Carole Kuligoski, Individually and On Behalf of Michael J. Kuligoski, Mark Kuligoski and James Kuligoski
Brattleboro Retreat and Northeast Kingdom Human Services
On Appeal from Superior Court, Windham Unit, Civil Division
John P. Wesley, J. Richard T. Cassidy and Matthew M. Shagam of Hoff Curtis, Burlington, for Plaintiffs-Appellants.
Ritchie E. Berger and Angela R. Clark of Dinse, Knapp & McAndrew, P.C., Burlington, for Defendant-Appellee Brattleboro Retreat.
Stephen J. Soule and Pamela L. Eaton of Paul Frank Collins P.C., Burlington, for Defendant-Appellee Northeast Kingdom Human Services.
Joslyn L. Wilschek and Shireen T. Hart of Primmer Piper Eggleston & Cramer PC, Montpelier, for Amicus Curiae The Vermont Association of Hospitals and Health Systems.
O. Whitman Smith of Mickenberg, Dunn, Lachs & Smith, PLC, Burlington, for Amicus Curiae Vermont Council of Developmental and Mental Health Services, Inc.
Allan R. Keyes of Ryan Smith & Carbine, LTD., Rutland, for Amici Curiae University of Vermont Medical Center, Central Vermont Medical Center and Rutland Regional Medical Center.
A.J. Ruben, Montpelier, for Amicus Curiae Disability Rights of Vermont, Inc.
Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morris, Supr. J., Specially Assigned
¶ 1. This case arises out of the assault of Michael Kuligoski by a former Brattleboro Retreat patient, E.R., after the patient was discharged from the Retreat, a mental health treatment facility, and while he was undergoing outpatient treatment with Northeast Kingdom Human Services (NKHS). Plaintiff Carole Kuligoski, individually and on behalf of Michael, Mark Kuligoski, and James Kuligoski (collectively "plaintiffs"), filed suit in Windham Superior Court against defendants Brattleboro Retreat and NKHS, raising claims of failure to warn of E.R.'s danger to others, failure to train E.R.'s parents in handling E.R., failure to treat, improper release, and negligent undertaking. The superior court granted defendants' motions to dismiss for failure to state a claim, and plaintiffs appealed. We reverse on the failure to warn and train claims, and affirm on the failure to treat, improper release and negligent undertaking claims.
¶ 2. Plaintiffs' complaint alleges the following facts,  as relevant to this appeal. On October 9, 2010, E.R. was voluntarily admitted to the Psychiatric Department at Central Vermont Medical Center (CVMC) with a "psychotic disorder" after having threatened young children in his home. During his first few days at CVMC, E.R. was easily agitated, made threatening remarks, reported auditory hallucinations, was easily agitated, and had fair-to-poor judgment. The examining physician tentatively diagnosed E.R. with a schizophreniform disorder.
¶ 3. On October 15, 2010, the medical professionals at CVMC completed the necessary documents to have E.R. involuntarily committed. The documents stated that he was mentally ill, posed a danger to himself and others, and was in need of involuntary hospitalization. The following day, E.R. was placed in restraints and transferred from CVMC to the Vermont State Hospital where a physician examined him and determined that he was a danger to others and, if released, would pose a danger to his family. There is no indication that either the documents prepared at CVMC or the determination of the physician at the Vermont State Hospital were ever used to start a formal involuntary commitment proceeding. Nor is there an explanation of the basis on which E.R. continued to be held at the Vermont State Hospital. We can conclude only that E.R. must have been held as a voluntary patient.
¶ 4. While at the Vermont State Hospital, E.R. was administered anti-psychotic and anxiety medication. He repeatedly asked to leave the hospital, once tried to escape, threatened to punch out a window, and, although he denied having auditory hallucinations, was observed reacting to unseen stimuli. After E.R. reported feeling unsafe at the hospital, a social worker made a referral for his transfer to the Retreat, a nonprofit psychiatric hospital in Windham County, Vermont. Upon his discharge from the state hospital, he was diagnosed with schizophreniform disorder.
¶ 5. On October 22, 2010, E.R. was examined by a physician at the Retreat who confirmed the state hospital's diagnosis. The physician reported that E.R. "had verbalized homicidal ideation toward staff." E.R. was thereafter placed on a staff-intensive treatment plan but continued to exhibit "grossly psychotic" behavior, lack of insight, and severely impaired judgment. His physician noted that he "required an in-patient level of care to prevent further decompensation." Further reports indicate auditory and visual hallucinations, menacing behavior, and homicidal and suicidal ideation.
¶ 6. On November 1, 2010, E.R.'s physician noted that "E.R. continued to be floridly psychotic, probably paranoid, guarded and gradually improving but that he remained sufficiently ill that he totally lacked insight into his illness and that E.R. would be non-compliant with treatment outside of the hospital." He further noted that E.R. would remain on the treatment plan and be allowed out only for brief intervals.
¶ 7. During his time at the Retreat, E.R.'s behavior did not improve. In his November 10, 2010 assessment, E.R.'s physician stated that, if discharged, E.R. would be a high risk for decompensation, might stop his medication, and might not participate in aftercare treatment. Nevertheless, he stated that E.R. would be discharged on November 12.
¶ 8. On November 12, 2010, E.R.'s physician noted that he stopped taking his medication and had been hearing voices commanding him to kill himself. E.R. said of the commands, "I feel like I should do it." His physician wrote in his assessment, "Obviously [E.R.'s] refusal of medications is very worrisome and exactly what this writer was concerned about. Not only abstractly is it a bad idea, but he actually seems to have experienced an increase in his voices with only missing one night's medications." E.R. was, however, discharged that same day.
¶ 9. Throughout the period of his treatment at both the Vermont State Hospital and the Retreat, E.R. was closely monitored by his parents, with whom he had been living. Exactly what the parents were told at the time of discharge is disputed, although it appears they were told that E.R. "might have schizophrenia." They understood that E.R. was "going through a phase and would recover."
¶ 10. In the discharge summary, E.R.'s physician again stated that E.R. was a high risk for poor compliance with post-discharge treatment; E.R. had been diagnosed as having a "psychotic disorder, not otherwise specified"; and that E.R.'s parents believed his mental health was related to his breakup with a girlfriend in 2009 or possibly a sequela resulting from mononucleosis. He stated that E.R. met the criteria for schizophrenia or, at the very least, schizophreniform disorder.
¶ 11. Prior to E.R.'s discharge, the Retreat developed an aftercare treatment plan with E.R.'s parents that involved regular visits to NKHS. E.R. was also prescribed daily medication, which his mother was told to administer to him. E.R.'s mother believed that E.R.'s condition had considerably improved at the time of his release.
¶ 12. On December 1, 2010, E.R. met with a treatment team at NKHS and signed a cognitive remediation therapy plan. A week later, a member of the treatment team completed a Substance Abuse Addendum, in which he stated "that E.R. was a high risk for Dimension 3 of the Client Placement Criteria (emotional, behavioral or cognitive conditions/complications) because E.R. had recently been diagnosed with a psychotic disorder and had minimal insight surrounding the diagnosis."
¶ 13. In mid-December, E.R. told his mother that he had stopped taking his medication. She called NKHS and spoke with one of the physicians on E.R.'s treatment team. The physician told E.R.'s mother that this was a cause for concern but that E.R. had to decide to take care of himself. E.R. did not meet with anyone at NKHS between mid-December 2010 and March 2011, and no one at NKHS reached out to E.R. during that time or took any action with respect to E.R.'s medication regime.
¶ 14. On February 26, 2011, E.R. accompanied his father to an apartment building in St. Johnsbury owned by E.R.'s grandparents. Plaintiff Michael Kuligoski was also at the apartment building, working on the furnace. E.R. went down to the basement where Mr. Kuligoski was working and assaulted him, causing serious injuries. The forensic psychiatrist who evaluated E.R. at the request of the criminal court stated that the night before the offense, E.R. had not slept well, awoke early that morning, was just "sitting and staring, " and was paranoid that people were staring at him en route to the apartment. The psychiatrist believed that E.R. likely was in a "psychotic haze" at the time of the offense, having been "overcome by the symptoms of his condition to the degree where he acted while in a psychotic storm."
¶ 15. Plaintiffs filed a complaint in superior court, alleging seven counts: (1) the Retreat was negligent in discharging E.R. knowing of his dangerous tendencies and that he was a high risk for decompensation; (2) the Retreat was negligent in failing to warn E.R.'s parents that he posed a risk to the general public; (3) the Retreat was negligent in failing to train E.R.'s parents how to supervise him, monitor and manage his medications, and take necessary and appropriate measures to protect potential victims; (4) the Retreat was negligent in its undertaking "to render a service that it recognized or should have recognized as necessary for the protection of third persons"; (5) NKHS was negligent in failing to warn E.R.'s parents that he posed a risk to the general public; (6) NKHS was negligent in failing to take "immediate and affirmative steps" to treat E.R.; and (7) NKHS was negligent in undertaking its duty to render services to E.R. Although the complaint itemized separate counts, plaintiffs emphasized in the superior court, as well as in this Court, that the counts were based on a common "duty of reasonable care to act to avoid needless risk to the safety of third parties" based on the "special relationship" that existed between the Retreat and NKHS and their patient, E.R.
¶ 16. Defendants moved to dismiss the respective claims against them, pursuant to Vermont Rule of Civil Procedure 12(b)(6). They both argued that they owed no duty to protect plaintiffs from attack by E.R. and that their alleged negligence was not the proximate cause of plaintiffs' injuries. The superior court granted both motions. Relying largely on our decision in Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422 (1985), the superior court concluded that defendants owed no duty to plaintiffs because Michael Kuligoski was not an identifiable victim and defendants were under no duty to control E.R. With respect to the third-party duty, the court explained that plaintiffs' claims "would push the ruling by the Peck majority far beyond the bounds of the holding as limited by the facts there, and the recognition of those claims would stake out expansive new territory not warranted by proper respect for the separation of powers." As to the duty of defendants to control E.R., the court emphasized Vermont's "policy of keeping mentally-ill persons in the least restrictive environment possible." This appeal followed.
¶ 17. On appeal, plaintiffs generally argue that the superior court erred in holding that Peck barred its claims. They contend that, while Peck involved an identifiable victim, its holding should not be read as limiting its reach only to identifiable victims. They argue that this reading is supported by public policy protecting the public from dangerous individuals and is consistent with modern tort scholarship, such as the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41 (2012). Plaintiffs argue that the trial court erred in concluding at this stage of the case that there was no proximate cause. As we explain in our discussion below, we hold that Peck and other precedents bar plaintiffs' duty-to-treat and negligent-undertaking claims. However, we also hold that Peck extends to identifiable and foreseeable victims, and that plaintiffs' duty-to-warn claims should not be dismissed at this stage in the litigation.
¶ 18. We review the superior court's decision "on a motion to dismiss de novo under the same standard as the trial court and will uphold a motion to dismiss for failure to state a claim only if it is beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief." Birchwood Land Co. v. Krizan, 2015 VT 37, ¶ 6, __Vt. __, 115 A.3d 1009 (quotation omitted). "We assume as true all facts as pleaded in the complaint, accept as true all reasonable inference[s] derived therefrom, and assume as false all contravening assertions in the defendant's pleadings." Id. We are "limited to determining whether the bare allegations of the complaint are sufficient to state a claim." Id. (quotation omitted).
I. The Duty of Care
¶ 19. "The existence of a duty is a question of law to be decided by the Court." Sorge v. State, 171 Vt. 171, 174, 762 A.2d 816, 819 (2000). Once a legal duty is established, as well as breach of that duty, there must be factual causation for the defendant to be subject to liability for the harm caused to the plaintiff. See id. (requiring duty before determining causation). "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." Estate of Sumner v. Dep't of Social & Rehab. Servs., 162 Vt. 628, 629, 649 A.2d 1034, 1036 (1994) (mem.) (quotation omitted). On this motion to dismiss, some factual development is necessary to reach the causation issue and determine whether, in light of any possible duty and breach of that duty, there could be proximate cause sufficient for liability.
¶ 20. Before addressing the specific issues, we start with a discussion of the duty to third parties generally, as well as the specific duty of mental health professionals to their patients and non-patient third parties. In doing so, we note that the main issues in this case do not arise from a dispute as to whether defendants had a general duty of care, or even whether that duty extends to non-patients in appropriate circumstances, but rather to the specific elements of that duty. Thus, we are starting at the most general level where there is only limited disagreement between the parties, and moving to more specific levels where the sharp disagreement emerges. As we have repeatedly stated, background principles of negligence provide that "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.' " Sorge, 171 Vt. at 177, 762 A.2d at 820 (quoting W. Prosser & W. Keeton, The Law of Torts § 53, at 358 (5th ed. 1984)). The existence of a duty is "a question of fairness" and "involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution." Id. (quotation omitted).
¶ 21. The modern law on duty comes from the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41 (2012), which provides:
(a) An actor in a special relationship with another owes a duty of reasonable care to third parties with regard to risks posed by the other that arise within the scope of the relationship.
(b) Special relationships giving rise to the duty provided in Subsection (a) include:
. . .
(4) a mental-health professional with patients.
This Restatement section replaces three sections of the Restatement of Torts (Second), which have been used extensively in defining the duty owed by a mental health professional or institution to third parties injured by a patient. See id. §§ 315(a), 319 & 324A.
¶ 22. Comment g to § 41 of the Third Restatement addresses the duty of mental health professionals to third parties. The duty begins with the physician using "customary care" to determine whether a patient poses a risk of harm to others. "Once such a patient is identified, the duty imposed by reasonable care depends on the circumstances" and "may require providing appropriate treatment, warning others of the risks posed by the patient, seeking the patient's agreement to a voluntary commitment, making efforts to commit the patient involuntarily, or taking other steps to ameliorate the risk posed by the patient." Id. Although courts have been hesitant to embrace duties any broader than those to "reasonably identified" victims, § 41 sets no express limit on individuals to whom the duty is owed. Because "[r]easonable care itself does not require warning individuals who cannot be identified, " the proper inquiry is "a question of reasonable care, not a question of the existence of a duty." Id. "However, when reasonable care requires confining a patient who poses a real risk of harm to the community, the duty of the mental-health professional ordinarily extends to those members of the community who are put at risk by the patient." Id. Because patients who are not in custody cannot be controlled in the traditional understanding of the term, the duty imposed on mental-health professionals "is only one of reasonable care." Id. Despite this duty, a "health-care professional can pursue, and may have a statutory obligation to seek, involuntary commitment of patients who are dangerous to themselves or others." Id.
¶ 23. We have not had the occasion to address § 41(b)(4), and no other court has explicitly adopted it. Nonetheless, we note that the principles enunciated in § 41 build upon those of § 315 et seq. of the Second Restatement, and are an evolution of the duties articulated in decades of case law.
¶ 24. The history of this duty of care of mental health professionals or institutions with respect to non-patient third parties begins with the California Supreme Court's decision in Tarasoff v. Regents of University of California, 551 P.2d 334 (Cal. 1976). This landmark case established that mental health professionals have a duty to warn "would-be" victims of a patient's dangerous conduct. Id. at 346. In Tarasoff, a patient at the University of California's Cowell Memorial Hospital informed his therapist that he was planning to kill an unnamed girl- readily identifiable to the therapist as the victim Tatiana Tarasoff-after she returned from her summer in Brazil. Id. at 341. Although the mental health staff sought the authority to petition for the patient's commitment, the University police took the patient into custody briefly and released him after he promised to stay away from the victim. Id. Shortly after Tarasoff's return, the patient went to her residence and killed her. Id.
¶ 25. Tarasoff's parents filed a negligence suit against the University, the psychotherapists employed by the university hospital, and the campus police claiming that the defendants owed a duty to protect their daughter from the patient and breached that duty by failing to warn the plaintiffs of the patient's threats and failing to confine the patient under a California statute that governs the involuntary commitment of individuals with mental health disorders. The California Supreme Court concluded that the defendants were shielded by governmental immunity from liability under the statute for failing to confine the patient, and addressed only the merits of the duty-to-warn claim. Id. at 341-42.
¶ 26. In conducting its analysis into the defendants' duty to warn, the California court balanced a number of considerations, including
the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.
Id. at 342 (quotation omitted). Although foreseeability is a significant factor, the court noted that, in avoiding foreseeable harm, a defendant will not be required to control the conduct of another person or warn of such conduct unless "the defendant bears some special relationship to the dangerous person or to the potential victim." Id. at 343. The court then concluded that a special relationship existed between a therapist and patient, and that "[s]uch a relationship may support affirmative duties for the benefit of third persons." Id. The court found that the interest in protecting a potential victim who has been threatened by a patient outweighs the countervailing policy considerations, such as doctor-patient confidentiality, the difficulty of predicting a patient's future violent acts, and the risk of unnecessary warnings. Id. at 345-46.
¶ 27. Importantly, while the court observed that its prior decisions recognizing such a duty involved situations where the defendant maintained a special relationship with both the victim and the person whose conduct created the danger, see, e.g., Johnson v. State, 447 P.2d 352, 355 (Cal. 1968) (upholding suit against state for failure to warn foster parents of dangerous tendencies of child), it concluded the duty should not "logically be constricted to such situations, " id. at 344. As guidance, the court cited cases from other jurisdictions recognizing such a duty in the context of doctors failing to warn their patients not to drive when taking certain medications for the safety of the general public, or failing to warn the family members of patients with contagious diseases. Id. at 344.
¶ 28. As the California Supreme Court summarized,
[The] defendant therapists cannot escape liability merely because [the victim] herself was not their patient. When a therapist determines, or pursuant to the standards of his profession should determine, that his patient presents a serious danger of violence to another, he incurs an obligation to use reasonable care to protect the intended victim against such danger. The discharge of this duty may require the therapist to take one or more of various steps, depending upon the nature of the case. Thus it may call for him to warn the intended victim or others ...