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