegations in the complaint as true, nonetheless. Richards v. Town of Norwich, 169 Vt. 44, 48-49 (1999).
                                                        3
Standard of Review

        The Court disfavors and rarely grants motions to dismiss. See Bock v. Gold, 2008 VT
81, ¶ 4, 184 Vt. 575. The Court uses motions to dismiss to evaluate the law in a pleading.
Powers v. Office of Child Support, 173 Vt. 390, 395 (2002). Accordingly, the Court will only grant
a motion to dismiss when there are “no facts or circumstances, consistent with the complaint
that would entitle Plaintiff to relief.” Bock, 2008 VT 81, ¶ 4.

Discussion

Duty to Warn/ Duty to Train

        The Vermont Supreme Court clarified the duty to warn arising from mental health
treatment in Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 66–67 (1985). In
Peck, the parents of a patient sued a counseling service for negligence. Id. at 63. The patient
expressed a desire to harm his father by burning down his father’s barn. Id. at 63–64. The
therapist did not warn the patient’s parents of the threat and one week later the patient
burned down the barn. Id. The parents brought suit for failure to warn. Id. at 64.

        The Supreme Court determined mental health professionals have a duty to warn where
a patient makes a threat against an identifiable victim. Id. at 66–67. The Court first noted, there
is generally no duty to control the conduct of another person to prevent harm to a third party.
Id. at 64–65 (citing Restatement (Second) of Torts § 315). However, a therapist has a special
relationship with a patient that requires the therapist to exercise reasonable care to prevent
harm to third parties. Id. at 65 (quoting Tarasoff v. Regents of the Univ. of Cal., 551 P.2d 334,
343 (Cal. 1976)). The Supreme Court extended Tarasoff’s reasoning to hold:

       Once a therapist determines, or, based on the standards of the mental health
       professional community, should have determined that his or her patient poses a
       serious risk of danger to another, then he or she has the duty to take whatever
       steps are reasonably necessary to protect the foreseeable victim of that danger.

Id. at 66–67. Significantly, because the patient had made specific threats to harm identified
persons, the Court found it reasonable and necessary that the therapist should take measures
to warn the parents under those circumstances, notwithstanding the expectation of
confidentiality associated with the therapist-patient relationship. See id. at 67.

       Thus, we hold 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.

See id. at 68 (emphasis supplied).

        Cases interpreting Peck have emphasized that the duty to warn arises only when
triggered by risk of danger to an identifiable victim. See Barrett v. Prison Health Servs., Inc., No.
5:08-CV-203, 2010 WL 2837010 (D. Vt. July 19, 2010)(Reiss, J.); Baker v. Univ. of Vt., No. 233-10-
                                                  4
03 Oscv, 2005 WL 6280644 (Vt. Super. Ct. May 4, 2005) (Morris, J.); see also George A. Michak,
Developments in Vermont Law: Standard of Care, Duty, and Causation in Failure to Warn
Actions against Mental Health Professionals, 11 Vt. L. Rev. 343, 350–51 (1986) (discussing
ambiguities left by Peck). In Barrett, a correctional officer sued the company responsible for
prison health care for failing to warn or protect against an attack from a mentally ill inmate. See
2010 WL 2837010 at *1–2, *5. Judge Reiss interpreted Peck as holding that a mental health
professional must know of threats against an identifiable victim to trigger the duty to warn. Id.
at *8. The court also observed that its reading of Peck to require an identifiable victim was
consistent with the law in other jurisdictions. Id. Judge Morris came to a similar conclusion. See
Baker, 2005 WL 6280644 fn. 8 (“It is logical and reasonable to extend a duty to control and/or
warn in a therapeutic relationship where there is a specific, current knowledge base as to a
patient's status and specifically identifiable risks . . . . ”).

        Under the facts plead here, the Court must dismiss the claims for failure to warn. By its
explicit holding, Peck requires an identifiable victim, in the absence of which no duty to warn is
generated. See 146 Vt. at 66–67; see also Barrett, 2010 WL 2837010 at *8 (interpreting Peck to
require an identifiable victim). Judge Reiss acknowledged cases that would support recognition
of a duty without proof of a particularized threat to one or more specific individuals, but her
ruling was constrained by Vermont law, and she found Peck incompatible with cases with
broader holdings decided elsewhere.4 In some cases, determining whether a victim was
identifiable conceivably may require a fact determination. See Barrett, 2010 WL 2837010 at *9.
A therapist may need to make reasonable inquiry to determine the identity of a threatened
person. See id. Nevertheless, given the facts alleged here, it is undisputed that Plaintiff Kuligoski
was not an identifiable victim considering any information known or knowable by either the
Retreat or Northeast Kingdom. Instead, Kuligoski was a member of the public indistinguishable
from any other with respect to the foreseeability of his eventual encounter with E.R. Neither
the Brattleboro Retreat nor Northeast Kingdom had a duty to warn the public at large of the
risks posed by E.R.

        Indeed, recognizing the impossibility that either Defendant could have identified the
danger to Kuligoski in order to warn him, Plaintiffs do not couch their duty to warn claim in
those terms. Rather, Plaintiffs insist Defendants should have warned E.R.’s family of the risks
he posed to them and others. Yet, this departure from the particular circumstances
undergirding Peck only serves to highlight the limitations of the ruling. Peck acknowledged that
it was creating a duty to protect another from harms posed by third persons previously


4
  As noted in Barrett , Peck’s requirement of an identifiable victim is consistent with a majority of courts ; see, e.g.
Fraser v. United States, 674 A.2d 811, 815 (Conn.1996) (“our decisions defining negligence do not impose a duty to
those who are not identifiable victims”); Bradley v. Ray, 904 S.W.2d 302, 312 (Mo.Ct.App.1995) (holding that when
health care professional knows that patient presents serious danger of violence to readily identifiable victim, that
professional has duty under common law to warn the intended victim or communicate the existence of the danger
to appropriate authorities); Thompson v. Cnty. of Alameda, 614 P.2d 728, 735 (Cal.1980) (“[W]e nonetheless
conclude that public entities . . . have no affirmative duty to warn of the release of an inmate with a violent history
who has made nonspecific threats of harm directed at nonspecific victims.”); Glanda v. Tweny Pack Mgmt. Corp.,
2008 WL 4445257, at * 3 (E.D.Mich. Sept. 29, 2008) (“In the context of special relationships, courts have
established a duty of reasonable care toward only those parties who are readily identifiable as being foreseeably
endangered.”).

                                                           5
unrecognized at common law in Vermont. Id. at 64-65; see also Edson v. Barre Supervisory
Union No. 61, 2007 VT 62, ¶ 13, 182 Vt. 157 (discussing that generally crimes committed by
third parties are unforeseeable and cannot form the basis for liability). Beyond that, Peck
recognized that it was creating a duty in derogation of, and in tension with, the expectations of
confidentiality in the therapist-patient relationship. 146 Vt. at 67-68. The duty for which
Plaintiff now seeks recognition is so expansive compared to the Peck formulation that it should
not fall to a trial court to predict, that under the circumstances here, the Vermont Supreme
Court will re-balance the limits Peck established, as regards protecting others from third party
harm, or as regards the erosion of confidentiality in therapeutic relationships. Such expansion
would appear particularly doubtful here, since even assuming E.R.’s family had been warned of
his potential for violent decompensation, it is entirely speculative that such warning would have
prevented the encounter between E.R. and Plaintiff Kuligoski.

        Accordingly, the Court dismisses Plaintiffs’ claims for failure to warn in Count II and
Count V. The Court also dismisses Plaintiffs’ claims for failure to train in Count III. Plaintiffs claim
that Brattleboro Retreat failed to train E.R.’s parents to prevent E.R. from harming others. The
claim is an extension of the claimed failure of the duty to warn. If, as the Court concludes,
Brattleboro Retreat had no duty to warn, it also could not be charged with the even more
attenuated duty of demonstrating to E.R.’s family how to heed the warning.

Duty to Treat

       The Court must next consider the viability of Plaintiffs’ claims for negligent treatment.
As to each Defendant, these have been cast in terms of an affirmative obligation to insist on
administering treatment that the complaint acknowledges E.R. was unwilling to accept. 5

        Vermont law has not addressed the ability of a third-party to sue for a defendant’s
claimed negligence in treating a patient who later harms the victim. Nevertheless, some courts
allow such claims based on a duty to control. See Leonard v. State, 491 N.W.2d 508, 511 (Iowa
1992) (describing the split between states); see also Patricia C. Kussmann, Civil Liability of
Psychiatrist Arising out of Patient's Violent Conduct Resulting in Injury to or Death of Patient or
Third Party Allegedly Caused in Whole or Part by Mental Disorder, 80 A.L.R.6th 469, §§ 34–47
(discussing different approaches to the duty to control patients).

        The Restatement of Torts purports to address the duties of mental health professionals
in such circumstances. See Restatement (Third) of Torts: Phys. & Emot. Harm § 41. “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.” Id. § 41(a). A
mental-health professional has a special relationship with a patient. Id. § 41(b). Mental-health
professionals have a duty of “reasonable care under the circumstances.” Id. cmt. g.

       The illustrations provided by the Restatement offer examples as to how section 41
might be applied in various circumstances. Illustration 2 describes a situation in which a

5
  See Complaint at ¶82 describing Plaintiff’s claim that the Retreat had a duty “not to discharge” E.R.; see
Complaint at ¶ 129 describing Plaintiff’s claim that NKHS had a duty “to take immediate and affirmative steps to
treat E.R.” irrespective of his patent disinterest in voluntarily accepting such treatment.
                                                        6
therapist knows a patient suffers from mild depression but the patient has not indicated a
desire to commit violence. If the patient later attacks his parents, the therapist is not liable
because he had no reason to expect the violent outburst. On the other hand, illustration 5
depicts a situation suggesting liability when a therapist ignores dangers reasonably associated
with the behavior of a schizophrenic patient. Where the patient calls the therapist, indicates he
has not taken his medication, requests an immediate meeting, and indicates he will harm
pedestrians if provoked, the therapist must take action reasonably calculated to address the
foreseeable danger to others.

        The Supreme Court of Rhode Island considered a similar set of issues, analyzing the
Restatement’s suggestion of duty in the context of particular circumstances. See Santana v.
Rainbow Cleaners, Inc., 969 A.2d 653, 658 (R.I. 2009). In Santana, a patient attacked an
employee at a drycleaners and caused severe brain injuries. Id. at 655. The patient had received
years of outpatient care from a community treatment facility, but stopped attending treatment
sessions approximately four months before the attack. Id. at 655–56. The victim brought suit
against the mental health center for negligently failing to supervise or hospitalize the patient.
Id. at 656. The mental health center moved for summary judgment on lack of legal duty. Id. at
657.

        The Santana court granted summary judgment based on the absence of duty. A party
who claims negligence must first show the defendant had a duty to the plaintiff. Id. at 658.
There is no duty to control the conduct of a third-party unless a special relationship exists. See
id. A mental health professional may seek to have a patient committed involuntarily, but the
decision is discretionary. Id. at 661. The court then applied a multi-factor test to determine if a
duty existed. Id. at 664–65. The test weighed the relationship between the patient and the
therapist, the foreseeability of the harm, the burden liability would impose on defendant, and
the public policy considerations. Id. The court reasoned a voluntary outpatient treatment
relationship was not a sufficiently strong relationship to establish a duty of intervention to
control the patient’s behavior in the situation present. Id. at 665. The foreseeability of the harm
was low because there was no evidence the patient could have been involuntarily committed.
Id. at 666. Imposing a duty on health care providers to seek involuntary commitment of their
patients as a measure of protecting the public was in unsupportable tension with Rhode
Island’s policy of keeping mentally ill patients in the least restrictive environment possible, a
policy grounded in constitutional recognition of the civil rights of the patient. Id. at 666–67.
Therefore, the liberty interests of mentally-ill patients weighed against finding a duty. Id. at
667.

        In contrast, there is some authority for recognizing a possible cause of action against a
therapist for negligently treating a mentally-ill patient, even when the particular victim was not
identifiable as a result of the provider-patient relationship. See Rivera v. N.Y.C. Health & Hosps.
Corp., 191 F. Supp.2d 412, 418 (S.D.N.Y. 2002). In Rivera, a mental health patient pushed the
plaintiff in front of an oncoming train. Id. at 415. The plaintiff sued the patient’s therapist for
negligent treatment. Id. The therapist moved to dismiss on the theory that health care
providers “owe no duty of care to the general public arising from the care of an outpatient who
is receiving treatment on a voluntary basis.” Id. at 417. The court declined to impose any bright-
line rule, concluding that under certain circumstances mental health professionals may owe a
duty to members of the public at large. Id. The court concluded that therapists have a special
                                                   7
duty to look after the health of their patients, and that those obligations may extend to others
including the general public. Id. The court denied the motion to dismiss because the existence
of a duty, even to the general public, was highly fact-specific. Id. at 425. The court declined to
hold as a matter of law that it could not arise under the facts as plead. Id. at 421–22.

         In this case, Defendants had no duty to treat E.R. in a manner so as to afford protection
to Plaintiff. The Restatement suggests a therapist may have liability where the therapist knows
of an imminent threat to a defined group of people. See Restatement (Third) of Torts: Phys. &
Emot. Harm § 41, ill. 2, 5. Even assuming each Defendant had sufficient information to know of
E.R.’s potentially violent tendencies, neither could predict when or under what circumstances
E.R. would become generally dangerous, and the foreseeability of his particular danger to
Michael Kuligoski was non-existent. Almost three months passed between the last time
personnel at NKHS saw E.R. and his assault on Mr. Kuligoski. Plaintiffs do not allege E.R.
committed other assaults during that time, much less that NKHS knew of any assaultive or
threatening behavior by him in the intervening period. The Retreat is further removed from
being implicated in the assault because of the even longer passage of time since its discharge of
E.R., as well as by the intervening involvement of NKHS in his treatment. The claim that
Defendants could have exercised reasonable care that would have prevented an eventual injury
to an unknown person months after E.R. terminated treatment, stretches the concept of
common-law duty to act reasonably to prevent harm beyond any recognized bounds.6

        The analysis in Santana is persuasive, and compels a similar result here. See 969 A.2d at
664–67. As in Santana, E.R. injured the victim months after his last outpatient visit (and another
month beyond his discharge from inpatient care at the Retreat). See id. at 655–56. By the time
of the assault, E.R.’s relationship with each Defendant was attenuated by a period of no
contact. Moreover, there was never an adjudication resulting in an order of involuntary
hospitalization for E.R. at the Retreat, or an order on non-hospitalization with respect to any
treatment that might have been compelled through NKHS. Although CVMC commenced the
process for an involuntary commitment in October of 2010, the complaint does not establish
any judicial involvement before E.R.’s discharge on November 12. That discharge would have
resulted in the dismissal of involuntary hospitalization proceedings if they had not already been
discontinued. It is entirely speculative whether a court would have granted an order of
involuntary hospitalization, or an order of non-hospitalization requiring compulsory treatment,
had those proceedings gone forward. It is entirely speculative whether NKHS had sufficient
evidence to pursue another application for involuntary treatment in December, or whether
such a petition would have been granted. In addition, while capable of initiating proceedings
for involuntary treatment, neither Defendant was capable of controlling the eventual
prosecution of any such petition, an exercise of discretion vested solely with the State’s
Attorney’s Office or the Office of the Attorney General. See, 18 V.S.A.§ 7616. Finally, like Rhode
Island, Vermont has a policy of keeping mentally-ill persons in the least restrictive environment
possible. See 18 V.S.A. § 7617(c) (requiring the court to consider alternatives to hospitalization);

6
  The Restatement illustrations suggesting the possibility of imposing liability for harm to members of the public
unidentified until the onset of injury are quite circumscribed. See Restatement (Third) of Torts: Phys. & Emot.
Harm § 41, ill. 5. Illustration 5 suggests the therapist would be liable to harm to a member of the public where the
patient threatens the pedestrians he regularly encounters, and the circumstances make it apparent that the threat is
imminent. See id.. By contrast, Plaintiffs’ case here turns on a danger of harm that was speculative at the time of
treatment, occurred months later, and resulted in injury to a victim who was not identifiable.
                                                          8
see also In re B.L., 163 Vt. 168 (state must show by clear and convincing evidence that voluntary
treatment is not feasible before court may enter an order of involuntary treatment).

         In short, the duty Plaintiff postulates – that each Defendant was required to impose
involuntary treatment on E.R. – is a duty neither could possibly sustain under the imperatives
limiting proceedings for securing judicial orders for such treatment. As explained by Santana,
the recognition of such a duty would significantly impact the orderly consideration of mental
health proceedings, if the specter of common-law liability becomes implicated in each decision
to discharge a patient who might arguably be subject to a petition for involuntary treatment. 7
By the same token, the recognition of such a duty would predictably require a trial within a trial
to prove any claim for breach of duty, since liability and proximate cause could not be linked
without proof by clear and convincing evidence that an order for involuntary treatment would
have issued. As the Court concludes below, consideration of such far-reaching consequences of
a further and drastic expansion of common law duty to prevent harm to third persons must
properly be left for legislative determination.8

        In conclusion, the Court dismisses Plaintiffs’ claims relating to Defendants’ failure to
treat E.R. because Defendants owed no duty to Plaintiffs.9 Defendants cannot be liable to
Plaintiffs for negligent discharge, failure to treat, and negligent undertaking without a duty to
Plaintiffs. Plaintiffs’ claims compel harkening back to the concerns that troubled the dissenters
in Peck.



7
  See, also, Leonard v. State, 491 N.W.2d 508, 512 (Iowa, 1992), in which the court found “a psychiatrist owes no
duty of care to an individual member of the general public for decisions regarding the treatment and release of
mentally ill persons from confinement.” The Court observed:
           [Decisions] in the realm of mental commitment rest not only on medical judgments but on
           societal judgments about a community’s tolerance for the sometimes deviant behavior of
           mentally ill persons. It is not only the customary procedure, but the constitutionally and
           statutorily mandated requirement, to treat even seriously mentally impaired persons in the least
           restrictive environment medically possible. Such a decision necessarily requires the psychiatrist
           to forecast the patient’s likely behavior towards others upon release. We are convinced that if
           that prognosis were subject to second-guessing by any member of the public who might later be
           injured by the patient, it could severely chill the physician’s capacity for decision making and
           ultimately threaten the integrity of our civil commitment system.
Id.
8
  The Court is not persuaded by the reasoning of Rivera, see 191 F.Supp.2d at 421–22. The holding rejects any
analytic framework for pleading facts sufficient to establish a duty in an area where prior caselaw, and statutory
concerns for confidentiality and the treatment of mentally ill patients, have always established such limits. Peck is
the best indicator that such limits will continue to be recognized in Vermont jurisprudence. The open-ended
assessment of duty endorsed by Rivera is so at odds with the very limited departure from prior common law
principles represented by Peck, see 146 Vt. at 66–67, that it appears highly improbable that our Supreme Court
would follow the Rivera rationale.
9
  Plaintiffs’ claims for negligent undertaking fare no better. Plaintiff notes a party who takes on an undertaking may
be liable to third parties if the third-party is harmed by the actor’s negligence. See Restatement (Second) of Torts §
324A (adopted by Derosia v. Liberty Mut. Ins. Co., 155 Vt. 178 (1990)); see also Barrett, 2010 WL 2837010, *10
(applying section 324A in the context of an assault by a mentally-ill patient). Although Vermont recognizes the tort
of negligent undertaking, the plaintiff must be able to show the defendant had a duty to the plaintiff. As explained
above, nothing suggests Defendants had a duty to the public at large to treat E.R. in a manner that would prevent
him from harming Plaintiffs.

                                                          9
       The issues here present an important social problem. If the common law
       requirements of the duty to warn, the foreseeability of harm, and ability to
       control are not warranted or necessary, that is for the legislature to decide.
       Likewise, the express statutory prohibition for disclosure of confidential patient
       information, if that is not warranted or necessary, again, it is for the legislature
       to decide. Otherwise, we will be engaging in flagrant judicial legislation, which
       must be, and should be, left to the legislative branch of government.
146 Vt. at 70.

        Indeed, the Court concludes that Plaintiffs’ claims here 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.

                                               Order

     The Court GRANTS Defendant Brattleboro Retreat’s Motion to Dismiss. The Court
GRANTS Northeast Kingdom Human Services’ Motion to Dismiss.

Electronically signed on September 28, 2014 at 08:23 AM pursuant to V.R.E.F. 7(d).


______________________________________
John P. Wesley
Superior Court Judge


Notifications:
Richard T. Cassidy (ERN 3673), Attorney for Plaintiff Carole Kuligoski
Richard T. Cassidy (ERN 3673), Attorney for Plaintiff Mark Kuligoski
Richard T. Cassidy (ERN 3673), Attorney for Plaintiff James Kuligoski
Ritchie E. Berger (ERN 2871), Attorney for Defendant Brattleboro Retreat
Stephen J. Soule (ERN 3226), Attorney for Defendant Northeast Kingdom Human Services
James W. Spink (ERN 2194), Attorney for Interested Person John A. Rapoza
James W. Spink (ERN 2194), Attorney for Interested Person Christine M. Rapoza
James W. Spink (ERN 2194), Attorney for Interested Person Evan Rapoza

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