Dalmer v. State

Dalmer v. State (99-479); 174 Vt. 157; 811 A.2d 1214

[Filed 15-Aug-2002]


       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. 1999-479


  Brian Dalmer, et al.	                         Supreme Court
       
                                                 On Appeal from
       v.	                                 Lamoille Superior Court


  State of Vermont, et al.	                 November Term, 2000


  Alden T. Bryan, J.
      
  Harold B. Stevens, Stowe, for Plaintiff-Appellant.
      
  Philip C. Woodward and Afi Ahmadi of Dinse, Knapp & McAndrew, P.C.,
    Burlington, for Defendants-Appellees.

  William H. Sorrell, Attorney General, and James C. Shea and Michael O.
    Duane, Assistant Attorneys General, Montpelier, for Amicus Curiae
    Department of Social and Rehabilitation Services.


  PRESENT:  Dooley, Morse, Johnson and Skoglund, JJ., and Burgess, D.J.,
            Specially Assigned

        
       DOOLEY, J.   In December 1993, Jeremy Dalmer ran away from home for
  the first of five separate times during the ensuing two years.  This act is
  at the center of this litigation.  In December 1995, Brian Dalmer and his
  wife Colleen Dalmer, parents of Jeremy, filed this lawsuit against
  defendants, the Vermont Department of Social and Rehabilitative Services
  (SRS), Gerald Jeffords (a SRS employee), the Lamoille Family Center (LFC)
  and David Connor (an LFC employee), alleging: defendants negligently took
  and retained custody of Jeremy in violation of the Juvenile 

 

  Proceedings Act, 33 V.S.A. §§ 5501-5561; defendants deprived plaintiffs of
  their fundamental liberty interest in family integrity in violation of
  their civil rights, 42 U.S.C. § 1983; SRS maliciously brought an action to
  terminate plaintiffs' parental rights; defendants negligently placed Jeremy
  in foster homes where he was neglected and did not receive proper care,
  food or supervision; and defendants intentionally inflicted emotion
  distress on plaintiffs.  The trial court granted summary judgment to
  defendants on the civil rights claim.  After testimony in a jury trial
  concluded, the trial court granted judgment as a matter of law on the
  remaining claims.  Appellants then dismissed all claims against Gerald
  Jeffords and SRS, leaving only those against Connor and LFC.  Father
  appeals both the summary judgment and the judgment as a matter of law as to
  these defendants.  We affirm.

       The material facts in this case are not in dispute.  On December 26,
  1993, Jeremy Dalmer, who was fifteen years old at the time, had an argument
  with his father over some house rules, including ones relating to curfews,
  televison viewing, snowboarding, and other issues about Jeremy's lifestyle. 
  That night, Jeremy ran away from home.  He traveled thirty-five miles by
  bicycle through the cold snow to a motel in Morrisville, where he stayed
  the night.  The next day he rode his bicycle to a nearby friend's house. 
  That day, December 27, his friend's mother contacted Washington County
  Youth Services, which advised her to contact SRS.  She told Jeremy that she
  was uncomfortable with him staying at her house without his parents'
  permission, so he left her residence and went to the Fisk residence.
   
       The next day, Jeremy contacted the Morrisville SRS office himself to
  inform them that he ran away from home.  SRS referred Jeremy's case to the
  LFC and David Connor.  LFC had a contract with SRS to run the LINK program
  (the Lamoille Inter-agency Network for Kids) to provide shelter and other
  services to unmanageable youths and runaways in the area.  LINK is a
  program "to 

 

  assist children who have run away for the purpose of reuniting them with
  their parents, guardian or legal custodian."  33 V.S.A. § 5511(3).  Connor
  was the director of this program.  Prior to this, Connor had no contact
  with Jeremy.  On December 29, Connor contacted Jeremy's mother and father
  and told them that their son had run away from home.  Connor obtained a
  history of Jeremy's problems from his father, who demanded that Connor
  return Jeremy to his parents' home.  Connor refused to force Jeremy to go
  home because Jeremy had made it clear that, if forced to return home, he
  would run away again.  Connor did attempt to negotiate Jeremy's return to
  his home, rather than calling the police to have them take Jeremy into
  their custody as a runaway.  Father rejected Connor's attempts at
  reconciling the parties and continued to demand that the LFC and SRS return
  Jeremy to his home.

       While Jeremy was staying at the Fisk residence, Connor drove him
  thirty miles to school each day.  During the daily drives he encouraged
  Jeremy to return home; he also told Jeremy that he had legal options other
  than going home, including turning himself over to SRS custody.  Despite
  Connor's encouragement to return home, Jeremy chose to remain with the
  Fisks.  On January 6, 1994, at Jeremy's request, Jeremy entered the LINK
  shelter program and began to stay with the Stone family.  At the Stone
  residence, Jeremy was allowed to watch television and stay out later than
  his parents had allowed him to when he was living at home.  While Jeremy
  was staying with the Stones, Connor continued to encourage Jeremy to go
  back to his family.  Jeremy also spoke with his family a number of times on
  the telephone and returned home to eat several meals with them.
   
       On January 20, 1994, Connor informed Jeremy that he could no longer
  take advantage of the LINK program because LINK's contract with SRS allowed
  for only a two-week stay at a shelter.  He gave Jeremy three options: go
  home to his family, call his family to work out an agreement with 

 

  them, or turn himself in to the police.  He told Jeremy that if he did not
  choose one of these three options, he would be considered a runaway child
  and the police would detain him.  That same day, Connor also informed
  father that the LFC's contract had ended.  Jeremy did not exercise any of
  the three options Connor had given him.  Instead, he went to the Fisk
  residence again, but later that night a state trooper picked Jeremy up and
  first took him to the State police barracks in Waterbury and then back home
  to his parents.

       The next morning, as he promised, Jeremy ran away again; this time he
  took a taxi to the Morrisville police station and turned himself in as a
  runaway.  He ran away from home again in May 1994 and a fourth time in
  November 1994.  Finally, he ran away a fifth time in May 1995 over a
  dispute about his prom.  After several termination-of-parental-rights
  hearings, the family court issued an order placing Jeremy in the legal
  custody of his parents and giving SRS protective supervision.  Throughout
  the hearings, Jeremy testified that if the court ordered him to go home, he
  would run away again.

       In December 1995, Plaintiffs Brian and Colleen Dalmer sued defendants
  SRS, Gerald Jeffords, the LFC, and David Connor, listing the five causes of
  action set out at the beginning of this opinion.  The trial court granted
  summary judgment for defendants on the civil rights and malicious
  prosecution claims.  After hearing plaintiffs' evidence, the court granted
  defendants judgment as a matter of law on the remaining claims.  Following
  the final judgment, plaintiffs dismissed all claims against SRS and Gerald
  Jeffords, leaving only the claims against the LFC and David Connor for our
  review.  They have raised issues with respect to each of the counts except
  the malicious prosecution count.

 
        
       Our understanding of the issues on appeal is somewhat affected by the
  confusing series of amendments, or attempted sets of amendments, to the
  complaint that added and dropped parties and significantly modified the
  central issues in the case.  On the eve of trial, plaintiffs attempted to
  amend their complaint to modify the first and fourth causes of action. 
  Significantly, that proposed amendment also appeared to change the parties,
  identifying the plaintiffs only as "Brian Dalmer and Jeremy Dalmer."

       The most important amendment changed the first count from one that
  alleged a violation of the Juvenile Procedures Act to one that alleged that
  defendants were negligent or grossly negligent by taking and keeping
  custody of Jeremy in violation of the Juvenile Procedures Act.  Plaintiff
  called this a "negligence per se" count.  Although this amendment was never
  formally authorized, the court and parties proceeded as if it had occurred. 
  See V.R.C.P. 15(b).

       Plaintiffs also attempted to amend the fourth count, which alleged
  defendants were negligent in placing and supervising Jeremy in certain
  foster homes.  This amendment was never formally authorized.  None of
  plaintiffs' arguments on appeal appear to relate to this count.  We
  therefore need not determine whether the amendment occurred.
   
       Plaintiffs' first two appeal issues relate to the trial court's
  resolution of their negligence claim.  As discussed above, we address these
  issues in relation to the first amended count.  In practical terms, this
  means we are addressing the actions of defendants only up to and including
  January, 1994 - that is, only with respect to the first time Jeremy ran
  away from home.  Although the proper parties were never clearly resolved,
  we will assume that by the time of trial the plaintiffs were Brian and
  Jeremy Dalmer.  With that background in mind the first two issues are: (1)
  whether the court erred in concluding that "plaintiffs did not have a
  presumed negligence claim against 

 

  defendants for violation" of 33 V.S.A. § 5512(c); and (2) the court erred
  in holding that a jury could not find that defendants were negligent and
  that there was no proximate cause.

       The logical progression of plaintiffs' first argument is as follows:
  defendants violated 33 V.S.A. §§ 5511, 5512(c) by failing to return Jeremy
  to his father after 7 days; §§ 5511 & 5512(c) are safety statutes so
  violation is negligence per se; the court erred in failing to submit
  plaintiffs' negligence per se case to the jury.  We cannot accept any of
  the steps of this argument.
        
       The statutory sections on which plaintiffs rely deal generally with
  the taking of juveniles into custody, normally prior to the formal
  commencement of juvenile proceedings.  Title 33, section 5510 specifies
  four methods by which a juvenile may be taken into custody: (1) by arrest;
  (2) by order of the juvenile court; (3) by a law enforcement officer who
  has reasonable grounds to believe that a "child is in immediate danger from
  his surroundings;" and (4) by a law enforcement officer who has reasonable
  grounds to believe that the child "has run away from his parents, guardian
  or legal custodian." (FN1)   The person who takes custody of a child has
  three options: (1) to release the child to the child's parents, guardian or
  custodian; (2) to deliver the child to the juvenile court; and (3) in case
  of a runaway child, a law enforcement officer can deliver the child to an
  organization designated by SRS "as qualified to assist children who have
  run away for the purpose of reuniting them with their parents, guardian or
  legal custodian."  Id. § 5511(3).  Under § 5512(a), SRS "shall designate
  shelters throughout the state where a child taken into custody pursuant to
  section 5510(4) of this title may be housed for a period not to exceed 7
  days."  When a child is delivered to a designated shelter program, the
  program director or designee must notify the parents, guardian or custodian
  "that the 

 

  child has been taken into custody," id. § 5512(b)(1), and attempt "to
  mediate the differences between the parties," id. § 5512(b)(2).  During the
  time that the child is in the shelter, legal custody of the child remains
  with the parent unless the juvenile court otherwise orders.  Id. § 5512(d). 
  Upon the expiration of the 7 day period set out in § 5512(a) or at the
  request of the child or parents, the child must be released to the child's
  parents, guardian or custodian or a law enforcement officer who must
  deliver the child to the juvenile court pursuant to § 5511(2).  Id. §
  5512(c).

       Plaintiffs allege that defendants took Jeremy into custody and failed
  to deliver him to his parents as required by § 5512(c).  Alternatively,
  they allege that defendants were required by § 5511 to deliver Jeremy to
  his parents or the juvenile court.

       As the superior court held, plaintiffs' arguments fit neither the
  facts nor the law.  Plaintiffs particularly rely upon § 5512(a) which
  authorizes that children taken into custody under § 5510(4) be housed for
  no more than 7 days and argues that defendants held Jeremy over 7 days.
  (FN2)   By its terms, however, the limit applies only to children taken
  into custody under § 5510(4) - that is, by a law enforcement officer.  No
  law enforcement officer was involved in this case during the period covered
  by plaintiffs' argument.  If Jeremy was held in physical custody, it was
  not by a law enforcement officer.
   
       We emphasize that the absence of the involvement of a law enforcement
  officer is not a technicality in this context.  Under § 5510, the
  Legislature limited the persons who could take custody of a child without a
  court order.  If defendants took custody of Jeremy, as plaintiffs allege,

 

  they did so unlawfully.  Cf. State v. Sullins, 509 N.W.2d 483, 484-85 (Iowa
  1993) (where statute provides that peace officer may take protective
  custody of a child, juvenile court officer was not a peace officer and had
  no authority to take such protective custody).

       More broadly, we agree with defendants that they did not hold Jeremy
  in custody as a matter of law.  We are reviewing a judgment as a matter of
  law, and in such circumstances, we employ the same standard as the trial
  court.  See Gero v. J.W.J. Realty, 171 Vt. 57, 59, 757 A.2d 475, 476
  (2000). (FN3)   Judgment as a matter of law may be granted where " 'there
  is no legally sufficient evidentiary basis for a reasonable jury to find
  for [the non?moving] party.' "  Brueckner v. Norwich University, 169 Vt.
  118, 122, 730 A.2d 1086, 1090 (1999) (quoting V.R.C.P. 50(a)(1), (b))
  (alteration in original).  Under the rule, we must consider the evidence in
  the light most favorable to the nonmoving party, excluding the effect of
  any modifying evidence.  See id. 
   
       The Juvenile Procedures Act does not define "custody," but it does
  define "legal custody" as the legal status created by order of the juvenile
  court which invests in a party "the right to have the physical possession
  of a minor and to determine where and with whom he shall live, the
  authority to consent to major medical, psychiatric, and surgical treatment,
  and the right and duty to protect, train, and discipline him and to provide
  him with food, shelter, education and ordinary medical care."  33 V.S.A. §
  5502(a)(10).  We recognize that with respect to a runaway child in a
  shelter, the status plaintiffs argue Jeremy was in, the parents retain
  "legal custody."  Id. § 5512(d).  Reading the sections together, we believe
  the intent is that the custodian under §§ 5510, 5511, and 5512, has only

 

  physical custody, that is, the physical possession of the child.  In other
  contexts, physical custody is defined in terms of possession or
  restrictions on liberty.  See 15 V.S.A. § 1031(8) (under Uniform Child
  Custody Jurisdiction Act, physical custody means "actual possession and
  control"); State v. Wargo, 168 Vt. 231, 234, 719 A.2d 407, 409 (1998) (for
  purposes of post-conviction relief statute and V.R.Cr.P. 32(d), custody
  means a significant restraint of personal liberty).

       There was no evidence that LFC or Connor had physical possession of
  Jeremy or imposed restrictions on his liberty.  Originally, Jeremy lived in
  the home of his choice.  Thereafter, for two weeks, LFC allowed him to live
  in the shelter home of the Stones which enabled Jeremy to go to his home
  school.  Although this may have been a shelter home that pursuant to §
  5512(a) could be used for a child taken into custody, there is no evidence
  it was being used for that purpose in this case.  Jeremy resided there
  voluntarily while Connor kept unsuccessfully trying to persuade him to
  return home.

       Plaintiffs argue that Connor should have returned Jeremy to his home
  against his will.  They also complain that Connor acted improperly in
  discontinuing services after Jeremy's time at the Stone shelter came to an
  end without ensuring his safety.  Thus, although they claim that Connor and
  LFC had custody as part of the argument that defendants violated the
  statute, the nucleus of their substantive claim is that defendants failed
  to take custody of Jeremy and perform the acts they wanted.  As we
  discussed above, defendants had no legal right to take custody of Jeremy
  without the intervention of a law enforcement officer.  Their failure to
  act as plaintiffs demand shows that Connor and LFC never had custody in the
  first instance.
   
       Even if we could agree that plaintiffs showed that defendants violated
  the statutes, we cannot agree that this violation is negligence per se. 
  Proof of violation of a safety statute or regulation 

 

  creates a prima facie case of negligence.  See Bacon v. Lascelles, 165 Vt.
  214, 222, 678 A.2d 902, 907 (1996).  The statutes or regulations that we
  have held have this effect have directly been concerned with the safety of
  persons in the position of plaintiff to avoid the kind of harm plaintiff
  suffered.  See id. at 223, 678 A.2d  at 907 (fire safety code);  Weeks v.
  Burnor, 132 Vt. 603, 607, 326 A.2d 138, 140 (1974) (rule of the road);
  Landry v. Hubert, 101 Vt. 111, 113, 141 A. 593, 593 (1928) (same);
  Wakefield v. Connecticut & Passumpsic Rivers R.R. Co., 37 Vt. 330, 333
  (1864) (railroad safety statute); Marzec-Gerrior v. D.C.P. Indus., Inc.,
  164 Vt. 569, 571, 674 A.2d 1248, 1249 (1996) (occupational safety
  regulations).  In Estate of Kelley v. Moguls, Inc., 160 Vt. 531, 534, 632 A.2d 360, 362 (1993), we adopted Restatement (Second) of Torts § 286
  (1965), which defines the elements of a safety statute or regulation that
  has this effect.  The statute or regulation must be intended at least in
  part:

    (a) to protect a class of persons which includes the one whose
    interest is invaded, and
    (b) to protect the particular interest which is invaded, and
    (c) to protect that interest against the kind of harm which has
    resulted, and
    (d) to protect that interest against the particular hazard from
    which the harm results.

  Id.; see also id. § 288.  The primary purpose of the juvenile procedures
  act is to protect the welfare of children.  See 32 V.S.A. § 5501(a); In re
  R.B., 152 Vt. 415, 420, 566 A.2d 1310, 1312 (1989).  Only in the broadest
  sense can the act be said to be a safety statute.
   
       Again, our ability to resolve plaintiffs' argument is limited by the
  confused state of the pleadings and the vague statement of plaintiffs'
  claims.  Apparently, plaintiffs' position is that if defendants had
  immediately taken custody of Jeremy in December of 1993 or early January of
  1994 and returned him to his parents, Jeremy would have understood that he
  had no option but to stay with 

 

  his father and follow his rules.  The complaint alleges that as a result of
  defendants' actions Brian Dalmer "lost the love, society, affection and
  companionship of Jeremy for a number of years," had to "expend money on
  legal and expert fees and court costs" in fighting subsequent SRS
  interventions after the remaining runaway incidents, suffered "public
  scorn, ridicule, and severe emotional stress;" and incurred medical and
  psychiatric bills for therapy for Jeremy.  Presumably, these are the items
  of damage from which we can derive the interests that plaintiff, Brian
  Dalmer, seeks to protect.  Although we have no specification of Jeremy's
  alleged damages, we assume they are similar.
   
       Plaintiffs rely upon statutes that require that those taking custody
  of a juvenile act within a specified time limit to take the child to the
  court or to return the child to his or her parents.  The purpose of these
  statutes is to ensure due process of law in the administration of the
  juvenile procedure act.  See In re Proceedings Concerning a Neglected
  Child, 130 Vt. 525, 531-32, 296 A.2d 250, 254 (1972); Gottlieb v. County of
  Orange, 84 F.3d 511, 520 (2d Cir. 1996) (if child removed from parents'
  home without prior judicial authorization, parents must have an opportunity
  for a hearing "at a reasonably prompt time after the removal").  Although
  they generally protect the interests of children and their families to a
  neutral adjudication of whether grounds exist for state intervention, we do
  not believe that they are intended to protect the interests of either Brian
  or Jeremy Dalmer against the kind of harm they allege has resulted or
  against "the particular hazard from which the harm results."  Restatement
  (Second) of Torts at § 286(d); see Claypool v. Hibberd, 626 N.W.2d 539,
  545-46 (Neb. 2001) (statute that requires officer to notify parents on
  detaining a child ensures due process of law and is not intended to prevent
  the child from harming himself); cf. Johnson v. State, 165 Vt. 588, 589,
  682 A.2d 961, 963 (1996) (mem.) (motel licensing law did not impose any
  duties with respect to the purchaser of a motel beyond those owed to the
  public as a 

 

  whole); Andrew v. State, 165 Vt. 252, 258, 682 A.2d 1387, 1391 (1996)
  (inspection duties imposed by law on VOSHA agency are aimed at protecting
  the health and safety of the public as a whole and not a particular
  employee who is injured); Denis Bail Bonds, Inc. v. State, 159 Vt. 481,
  489, 622 A.2d 495, 499-500 (1993) (state agency's obligation to enforce
  regulatory laws over bail bondsmen does not create liability to notify
  bonding company of complaints; any duty agency had was for the protection
  of the public rather than bonding company).

       Even if the sections of the juvenile procedures act were safety
  statutes, our law is not that violation of the statutes is negligence per
  se, as plaintiffs argue.  See Cooper v. Burnor, 170 Vt. 583, 585, 750 A.2d 974, 976 (1999) (mem.) (violation of safety statute creates only a
  rebuttable presumption of negligence which disappears on the production of
  any evidence to the contrary); id. at 586-87, 750 A.2d  at 977 (Dooley, J.,
  dissenting and advocating change to negligence per se rule);
  Marzec-Gerrior, 164 Vt. at 576, 674 A.2d  at 1252.  Instead, it is that
  violations of safety statutes create rebuttable presumptions of negligence. 
  As the trial judge held, the main effect of such a violation would have
  been in the charge to the jury, if that had occurred.
   
       This brings us to the third step of plaintiffs' logic in this case:
  that as a result of the violation of the juvenile procedures act,
  plaintiffs introduced sufficient evidence to reach the jury on Count I of
  the complaint, their negligence per se count.  It is here that we have the
  most difficulty with plaintiffs' theory of the case.  Negligence is an
  unintentional tort based on the failure of the defendant to perform a duty
  with due care resulting in injury to the plaintiff.  See Restatement
  (Second) of Torts § 282 cmt. d. (contrasting negligence with intentional
  torts).  This case is a dispute over the right of defendants to take
  certain actions with respect to a runaway child, consistent with their
  assumed role as an intermediary between the parents and their child.  Every
  act of Connor 

 

  about which plaintiffs complain was done intentionally and pursuant to
  policy of LFC.  See Hockensmith v. Brown, 929 S.W.2d 840, 845 (Mo. Ct. App.
  1996) (theories of intentional tort and negligence are mutually exclusive). 
  Plaintiffs do not complain that defendants committed malpractice or
  otherwise were professionally negligent; instead they complain that
  defendants had no right to intervene.  Nor is this a case in which it could
  be said that defendants were negligent with respect to the alleged harm. 
  Connor expected that his actions would keep Jeremy separated from his
  parents unless a negotiated settlement was reached and that Jeremy would
  become aware of his legal options.

       This case is vastly different from Sabia v. State, 164 Vt. 293, 669 A.2d 1187 (1995), the case on which plaintiffs primarily rely.  In Sabia,
  we held, based on specific statutes that define the responsibilities of SRS
  social workers, that plaintiff children could bring a negligence action
  against the State based on the failure of the workers to protect them after
  they had knowledge of continuing sexual assaults on them by their
  stepfather.  Unlike this case, the statutes relied upon in Sabia were
  intended to protect plaintiffs from the harm that occurred and thus gave
  rise to a duty of care.  Id. at 299-300, 669 A.2d  at 1191-92.  Plaintiffs
  alleged that the workers were professionally negligent.
   
       Whether we view this as an intentional tort action, or an action for
  damages caused by violation of the statute, it is not a negligence action. 
  Plaintiffs' labels alone cannot control the substance of the case.  See
  Benavidez v. United States, 177 F.3d 927, 931 (10th Cir. 1999) (allegation
  of negligence cannot turn an intentional tort into negligent conduct);
  United National Ins. Co. v. The Tunnel, Inc., 988 F.2d 351, 354 (2d Cir.
  1993) (plaintiff cannot prevail by dressing up intentional tort action as a
  negligence action).  We have recognized this principle in cases where a
  plaintiff labels an alleged intentional tort as negligent conduct in order
  to achieve insurance coverage.  See T.B.H. v. Meyer, 168 Vt. 149, 153, 716 A.2d 31, 34 (1998) ("We must focus on the 

 

  factual allegations in [the] complaint and not on the legal theories
  asserted . . . ."); Nationwide Mut. Fire Ins. Co. v. Lajoie, 163 Vt. 619,
  620, 661 A.2d 85, 86 (1995) (mem.).

       We have one particularly relevant precedent.  In Cronin v. State, 148
  Vt. 252, 531 A.2d 929 (1987), plaintiff state employee alleged that
  defendants, supervisory employees and the State, were negligent in
  disclosing confidential information that resulted in plaintiff's wife
  finding out that plaintiff was thought to be having an affair with another
  woman.  Plaintiff grounded his negligence action on a personnel regulation
  that prohibited employees from disclosing certain confidential information. 
  We did not examine whether the regulation created a rebuttable presumption
  of negligence, as plaintiffs argued in this case, or whether the regulation
  created a duty on which a negligence action could be premised.  Instead, we
  analyzed the case as one in which plaintiff was seeking to create an
  implied private cause of action for violation of the statute, and finding
  that the Legislature intended no such private right of action, id. at 255,
  531 A.2d  at 931, we upheld dismissal of the relevant counts of the
  complaint.  Id.; see also Corbin v. Buchanan, 163 Vt. 141, 144-47, 657 A.2d 170, 172-74 (1994) (relying on Cronin, no private right of action against
  town for failure to enforce provisions of building and fire protection
  codes).
   
       We conclude that Cronin represents the proper way to analyze this
  complaint.  As set forth in § 874A of the Restatement (Second) of Torts,
  creating a civil tort remedy for violation of a statute is proper only if
  the statute "protects a class of persons by proscribing or requiring
  certain conduct" and "the remedy is appropriate in furtherance of the
  purpose of the legislation and needed to assure the effectiveness of the
  provision."  Restatement (Second) of Torts § 874A; see also Cronin, 148 Vt.
  at 255, 531 A.2d  at 931 (personnel rule creates no duty running from
  defendants to plaintiff and would frustrate the legislative scheme); Carr
  v. Peerless Ins. Co,, 168 Vt. 465, 473-74, 724 A.2d 454, 

 

  459 (1998); Shields v. Gerhart, 163 Vt. 219, 232, 658 A.2d 924, 933 (1995)
  (Court has been "cautious in creating a private damage remedy even where
  the Legislature has provided no alternative civil remedy"); O'Brien v.
  Island Corp., 157 Vt. 135, 140 n.3, 596 A.2d 1295, 1298 n.3 (1991) (citing
  § 874A, Court is hesitant to create a private remedy where "it is clear
  that the Legislature could have done so, knew it could do so, and did not
  do so").

       As discussed above, we cannot conclude that the statute was intended
  to protect plaintiffs with respect to the harm that they allege.  Moreover,
  we believe that civil liability would frustrate the legislative purpose, as
  recognized in 33 V.S.A. § 5511(3), for the State to fund intermediary
  programs like LINK to negotiate the reuniting of a runaway child and the
  child's parents.  Plaintiffs' position is that such an intermediary
  negotiation role is never proper; the only proper action when a state
  official or an employee of a state funded program comes across a runaway
  child is for that person to take the child home, involuntarily if
  necessary.  If the courts imposed civil liability for the conduct intended
  by a program that the Legislature authorized, we would undermine the
  legislative authorization.

       Our discussion above largely disposes of plaintiffs' second claim -
  that they showed enough to reach the jury on their negligence theory,
  irrespective of the statutory violation.  Plaintiffs do suggest a somewhat
  different theory under this second claim, that is, that defendants
  negligently rendered services to Jeremy, although they return to their
  familiar arguments that the negligence occurred in not returning Jeremy to
  his parents or informing the parents of Jeremy's location and in
  discontinuing services without an alternative.
   
       In any event, the superior court disposed of this claim by granting
  defendants judgment as a matter of law because plaintiffs failed to show
  that defendants' negligence was a proximate cause 

 

  of the alleged harm.  In reaching this conclusion, the trial court
  particularly relied upon the fact that Jeremy immediately ran away again
  when returned to his parents' home and ran away three more times
  thereafter.

       Plaintiffs concede that they must establish proximate cause in order
  to recover.  See Cannata v. Wiener, ___ Vt. ___, ___, 789 A.2d 936, 938
  (2001) (mem.).  They argue that the testimony of Jeremy establishes the
  necessary link between defendants' actions and their harm.  The testimony
  was in response to a question whether if he had been returned home on
  January 5 or 6, he would have stayed home:

    If the response to my running away had been to bring me back in
    general, then things would have been a lot different and, no, I
    wouldn't have continued to leave.  That may have happened a couple
    of more times, sure.  But, you know, things would have changed. 
    It would have been different.

  The standard for determining whether to grant judgment as a matter of law
  is set out above.  We conclude that under this standard the trial court
  properly granted judgment as a matter of law.

       Irrespective of his testimony, Jeremy stated he would run away again
  if returned to his parents' home, and he did run away when that occurred. 
  Moreover, he admitted in his testimony that he would have run away "a
  couple of more times" and that also happened.  At best, plaintiffs can
  argue from the testimony that Jeremy would have run away fewer times if
  defendants had brought him home.  Unlike SRS and its worker, whom
  plaintiffs let out of this case before the appeal, defendants had only a
  brief contact with Jeremy at the beginning of a lengthy process of state
  intervention to protect Jeremy's welfare.  We believe that it is too
  speculative to conclude that different actions by defendants would have
  avoided the injuries plaintiffs allege.

 

       We reach the same conclusion with respect to plaintiffs' claim that
  defendants were negligent in discontinuing services for Jeremy after the
  expiration of 14 days at the Stone home.  While the evidence shows that
  defendants discontinued services, it fails to show that either Jeremy or
  his parents suffered any injury from the cessation of services.  Jeremy was
  picked up almost immediately by a law enforcement officer and returned to
  his parents' home, exactly what plaintiffs allege was the proper course of
  action.

       Next, plaintiffs argue that the court erred by granting summary
  judgment in favor of defendants on plaintiffs' claim that defendants
  violated their civil rights by interfering with "the training and relations
  between parent and child."  Plaintiffs argue that Connor interfered with
  father's constitutionally protected custodial rights over Jeremy by taking
  "unlawful custody of Jeremy without [father's] consent or permission
  without any reason or basis to do so."

       We conclude that plaintiffs waived this claim of error, at least in
  part.  Only SRS and Jeffords moved for summary judgment in writing on this
  count of the complaint.  Following the argument over this motion, counsel
  for LFC and Connor argued that any favorable ruling on the summary judgment
  motion should also apply to LFC and Connor.  Plaintiffs' counsel agreed
  with this position.  Based on this agreement, the trial court stated that
  it would issue its rulings with respect to SRS and Jeffords and follow that
  with the same decision for LFC and Connor, unless in the meantime,
  plaintiffs filed an argument why all four defendants should not be treated
  alike.
   
       Plaintiffs never made an argument to differentiate between SRS and
  Jeffords, on the one hand, and LFC and Connor on the other.  A month after
  the argument, the trial court granted summary judgment for SRS and Jeffords
  on the civil rights count, holding that SRS is not a "person" as defined in
  the Act and under this Court's decision in Billado v. Appel, 165 Vt. 482,
  489, 687 A.2d 84, 89 (1996), Jeffords was entitled to qualified immunity.  Thereafter, it
  issued a summary judgment on this count on behalf of Connor and LFC "for
  the reasons expressed on the record."

       Plaintiffs now argue here that qualified immunity does not apply to
  LFC and Connor because they are not state officials.  We believe this
  argument is foreclosed by plaintiffs' agreement at trial that all
  defendants should be treated the same, and their failure to make a written
  argument to the contrary.  Furthermore, we agree with defendants that the
  trial judge's ruling was correct.  Plaintiffs' substantive claim is
  indistinguishable from that made in Billado.  We decline plaintiffs'
  invitation to overrule Billado.

       Even without a waiver, we need not address the merits of plaintiffs'
  argument.  Plaintiffs admit that a necessary element of their claim is that
  defendants took custody of Jeremy.  As we set out above, defendants'
  custody of Jeremy was also an element of plaintiffs' claim that defendants
  violated 33 V.S.A. §§ 5511 and 5512(a), and, as a matter of law, plaintiffs
  failed to show such custody at trial.  Thus, even if the summary judgment
  decision was wrong, plaintiffs' civil rights act count would also have been
  properly dismissed at trial.  See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986) (standards for summary judgment and judgment as a matter of
  law are essentially the same).  Any error in resolving the summary judgment
  motion was harmless.  See Jakab v. Jakab, 163 Vt. 575, 580, 664 A.2d 261,
  263 (1995) (in the absence of prejudice to appealing party, erroneous
  ruling is harmless).
   
       Finally, plaintiffs argue that the court erred in granting judgment as
  a matter of law on plaintiffs' claim that Connor and LFC intentionally
  inflicted emotional distress on them.  To prove intentional infliction of
  emotional distress, plaintiffs must show " 'outrageous conduct, done
  intentionally or with reckless disregard of the probability of causing
  emotional distress, resulting in 

 

  the suffering of extreme emotional distress, actually or proximately caused
  by the outrageous conduct.' "  Crump v. P&C Food Markets, Inc., 154 Vt.
  284, 296, 576 A.2d 441, 448 (1990) (quoting Sheltra v. Smith, 136 Vt. 472,
  476, 392 A.2d 431, 433 (1978)).  As a threshold issue, the trial court must
  determine whether the conduct was so extreme and outrageous that a jury
  could reasonably find for the plaintiff.  See Denton v. Chittenden Bank,
  163 Vt. 62, 66, 655 A.2d 703, 706 (1994).  The standard for establishing
  outrageous conduct is necessarily a high one.  The conduct must be "so
  outrageous in character, and so extreme in degree, as to go beyond all
  possible bounds of decency, and to be regarded as atrocious, and utterly
  intolerable in a civilized community."  Restatement (Second) of Torts § 46
  cmt. d; see Demag v. Am. Ins. Co., 146 Vt. 608, 611, 508 A.2d 697, 699
  (1986) (plaintiff has "heavy burden to make out a case of outrageous
  conduct").

       As we discussed earlier in this opinion, when reviewing a judgment
  granted as a matter of law, we must view the evidence in the light most
  favorable to the nonmoving party and exclude the effects of modifying
  evidence.  See Gero, 171 Vt. at 59, 757 A.2d  at 476.  Much of the analysis
  of this claim is determined by our conclusions above, particularly our
  conclusion that defendants never had custody of Jeremy.  We add that, in
  any event, the statutory violation alleged by plaintiffs does not, alone,
  make defendants' conduct outrageous.  See Bigby v. Big 3 Supply Co., 937 P.2d 794, 800 (Col. Ct. App. 1996) (violation of Colorado
  Anti-Discrimination Act in firing plaintiff does not make the conduct
  outrageous).
   
       In arguing against the trial court action plaintiffs also recite
  father's testimony that after Jeremy ran away, but before he entered the
  LINK program, Connor refused to tell father where Jeremy was and told
  father that there was no use in calling the police because Jeremy did not
  want to return home and Connor was taking care of Jeremy.  Father urges us
  to conclude that this 

 

  interaction and other similar interactions amount to an abuse of Connor's
  position sufficient to meet the high standard for outrageous conduct.  Even
  if we accept as true father's testimony and exclude any modifying evidence,
  these conversations do not meet the standard for outrageous conduct.  See
  Denton, 163 Vt. at 66, 655 A.2d  at 706 ("We have never extended liability
  to 'mere insults, indignities, threats, annoyances, petty oppressions, or
  other trivialities.' ") (quoting Restatement (Second) of Torts § 46 cmt.
  d).  The trial court correctly granted judgment as a matter of law on
  plaintiffs' claim of intentional infliction of emotional distress.

       Affirmed.

                                       FOR THE COURT:


                                       _______________________________________
                                       Associate Justice


------------------------------------------------------------------------------
                                  Footnotes


FN1.  Sections 5510 and 5511 were amended after the trial of this case.  See
  2001, No.41, §§ 5,6.  The amendments have no bearing on the issues before
  us.

FN2. The 7-day limit of § 5512(a) is largely irrelevant to this case
  because § 5512(c)(1) requires the shelter to return the child to the
  child's parents when the parents request such return.  It is undisputed
  that Jeremy's father consistently sought the return of Jeremy from the
  first contact by Connor.

FN3.  Plaintiffs argue that the superior court found that a jury question
  existed on whether defendants took physical custody of Jeremy, and we are
  bound by this ruling.  We disagree.  Because the standard of review of a
  judgment as a matter of law is the same as that employed by the trial
  court, our review is nondeferential.