Carole Kuligoski, Individually and On Behalf of Michael J. Kuligoski, and Mark Kuligoski and James Kuligoski
Brattleboro Retreat and Northeast Kingdom Human Services Docket No. 47-2-14 Wmcv
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
Stephen J. Soule and Pamela L. Eaton of Paul Frank Collins
P.C., Burlington, for Defendant-Appellee Northeast Kingdom
L. Wilschek and Shireen T. Hart of Primmer Piper Eggleston
& Cramer PC, Montpelier, for Amicus Curiae The Vermont
Association of Hospitals and Health Systems.
Whitman Smith of Mickenberg, Dunn, Lachs & Smith, PLC,
Burlington, for Amicus Curiae Vermont Council of
Developmental and Mental Health Services, Inc.
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.
Ruben, Montpelier, for Amicus Curiae Disability Rights of
PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ.,
and Morris, Supr. J. (Ret.), Specially Assigned
above-entitled cause, the Clerk will enter:
amended opinion has been issued in this case in response to
motions for reargument. The opinion issued May 6, 2016,
Kuligoski v Brattleboro Retreat, 2016 VT 54, is
withdrawn and replaced by an amended opinion, Kuligoski v
Brattleboro Retreat, 2016 VT 54A. The State of
Vermont's motion to file for reargument as amicus curiae
is granted. Appellees' and amici curiaes' motions for
reargument are denied.
REIBER, C.J. and SKOGLUND, J. dissenting.
this opinion first issued in May 2016, the Court received an
astonishing number of motions for reargument-from the
parties, amici, and not least the State of Vermont, Agency of
Human Services-urging the majority to reconsider its decision
to impose a new, ill-defined, and unprecedented duty of care
on mental health care providers in the State of Vermont.
State's motion is especially noteworthy because it
represents neither a party to the case nor one of the many
amicus curiae invested in its outcome, but rather the broader
interests of health care patients and their families
statewide. The State's clear and dispassionate analysis
of both the immediate and long term damage resulting from the
majority's misguided judgment is essential reading for
anyone interested in the subject. While far too nuanced to
summarize adequately, the State's view is captured in its
introduction, which is well worth quoting in full:
The Court's May 6, 2016 decision imposes on mental health
care providers a "duty of care to provide sufficient
information" to a patient's "caretakers"
so those individuals can "fully assume their caretaker
responsibilities to assist [the patient] and protect against
any harmful conduct in which he might engage. . . . "
The ambiguous scope of this new duty creates the very real
risk that providers-facing uncertain liabilities and
potentially conflicting legal obligations-will err on the
side of providing treatment in more restrictive settings and
making more requests for involuntary treatment. The ruling
thus has immediate and potentially far-reaching consequences
for Vermont's system of care. It may also deter family
members and others from helping to care for those with mental
illness. . . . The Court should vacate the opinion and
reconsider its decision to adopt this novel duty of care.
although the majority has made changes to "narrow"
its holding, the changes are entirely inadequate to address
the harm identified by the State: the majority's failure
to recognize that it has created and imposed on mental health
care providers a duty so ill-defined and uninformed that even
the best, and the best-intentioned, providers will be
confused and conflicted as to their professional obligations.
Ironically, although the majority clearly believes that its
decision represents progressive thinking, it is at odds with
the real interests of Vermont's health care providers,
patients, and the public at large. The State is correct; the
Court should grant the several motions for reargument, vacate
its decision, and reject this novel duty.
A. Dooley, Associate Justice
Dissenting: Paul L. Reiber, Chief Justice, Marilyn S.
Skoglund, Associate Justice
Concurring: Beth Robinson, Associate Justice Walter M.
Morris, Jr., Superior Judge (Ret.), Specially Assigned
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 claim and train claims, and affirm on the
failure to treat, improper release, failure to train, and
negligent undertaking claims.
2. Plaintiffs' complaint alleges the following facts,
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, and had fair-to-poor judgment. The examining
physician tentatively diagnosed E.R. with a schizophreniform
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
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,
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
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
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
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
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
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, 198 Vt. 420, 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 Soc. & 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 nonpatient 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 nonpatients 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.
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
(b) Special relationships giving rise to the duty provided in
Subsection (a) include:
. . .
(4) a mental-health professional with patients.
Restatement section replaces three sections of the
Restatement (Second) of Torts (1965), 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
24. The history of this duty of care of mental health
professionals or institutions with respect to nonpatient
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
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
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.
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 likely to apprise
the victim of the danger, to notify the police, or to take
whatever other steps are reasonably necessary under the
Id. at 340. In summary, Tarasoff held that
a therapist has a duty to warn either "the endangered
party or those who can reasonably be expected to notify
him." Id. at 347.
29. On the heels of Tarasoff came the California
Supreme Court's decision in Thompson v. County of
Alameda, 614 P.2d 728 (Cal. 1980), which further
articulated the duty to warn when a potentially dangerous
individual makes a generalized threat to the general public
or a segment of the population-i.e., an unidentifiable
victim. In Thompson, a juvenile offender had been in
the custody of a county institution under a court order.
Id. at 730. After he was released on temporary leave
into his mother's custody, he murdered a neighboring
child in the garage of his mother's home. Id.
The complaint alleged that the county knew of the
juvenile's "latent, extremely dangerous and violent
propensities regarding young children and that sexual
assaults upon young children and violence connected therewith
were a likely result of releasing (him) into the
community." Id. The complaint also alleged that
the county knew the juvenile offender "had indicated
that he would, if released, take the life of a young child
residing in the neighborhood, " although he gave no
indication of any specific child he intended to harm.
30. The plaintiffs, the parents of the victim, claimed that
the county was negligent in releasing the juvenile into the
community and failing to warn the juvenile's mother, the
local police, or "parents of young children within the
immediate vicinity" of his mother's residence.
Id. In deciding the extent of the duty, the court
turned to Tarasoff, emphasizing that the holding
extended to "specifically foreseeable and identifiable
victim[s] of the patient's threats." Id. at
734. The court also reiterated Tarasoff's words
of caution-that " 'the open and confidential
character of psychotherapeutic dialogue encourages patients
to express threats of violence, few of which are ever
executed' " and that " 'a therapist should
not be encouraged routinely to reveal such threats'
" because " 'such disclosures could seriously
disrupt the patient's relationship with his therapist and
with the persons threatened.' " Id.
(quoting Tarasoff, 551 P.2d at 347). The court also
cautioned that a therapist should not disclose confidential
information unless necessary to avert danger and that "
'even then that he do so discreetly, and in a fashion
that would preserve the privacy of his patient to the fullest
extent' " possible. Id. (quoting
Tarasoff, 551 P.2d at 347). The Thompson
court interpreted Tarasoff to require as a
precondition of liability that the victim be "readily
identifiable, " if not "specifically named."
Id. The court thus rejected the plaintiffs'
attempt to impose "blanket liability" on the county
for failing to warn the parents of the victim or other
neighborhood children, the police, or the juvenile's
mother. Id. The court based its decision on policy
considerations, as well as "foreseeability" within
the context of the case. Notably, the court considered the
"practical obstacles" to imposing a broad duty:
In our view, the generalized warnings sought to be required
here would do little to increase the precautions of any
particular members of the public who already may have become
conditioned to locking their doors, avoiding dark and
deserted streets, instructing their children to beware of
strangers and taking other precautions. By their very numbers
the force of the multiple warnings required to accompany the
release of all probationers with a potential for violence
would be diluted as to each member of the public who by such
release thereby becomes a potential victim. Such a warning
may also negate the rehabilitative purposes of the parole and
probation system by stigmatizing the released offender in the
Id. at 736.
31. Thus, the court found that warnings to both the police
and the parents of neighborhood children would be of little
beneficial effect. Id. As specifically relevant to
this case, the California high court considered the effect of
warnings to the juvenile offender's mother, into whose
custody he was released. Id. at 737. The court
concluded that such a warning would not have the desired
effect of warning the potential victims because the mother
would not be likely to volunteer information to neighborhood
parents that her son posed a threat to their welfare,
"thereby perhaps thwarting any rehabilitative effort,
and also effectively stigmatizing both the mother and son in
the community." Id. The court did not find
persuasive the dissent's reasoning "that the mother
'might' have taken special care to control her son
had she been warned of [his] threats, " concluding that
such "attenuated conjecture" cannot alone support
the imposition of liability. Id. The court
distinguished Johnson, 447 P.2d at 355, which held
that the state had a duty to warn the foster family of a