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Kuligoski v. Rapoza

Supreme Court of Vermont

February 16, 2018

Carole Kuligoski, Individually and on behalf of Michael J. Kuligoski, and Mark Kuligoski and James M. Kuligoski
v.
Evan M. Rapoza, John E. Rapoza, Anne M. Rapoza, John A. Rapoza and Christine M. Rapoza

         On Appeal from Superior Court, Caledonia Unit, Civil Division

          Richard T. Cassidy and Matthew M. Shagam of Rich Cassidy Law, P.C., Burlington, for Plaintiffs-Appellants.

          Kaveh S. Shahi of Cleary Shahi & Aicher, P.C., Rutland, for Defendants-Appellees.

          Robert R. Bent, J. (motion for summary judgment); Michael R. Kainen, J. (final judgment)

          PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Davenport, Supr. J. (Ret.), Specially Assigned

          SKOGLUND, J.

         ¶ 1. This is the second case arising from the near-fatal assault of Michael Kuligoski by Evan Rapoza, who had previously been diagnosed with schizophreniform disorder. In this case, plaintiffs-members of the Kuligoski family-brought suit against Evan's grandparents, claiming that they were liable for Evan's assault of Mr. Kuligoski while Mr. Kuligoski was repairing the furnace at their rental property. Plaintiffs claim, among other things, that the grandparents are vicariously liable for Evan's father's negligent hiring or supervision of Evan, who was there to help his father repaint an apartment.[1] On appeal, plaintiffs seek reversal of the trial court's order granting grandparents summary judgment. Plaintiffs argue that the court erred by determining that grandparents could not be held vicariously liable for the attack because it was not reasonably foreseeable. We affirm, but on a different basis than that relied upon by the trial court.

         ¶ 2. The following unchallenged facts come from grandparents' statement of undisputed facts and the trial court's order granting grandparents summary judgment. In 2009, during the summer following his freshman year in college, Evan Rapoza became ill with mononucleosis. He went back to school in upstate New York that fall but soon returned home complaining that he was tired. After returning home, he began to act oddly, one was forgetful and overly dependent. That winter, Evan began counseling and treatment, but his mental condition and behavior worsened. In October 2010, his behavior toward some children prompted his mother to take him to Vermont Medical Center for admission and psychiatric evaluation.

         ¶ 3. Over the following month, Evan received treatment at multiple facilities. He was alternatively diagnosed with schizophreniform disorder, schizoaffective disorder, and schizophrenia. Eventually, he was admitted to the Brattleboro Retreat for five days. He was discharged from the Retreat with prescriptions for antipsychotic medication and a plan for outpatient monitoring by Northeast Kingdom Human Services. In late December 2010, a little over a month after his discharge from the Retreat, Evan told his mother that he had not been taking his medication. On February 26, 2011, Evan assaulted and severely injured Mr. Kuligoski while Evan was helping his father with work at an apartment building owned by grandparents. Evan was there because his father, who is grandparents' son, managed the property and was doing renovation work at the building for grandparents.

         ¶ 4. Plaintiffs commenced this action in April 2013. Their complaint contained three counts, one against Evan for assault, one against his parents for negligence in failing to supervise and control him, and one against grandparents for negligence in failing "to take reasonable steps to ensure that the[ir] property was reasonably safe for visitors there." With respect to this third remaining count, plaintiffs alleged that Evan's father, as grandparents' agent, "had a duty to effectively supervise and control Evan" and that his failure to do so "was negligence imputable to [grandparents]." They further alleged that grandparents were negligent in failing to supervise and control their son, who created an unreasonable risk to Mr. Kuligoski by bringing Evan onto the property.

         ¶ 5. In December 2013, following discovery that included plaintiffs deposing the parents and grandparents, grandparents filed a motion for summary judgment. Grandparents argued that, for the following reasons, they could not be held liable for Evan's attack on Mr. Kuligoski: (1) the attack was unforeseeable because at the time of the attack they did not know that Evan had mental health issues; (2) any negligence on father's part could not be imputed to them because father was an independent contractor rather than their employee; and (3) in any event, father was not negligent in supervising Evan because Evan's mental health providers did not advise him that Evan was dangerous to others.

         ¶ 6. In their response, plaintiffs asserted that: (1) whether grandparents knew of Evan's mental illness was irrelevant because their liability was based on the claim that Evan's father was their employee and created an unreasonable risk of danger to Mr. Kuligoski by bringing Evan onto the property he managed for them; (2) grandparents failed to conclusively establish that father was an independent contractor rather than their employee; and (3) the attack was foreseeable because Evan's parents knew that Evan had violent tendencies. Plaintiffs also stated that they needed to depose mental health care professionals who had treated Evan to better respond to the question of what Evan's parents knew about Evan's violent tendencies.

         ¶ 7. In May 2015, after both sides filed supplemental memoranda, the trial court granted grandparents' motion for summary judgment, concluding that: (1) to the extent plaintiffs were alleging direct liability on the part of grandparents based on a claim of negligent supervision, that claim failed as a matter of law because it is undisputed that on the day of the assault grandparents were unaware of Evan's mental-health issues; and (2) notwithstanding the ambiguity as to whether father was grandparents' employee, grandparents owed no duty to Mr. Kuligoski because Evan's parents did not undertake to render services by monitoring Evan's treatment after his release from the Brattleboro Retreat and because, even assuming that father was grandparents' employee, Evan's assault against Mr. Kuligoski was not foreseeable.

         ¶ 8. Plaintiffs appeal that decision to this Court, arguing that the trial court erred: (1) in finding as a matter of law that Evan's attack on Mr. Kuligoski was not foreseeable; (2) in refusing to apply the doctrine of respondeat superior even though grandparents presented a case in which a jury could have reasonably concluded that father was their employee and that he negligently supervised Evan at their apartment building at a time when he knew or should have known that Evan's violent tendencies posed a risk of harm to other persons at the site; and (3) in rejecting their claim that Evan's parents undertook and breached a duty to monitor Evan's treatment after his release from the Brattleboro Retreat, thereby making Evan's assault on Mr. Kuligoski more likely.

         ¶ 9. Grandparents respond that: (1) they did not owe a duty of care to protect Mr. Kuligoski from unforeseeable harm resulting from Evan's assault; (2) final judgment in favor of Evan's parents bars plaintiffs' claim seeking to impute the parents' alleged negligence to grandparents; (3) policy considerations preclude imposing a duty on Evan's father to prevent Evan from harming Mr. Kuligoski; and (4) their son's alleged negligence in supervising Evan cannot be imputed to them based on their son's alleged employment relationship with them or a claim that Evan's parents undertook a duty to monitor Evan's treatment after his release from the Brattleboro retreat.

         ¶ 10. On appeal, we review summary judgment rulings de novo, using "the same standard as the trial court." White v. Quechee Lakes Landowners' Ass'n, 170 Vt. 25, 28, 742 A.2d 734, 736 (1999). Summary judgment is appropriate only if the moving party "shows that there is no genuine dispute as to any material fact" and that the party "is entitled to judgment as a matter of law." V.R.C.P. 56(a). To determine whether there is any genuine dispute as to any material fact, "we accept as true any allegations made in opposition to the summary judgment motion if they are supported by affidavits or other evidentiary materials." Deutsche Bank Nat'l Trust Co. v. Watts, 2017 VT 57, ¶ 7, ___ Vt. ___, 171 A.3d 392. In assessing the facts, we give ...


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