Sorge v. State (98-573); 171 Vt. 171; 762 A.2d 816
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
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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,
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'
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:
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.").