Sorge v. State

Annotate this Case
Sorge v. State (98-573); 171 Vt. 171; 762 A.2d 816 

[Filed 25-Aug-2000]

       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.

                                 No. 98-573

Keith Sorge and Patricia Sorge	                 Supreme Court

                                                 On Appeal from
     v.	                                         Chittenden Superior Court

State of Vermont	                         December Term, 1999

Matthew I. Katz, J.

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


       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 issue 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, 372 S.E.2d 373, 375 (Va. 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. [FN1]

       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

       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 clearly 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. The  Counseling Serv. of Addison
  County, Inc., 146 Vt. 61, 64-65, 499 A.2d 422, 425 (1985).  The 
  Restatement (Second) of Torts § 315 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 (1965), 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 negligence only if it is first established that the State's
  relationship with the  person to be "controlled" is such that it is fair
  and just to impose upon the State a duty to control the  person's conduct
  to prevent him from causing harm to another.  Plaintiffs argue that SRS,
  knowing  of Cole Grant's violent history, had a duty to take reasonable
  precautions to control the minor for the  protection of Keith Sorge.

       Plaintiffs contend - and the State concedes - that a "special
  relationship" exists between the  State and the juvenile, at least to the
  extent that SRS by law has charge of children placed with it  pursuant to
  33 V.S.A. §§ 5528-5529.  Plaintiffs argue that this relationship is
  sufficient to provide an  exception to the general principle that there is
  no duty to control the conduct of a third person as to  prevent him from
  causing physical harm to another.  We disagree.


       Although plaintiffs would have us begin and end the analysis of the
  State's duty of care in  this case by reliance on § 319 and its
  accompanying illustrations, duty is not sacrosanct in itself, but  only "an
  expression of the sum total of those considerations of policy which lead
  the law to say that  the plaintiff is entitled to protection."  Denis Bail
  Bonds, 159 Vt. at 487, 622 A.2d  at 499 (quoting  W. Prosser & W. Keeton,
  The Law of Torts § 53, at 358 (5th ed. 1984)).  "Whether a duty exists is 
  ultimately a question of fairness.  The inquiry involves a weighing of the
  relationship of the parties,  the nature of the risk, and the public
  interest in the proposed solution."  Langle v. Kurkul, 146 Vt.  513, 520,
  510 A.2d 1301, 1305 (1986) (quoting Kelly v. Gwinnell, 476 A.2d 1219, 1222
  (N.J. 1984))  (emphasis, internal quotation marks and citation omitted). 

       The difficulty with an assertion that a State's "special relationship"
  to third persons within its  custody imposes a "duty to control" is that it
  assumes the State's purpose is to "control" all persons  within its
  custody.  While it is possible to envision circumstances where the State's
  purpose and  capacity to control "a person having dangerous propensities"
  is much more explicit than the facts  presented here, we have previously
  rejected a legal theory that seeks to premise State liability on the  acts
  of a third person released pursuant to a State rehabilitative program.  See
  Rivers v. State, 133 Vt.  11, 14, 328 A.2d 398, 400 (1974) (rejecting
  argument for transferable liability to State "where there  is release on
  probation or parole, or even for early release based on good time.  Such a
  theory might  hold the Legislature itself to be responsible . . . based on
  a release from a sentence too short to  rehabilitate.").

       Furthermore, this application of the § 319 exception to the rule that
  there is no common-law  duty to control the conduct of another to protect a
  third person has been rejected by jurisdictions that  have recognized that
  most juvenile and adult programs dealing with persons committed to the 


  custody of the State are intended to rehabilitate conduct rather than
  control it.  See Davenport  v. Community Corrections of the Pikes Peak
  Region, 962 P.2d 963, 968-69 (Colo. 1998)  ("Community corrections . . 
  programs designed to . . . reintegrate incarcerated offenders into 
  society.");  Finnegan v. State, 138 Vt. 603, 420 A.2d 104 (1980); see also
  RUF v. Honolulu Police  Dept., 972 P.2d 1081, 1093 (Haw. 1999) (in
  declining to apply § 319 to alleged negligent release of  prisoner by
  police, court notes that risk of liability could pressure police to "err
  more often on the  side of excessive detention").  Thus, for example,
  parents of a restaurant employee who was raped  and killed by a coworker,
  who had been conditionally released from prison, asserted that § 319 of the 
  Restatement established a duty of care on the part of the  Kansas
  Department of Corrections.  The  Supreme Court of Kansas found that neither
  the parole officer nor the Department of Corrections had  charge of the
  individual who committed the assault to the extent necessary to fall within
  § 319.  See  Schmidt v. HTG, Inc., 961 P.2d 677, 687 (Kan. 1998).  In
  rejecting the imposition of liability upon  the State under the rationale
  of § 319, the Court observed:

    [An] overbroad construction . . . escalates the State's
    responsibility to  that of the virtual guarantor of the safety of
    each and every one of its  citizens from illegal and unlawful
    actions of every parolee or person  released from custody under
    any type or kind of supervision.

  Id.; see also Thompson v. County of Alameda, 614 P.2d 728, 735 (Cal. 1980)
  ("[p]arole and  probation release . . . comprise an integral and continuing
  part in our correctional system authorized  by the Legislature, serving the
  public by rehabilitating substantial numbers of offenders and returning 
  them to a productive position in society."); Whitcombe v. County of Yolo,
  141 Cal. Rptr. 189, 199  (Ct. App. 1977) ("Were we to find a cause of
  action [here], we would in effect be encouraging the  detention of
  prisoners in disregard of their rights and society's needs."); Rivers, 133
  Vt. at 14, 328 A.2d  at 400 (argument that State should be liable for harm caused by person
  on rehabilitative release  for failing to control such persons "runs
  dangerously parallel to the arguments for preventative  detention").

       Even where the entity that has nominal custody of an individual is
  private, courts have  determined that the rehabilitative purpose of such
  programs and the corollary absence of the type of  custodial control
  envisioned by § 319 do not give rise to a "special relationship" sufficient
  to impose  liability for injuries caused to a third party by an individual
  within the "charge" of the entity.  See,  e.g., Beauchene v. Synanon
  Found., Inc., 151 Cal. Rptr. 796, 799 (Ct. App. 1979) (holding that 
  rehabilitation agency, whether public or private, has no duty to control a
  convict participating in its  rehabilitation program), cited in Cardenas v.
  Eggleston Youth Center, 238 Cal. Rptr. 251, 252-53  (Cal. Ct. App. 1987)
  (same); Davenport, 962 P.2d  at 968-69 (social utility and level of control
  of  community corrections program precludes § 319 liability).  But see
  Dudley v. Offender Aid and  Restoration of Richmond, Inc., 401 S.E.2d 878,
  882-83 (Va. 1991) (holding privately owned halfway  house liable for § 319
  negligence action because public policy considerations not same for private 
  institution as for public officials).

       Arguing the applicability of § 319 to the instant case, plaintiffs
  rely upon an example in  which the defendant is the operator of a private
  sanitarium from which an insane patient is permitted  to escape through the
  negligence of guards.  See Restatement (Second) of Torts § 319, cmt. a,
  illus.  2.  Apart from other distinctions, it is clear that the
  Restatement's authors present an example in  which there can be little
  doubt that the purpose of the facility was to "control" an individual 
  committed to the facility by securing him within the confines of the
  sanitarium.  See Knight v.  Rower, __ Vt. __, __, 742 A.2d 1237, 1244
  (1999) (citing Restatement (Second) of Torts § 319,


  illus. 1, 2 (noting hospitals for contagious diseases and institutions
  guarding insane people as  examples) ("[Section 319] applies, for example,
  where the person controlled is infirm in such a way  that any uncontrolled
  social contact would pose a dangerous risk to others and an institution has
  been  charged with caring for that person.")). 

       However, the concerns that prevented other courts from extending
  liability to custodians of  inmates and juveniles are present in this case. 
  As the superior court stated, imposing the negligence  claimed here on the
  State would erode the public policy of rehabilitation of juveniles through 
  reunification with their families and the public.  See 33 V.S.A. §
  5501(a)(2) ("to remove from  children committing delinquent acts the taint
  of criminality and the consequences of criminal  behavior and to provide a
  program of treatment, training, and rehabilitation consistent with the 
  protection of the public interest"); § 5501(a)(3) ("to achieve the
  foregoing purposes, whenever  possible, in a family environment, separating
  the child from his parents only when necessary for his  welfare or in the
  interests of public safety").  SRS's actions here were "authorized by
  statute, and  [are] an integral part of the rehabilitative function" of
  their mission.  Finnegan v. State, 138 Vt. 603,  605, 420 A.2d 104, 105
  (1980).  The Legislature has weighed the public interest in safety against
  the  public policy favoring rehabilitation of juveniles through
  reunification with their families and the  community, and has struck a
  balance in favor of rehabilitation.  See 33 V.S.A. § 5535 (emphasizing  the
  rehabilitative and non-punitive nature of juvenile proceedings).

       Although the SRS plan for Grant failed with serious consequences for
  plaintiffs, imposing a  "blanket liability" upon the State is not the
  remedy for such a failure.  Thompson, 614 P.2d  at 734.   The general public
  benefits from legislative efforts to rehabilitate offenders - particularly
  juvenile  offenders - and consequently "'each member of the general public
  who chances to come into contact


  with a parolee bear[s] the risk that the rehabilitative effort will fail. .
  . .'"  Id. at 735 (quoting  Johnson v. California, 447 P.2d 352, 364
  (1968)) (alteration and omission in original).  We echoed  this sentiment
  with regard to adult furloughees in Rivers, 133 Vt. at 13, 328 A.2d at 399:

    These statutes represent a part of the rehabilitative pattern for 
    criminal offenders that the Legislature has seen fit to implement.
    That  body deliberately elected to put upon the public the risks
    incident to  such a program, in return for the presumably greater
    rehabilitative  returns. Whether this was wise policy is not a
    judicial concern, since  it was clearly within the proper province
    of the Legislature to  undertake it.  

  Our statement in Rivers is of equal, or indeed even greater validity, where
  juvenile offenders are  involved.  See also Nova Univ., Inc. v. Wagner, 491 So. 2d 1116, 1119 (Fla. 1986) (McDonald, C.J.,  dissenting) ("The duty of
  care owed by the person or institution should only extend to those under
  its  supervision.  That duty should not extend to the public at large for
  the acts of troubled youth.   Indeed, several states have recognized the
  appropriateness of this limitation on liability.").  

       Here, plaintiffs ask us to equate SRS's statutory responsibility for
  the juvenile with the  common-law "duty to control" envisioned in § 319. 
  To find an exception to the common-law rule  that there is no duty to
  control the conduct of another to protect a third person from harm, we 
  conclude that the State's purpose in taking charge of the third person must
  explicitly be to control  that person.  Furthermore, to invoke that
  exception, the State's attempts to exercise that control must  be
  consistent with the specific objective of insulating a person having
  dangerous propensities from  uncontrolled contact with others whom the
  State knows or has reason to know are likely to be  harmed by the person
  the State intends to isolate.

       Thus, we decline to impose a duty of care on the State that would
  disturb the delicate balance  the Legislature has crafted between the best
  interests of children and the broader interests of public


  safety.  We hold that SRS owed no duty of care to plaintiffs based upon a
  failure to control  the actions of the juvenile, Cole Grant.  Absent this
  duty, plaintiffs' negligence action must fail.  See  Rubin, 168 Vt. at 625,
  721 A.2d  at 506.


                                       FOR THE COURT:

                                       Chief Justice


FN1.  This Court may affirm a trial court's decision if the correct
  result is reached, despite the  fact that the court based its decision on a
  different or improper rationale.  See Bissonnette v. Wylie,  166 Vt. 364,
  370, 693 A.2d 1050, 1055 (1997) ("We agree with the trial court's
  conclusion, but use a  different rationale to reach it."); Hudson v. Town
  of East Montpelier, 161 Vt. 168, 170, 638 A.2d 561, 563 (1993) ("[W]e need
  not adopt the court's rationale in affirming its conclusion.").