Sorge v. State

• Decision Date: 25 August 2000
• Docket Number: No. 98-573.,98-573.
• Citation: 762 A.2d 816
• Court: Vermont Supreme Court
• Parties: Keith SORGE and Patricia Sorge v. STATE of Vermont.

762 A.2d 816

Keith SORGE and Patricia Sorge v. STATE of Vermont.

No. 98-573.

Supreme Court of Vermont.

August 25, 2000.

Mitchell L. Pearl and Devin McLaughlin of Langrock Sperry & Wool, Middlebury, for Plaintiffs-Appellants.

William H. Sorrell, Attorney General, Montpelier, Susanne R. Young, Assistant Attorney General, Waterbury, and Michael O. Duane, Assistant Attorney General, Montpelier, for Defendant-Appellee.

Present: AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

AMESTOY, C.J.

Plaintiffs Keith and Patricia Sorge appeal a Chittenden Superior Court order dismissing their action against the Department of Social and Rehabilitation Services (SRS) for negligent supervision and control of a minor in its custody. Plaintiffs argue that the court improperly granted the State's V.R.C.P. 12(c) motion on the issue of proximate cause, and that the State is not entitled to judgment on the pleadings on its alternative assertions that it owed no duty of care to plaintiffs or that sovereign immunity protects it from suit. We affirm.

While he delivered bundles of newspapers in Burlington on the morning of November 6, 1994, plaintiff Keith Sorge suffered severe injuries when assaulted by Cole Grant. At the time of the assault, Grant was a minor in SRS custody. Mr. Sorge and his wife Patricia filed suit against the State alleging that SRS was negligent in failing to adequately supervise and control Grant, and that as a result of the State's negligence, Mr. Sorge sustained injuries causing Mrs. Sorge's loss of consortium. Plaintiffs' complaint alleged that SRS was aware that Grant had a history of violent, assaultive and delinquent behavior. On the weekend of the assault, SRS had temporarily placed Grant with his mother. Plaintiffs' complaint alleged that Grant's mother was either unlikely or incapable of adequately supervising him.

The State's V.R.C.P. 12(c) motion for judgment on the pleadings advanced three arguments: (1) the State was immune from suit for the performance of discretionary functions by state employees under 12 V.S.A. § 5601(e)(1); (2) the State owed no duty of care to plaintiffs beyond its duty to the public at large; and (3) the alleged negligence of the State was not, as a matter of law, the proximate cause of plaintiffs' injuries. Assuming for the purpose of deciding the motion that SRS was negligent in placing Grant with his mother, the superior court considered the central issue to be "whether it was foreseeable that Grant would assault someone." The court decided that it was not, and granted the State's motion on the ground that SRS's negligence could not be found to be the proximate cause of Mr. Sorge's injuries. As the court explained:

Even if the allegations contained in Plaintiffs' complaint were proved, Plaintiffs would not be able to make out a prima facie case of negligence because the proximate cause of their injuries was not, as a matter of law, the Department's negligent supervision and placement of Grant Cole. Rather, the direct cause of their injuries was the intervening, independent act of Grant, an act which the Department had no duty to anticipate. Moreover, to conclude that Grant's negligence is transferable to the State would erode the public policy of rehabilitation of juveniles through reunification with their families and the public, and which views preventative detention as a last resort.

When reviewing a V.R.C.P. 12(c) motion for judgment on the pleadings, the issue before the court is whether the movant is entitled to judgment as a matter of law based on the pleadings. See Quesnel v. Town of Middlebury, 167 Vt. 252, 254, 706 A.2d 436, 437 (1997). "If plaintiffs' pleadings contain allegations that, if proved, permit recovery, defendants are not entitled to a dismissal." Id. Because judgment was granted on the pleadings in this case, we accept as true all factual allegations contained in the complaint and all reasonable inferences that can be drawn from those allegations. See Paquette v. Deere & Co., 168 Vt. 258, 258-59, 719 A.2d 410, 411 (1998).

"In a negligence case, neither the issues of proximate cause nor the [sovereign] immunity defenses become germane until it has been established that a defendant owes to a plaintiff a duty of care that has been breached." Fox v. Custis, 236 Va. 69, 372 S.E.2d 373, 375 (1988). Because we conclude that the State did not owe plaintiff a duty of care, we find it unnecessary to address the issues of proximate cause and sovereign immunity. See Rubin v. Town of Poultney, 168 Vt. 624, 625, 721 A.2d 504, 506 (1998) (mem.) ("Absent a duty of care, an action for negligence fails."). Accordingly, we affirm the court's dismissal of plaintiffs' complaint.¹

The existence of a duty is a question of law to be decided by the court. See Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 487, 622 A.2d 495, 499 (1993). In determining whether a governmental body has undertaken a duty of care toward specified persons beyond its duty to the public at large, we consider: (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. See Sabia v. State, 164 Vt. 293, 299, 669 A.2d 1187, 1191 (1995) (Sabia I).

Plaintiffs concede that no statute assigns to the State a specific duty of care with respect to plaintiffs individually, as distinct from the duty the State owes to them as members of the general public. This distinguishes the instant case from Sabia I. In Sabia I, SRS social workers knew of abuse but failed to protect sisters who had been molested by their stepfather despite specific statutory requirements that SRS protect such endangered children. In Sabia I, the existence of a specific statutory duty was critical to our conclusion that SRS had a duty to protect the sisters. Indeed, the opinion emphasized the state social workers' neglect of their "statutory duty to provide assistance to children seeking protection from sexual abuse." Id. at 296, 669 A.2d at 1190.

Subsequent cases have taken notice of the critical role the statutory duty played in our Sabia I decision. See, e.g., Johnson v. State Dep't of Health, 165 Vt. 588, 589, 682 A.2d 961, 963 (1996) (mem.) ("In Sabia[I] we emphasized the first factor [of the four-factor duty of care test], noting that the Department of Social and Rehabilitation Services (SRS) had a statutory mandate to investigate reports of child abuse and render appropriate services and that the stated purpose of the statute was to protect children whose health and welfare may be adversely affected through abuse or neglect.") (internal quotation marks and citations omitted); Sabia v. Neville, 165 Vt. 515, 521, 687 A.2d 469, 473 (1996) (Sabia II) ("In Sabia I, we held that the State of Vermont could be liable `when state social workers neglect their statutory duty to provide assistance to children seeking protection from sexual abuse.' The duty of care was derived mainly from [relevant statutory provisions]. . . .") (citations omitted).

Here, plaintiffs cannot and do not argue that "the relevant statutory provisions create a duty on the part of SRS to assist a particular class of persons to which plaintiffs belong and to prevent the type of harm suffered by plaintiffs." Sabia I, 164 Vt. at 299, 669 A.2d at 1192 (citations omitted). The only specific statutory duty of care SRS owed was to Grant, a minor in its custody, as 33 V.S.A. § 5501 "sets forth mandatory acts for the protection of a particular class of persons" to which Grant belonged. Id. at 299, 669 A.2d at 1190; see 33 V.S.A. § 5501 (listing purposes of child welfare laws).

In this case, plaintiffs allege a breach of duty of care based on the State's failure to control the actions of the juvenile; they did not allege that the State breached a duty of care by failing to warn plaintiff Keith Sorge that he was at risk of being harmed by the juvenile. Generally, there is no duty to control the conduct of another in order to protect a third person from harm. Peck v. Counseling Serv. of Addison County, Inc., 146 Vt. 61, 64-65, 499 A.2d 422, 425 (1985). The Restatement (Second) of Torts § 315 (1965) provides:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.

Plaintiffs contend that an exception arises by virtue of the principle set forth at Restatement (Second) of Torts § 319, entitled "Duty of Those in Charge of Persons Having Dangerous Propensities," which provides:

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

Section 319 describes one of the special relationships giving rise to affirmative duties under § 315. See Sage v. United States, 974 F.Supp. 851, 859 (E.D.Va.1997) (stating that § 319 "details" type of § 315 relationship); Lipari v. Sears, Roebuck & Co., 497 F.Supp. 185, 190 n. 5 (D.Neb.1980) ("The Restatement sections following § 315 present specific examples of special relationships giving rise to an affirmative duty.").

The salient inquiry is, thus, whether a duty of care is owed to plaintiffs by reason of the State's relationship with the juvenile tortfeasor. A breach of the so-called "duty to control" is relevant to a claim of...