Kane v. Lamothe

• Citation: 936 A.2d 1303,2007 VT 91
• Decision Date: 24 August 2007
• Docket Number: No. 06-229.,06-229.
• Parties: Joanne KANE v. Trooper Maurice LAMOTHE and the State of Vermont.
• Court: United States State Supreme Court of Vermont

936 A.2d 1303

2007 VT 91

Joanne KANE v. Trooper Maurice LAMOTHE and the State of Vermont.

No. 06-229.

Supreme Court of Vermont.

August 24, 2007.

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.¹

¶ 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, 181 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. §§ 5601-5606, 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.² 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 functions 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 498.³ 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.⁴ 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, 125 S.Ct. 2796, 162 L.Ed.2d 658 (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. §§ 836-844, and lacks the authority of a statute or regulation. Our test of whether a specific duty exists asks "whether a statute sets forth...