Estate of Sumner

ENTRY_ORDER.93-170; 162 Vt. 628; 649 A.2d 1034

 [Filed:  29-Sep-1994]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 93-170

                             FEBRUARY TERM, 1994


 Estate of Crystal Lee Sumner      }          APPEALED FROM:
                                   }
                                   }
      v.                           }          Addison Superior Court
                                   }
                                   }
 Vermont Department of Social      }
 and Rehabilitation Services       }
                                   }          DOCKET NO. S158-90Ac


              In the above entitled cause the Clerk will enter:

      Plaintiff, the administrator of the estate of a young girl who was
 sexually assaulted and murdered by her cousin while he was in the legal
 custody of defendant Department of Social and Rehabilitation Services,
 appeals from a superior court order granting summary judgment to defendant
 in plaintiff's negligence action against the Department.  On appeal,
 plaintiff challenges the court's rulings that: (1) its claim is barred by
 sovereign immunity, (2) the Department owed no duty of care to the decedent,
 and (3) even if such a duty did exist, the breach of the alleged duty was
 not the proximate cause of the decedent's injuries.  We affirm.

      In early 1988, thirteen-year-old Steven Buelow was found to be a "child
 in need of care or supervision," pursuant to 33 V.S.A. { 5502(a)(12)(C),
 based on an incident in which he refused to return home following an
 argument and subsequent altercation with his mother and stepfather.  By the
 time of the disposition hearing, Steven had returned home pursuant to a plan
 of reunification.  In its March 1988 disposition order, the juvenile court
 ordered that Steven be placed at home with his mother and stepfather, that
 his parent's retain legal guardianship, but that the Department assume legal
 custody of the boy.  In the last week of July 1988, Steven's parents moved
 from their home, and Steven went to live at the home of his step-father's
 sister, the mother of the decedent.  On August 2, 1988, Steven sexually
 assaulted and murdered his seven-year-old cousin, Crystal Sumner.

      Plaintiff's suit alleged that the Department was negligent in its
 supervision and placement of Steven and that it failed to exercise the duty
 of care it had to decedent and others with whom the Department knew or
 should have known that Steven was living.  In support of its claims,
 plaintiff alleged that the Department was made aware of problems with
 Steven's 2behavior, but did nothing to address those problems.  In addition,
 plaintiff alleged that the Department did nothing to seek a different
 placement even though it knew that Steven was unable to live with his mother
 because she had moved in with a relative who would not allow him to live

 

 there.  Plaintiff claims that the Department should have sought modification
 of the juvenile court order when it became aware that the placement had
 failed.

      In July 1991, the superior court denied the Department's motion to
 dismiss plaintiff's suit, stating that plaintiff should have an opportunity
 to produce evidence establishing that the Department knew or should have
 known that Steven was dangerous.  In January 1993, in response to the
 Department's motion for summary judgment, plaintiff submitted an affidavit
 from the administrator of the estate of Crystal Sumner, the decedent's
 grandfather, which stated (1) the Department knew or should have known that
 Steven was not living with his parents, who were moving in with a relative;
 (2) the relative would not allow Steven to stay with them out of fear for
 her children's safety; and (3) the Department knew or should have known
 that Steven was engaging in high-risk behaviors, such as sexual activity,
 drinking, and getting into fights.  The superior court granted the
 Department's motion, ruling in defendant's favor on the issues of sovereign
 immunity, duty of care, and proximate cause.  We conclude that summary
 judgment was appropriate because a jury could not reasonably have found that
 the Department's actions or omissions were the proximate cause of the
 decedent's injuries.

      Proximate cause is the law's method of keeping the scope of liability
 for a defendant's negligence from extending by ever-expanding causal links.
 Roberts v. State, 147 Vt. 160, 163, 514 A.2d 694, 695 (1986).  An efficient,
 intervening cause is a new and independent force that breaks the chain of
 causal connection between the original wrong and the ultimate result.  Paton
 v. Sawyer, 134 Vt. 598, 600-01, 370 A.2d 215, 217 (1976).  "Whether or not
 the negligence of a third person may or may not amount to such an
 intervening cause turns on the issue of whether or not some such negligent
 act or intervention was something the original actor had a duty to
 anticipate."  Id. at 601, 370 A.2d  at 217; see Dodge v. McArthur, 126 Vt.
 81, 84, 223 A.2d 453, 455 (1966) ("if the initial negligence creates a
 situation making it likely that some other force or action will occur and
 bring about harm, responsibility remains with the original actor"); Lavoie
 v. Pacific Press & Shear Co., 975 F.2d 48, 57-58 (2d Cir. 1992) (stating
 Vermont law on intervening proximate cause); cf. Bradley Center, Inc. v.
 Wessner, 296 S.E.2d 693, 696 (Ga. 1982) ("where the intervening criminal
 acts of third parties are unforeseeable, they will not give rise to
 liability").

      In this case, a reasonable jury could not have concluded that the
 Department had a duty to anticipate Steven's rape and murder of Crystal
 Sumner.  There are no allegations that Steven threatened the decedent, or
 even that he had ever been accused of or adjudicated for any delinquent or
 criminal behavior.  Plaintiff, the decedent's grandfather, submitted an
 affidavit alleging that Steven drank, got into fights, engaged in sexual
 relations, and on at least one occasion had to go to the hospital.  Assuming
 these allegations are based on personal knowledge, see V.R.C.P. 56(e)
 (affidavits shall be made on personal knowledge and shall set forth facts
 that would be admissible in evidence), they are insufficient, as a matter of
 law, to show that the Department should have foreseen the serious danger

 

 posed by Steven.  See Megeff v. Doland, 123 Cal. App. 3d 251, 260 (1981)
 (purpose of motion for summary judgment is to penetrate through evasive
 language and adept pleading in order to ascertain existence or absence of
 triable issues).

      Ordinarily, proximate cause is a jury issue "'unless the proof is so
 clear that reasonable minds cannot draw different conclusions or where all
 reasonable minds would construe the facts and circumstances one way.'"
 Roberts, 147 Vt. at 163-64 514 A.2d  at 696 (quoting Schaefer v. Elswood
 Trailer Sales, 516 P.2d 1168, 1170 (Idaho 1973)).  Here, we conclude that,
 as a matter of law, the only immediate and proximate cause of plaintiff's
 damages was the independent, intentional criminal act of Steven Buelow, not
 the Department's alleged negligence in failing to react more quickly to
 Steven's move from his parent's home.  See Finnegan v. State, 138 Vt. 603,
 606, 420 A.2d 104, 105 (1980) (even if State's negligence allowed inmate to
 escape, State not liable for damages caused by escapee's independent act of
 driving his vehicle into another car); Rivers v. State, 133 Vt. 11, 14, 328 A.2d 398, 400 (1974) (as a matter of law, release of inmate through
 furlough program not proximate cause of deaths from automobile accident
 negligently caused by inmate); cf. Haselhorst v. State, 485 N.W.2d 180, 188
 (Neb. 1992) (agency's failure to obtain records of foster child and to
 investigate suspicious incidents was negligence that made it likely foster
 child would harm other children in home; therefore, foster child's abuse was
 not intervening cause); Little v. Utah State Div. of Family Servs., 667 P.2d 49, 54 (Utah 1983) (in light of agency's failure to respond to signs of
 repeated injuries to foster child, murder of foster child in foster home was
 not intervening proximate cause of her death).  Given the facts and
 circumstances of this case, the allegedly negligent action of the Department
 is far too attenuated to constitute a proximate cause of Crystal Sumner's
 death.

      Affirmed.

                                BY THE COURT:


                               ________________________________________
                               Frederic W. Allen, Chief Justice

                               ________________________________________
                               Ernest W. Gibson III, Associate Justice

                               ________________________________________
                               John A. Dooley, Associate Justice

                               ________________________________________
                               Denise R. Johnson, Associate Justice
 [ ] Publish
 [ ] Do Not Publish            ________________________________________
                               Louis P. Peck, Associate Justice (ret.),
                               Specially Assigned