Kane v. Lamothe, No. 06-229.

Docket NºNo. 06-229.
Citation936 A.2d 1303, 2007 VT 91
Case DateAugust 24, 2007
CourtUnited 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.

[936 A.2d 1305]

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

936 A.2d 1306

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.

936 A.2d 1307

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

936 A.2d 1308

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...

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30 practice notes
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...he does not demonstrate that his "factual allegations satisfy the necessary elements of a recognized cause of action." Kane v. Lamothe, 2007 VT 91, ¶ 7, 182 Vt. 241, 936 A.2d 1303; cf. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392 (1971) (rejecting "the notion that the Fourth Amendm......
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...he does not demonstrate that his "factual allegations satisfy the necessary elements of a recognized cause of action." Kane v. Lamothe, 2007 VT 91, ¶ 7, 182 Vt. 241, 936 A.2d 1303; cf. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392 (1971) (rejecting "the notion that the Fourth Amendm......
  • Burwell v. Peyton, Case No. 5:12–cv–166.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • September 14, 2015
    ...investigate a reported incident of domestic abuse against plaintiff that continued after the trooper left the scene." Kane v. Lamothe, 2007 VT 91, ¶ 1, 182 Vt. 241, 243, 936 A.2d 1303, 1305. Explaining that a governmental actor takes on "a special duty of care to a specific person beyond th......
  • Zullo v. State, No. 17-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...he does not demonstrate that his "factual allegations satisfy the necessary elements of a recognized cause of action." Kane v. Lamothe, 2007 VT 91, ¶ 7, 182 Vt. 241, 936 A.2d 1303 ; cf. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (rejecting "t......
  • Request a trial to view additional results
30 cases
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...he does not demonstrate that his "factual allegations satisfy the necessary elements of a recognized cause of action." Kane v. Lamothe, 2007 VT 91, ¶ 7, 182 Vt. 241, 936 A.2d 1303; cf. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392 (1971) (rejecting "the notion that the Fourth Amendm......
  • Zullo v. State, No. 2017-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...he does not demonstrate that his "factual allegations satisfy the necessary elements of a recognized cause of action." Kane v. Lamothe, 2007 VT 91, ¶ 7, 182 Vt. 241, 936 A.2d 1303; cf. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392 (1971) (rejecting "the notion that the Fourth Amendm......
  • Burwell v. Peyton, Case No. 5:12–cv–166.
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • September 14, 2015
    ...investigate a reported incident of domestic abuse against plaintiff that continued after the trooper left the scene." Kane v. Lamothe, 2007 VT 91, ¶ 1, 182 Vt. 241, 243, 936 A.2d 1303, 1305. Explaining that a governmental actor takes on "a special duty of care to a specific person beyond th......
  • Zullo v. State, No. 17-284
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 4, 2019
    ...he does not demonstrate that his "factual allegations satisfy the necessary elements of a recognized cause of action." Kane v. Lamothe, 2007 VT 91, ¶ 7, 182 Vt. 241, 936 A.2d 1303 ; cf. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 392, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (rejecting "t......
  • Request a trial to view additional results

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