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Montague v. Hundred Acre Homestead, LLC

Supreme Court of Vermont

March 8, 2019

Darryl R. Montague
v.
Hundred Acre Homestead, LLC

          On Appeal from Superior Court, Chittenden Unit, Civil Division Robert A. Mello, J.

          Christina A. Jensen of Lisman Leckerling, P.C., Burlington, for Plaintiff-Appellant.

          Ritchie E. Berger and Angela R. Clark of Dinse, Knapp & McAndrew, P.C., Burlington, for Defendant-Appellee.

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

          ROBINSON, J.

         ¶ 1. This case calls for us to consider whether one who provides residential care for an individual has a tort-law duty to warn a potential victim of violence by that individual when that potential victim is neither individually identified or identifiable, nor a member of a discrete identified or identifiable class of potential victims. Plaintiff Darryl Montague sued Hundred Acre Homestead, a therapeutic residential community, after a resident of Hundred Acre shot him at the shooting range he owned. He invokes two theories of liability: first, that as the resident's mental-health provider, Hundred Acre breached a duty to take reasonable steps to protect him from the resident by warning him of the danger she posed; and second, that Hundred Acre breached a duty to him by accepting and retaining the resident for care in violation of applicable Vermont regulations. Montague has appealed the superior court's dismissal of both. We conclude that both theories of negligence fail because neither establishes that Hundred Acre had a cognizable legal duty to protect Montague enforceable through a private tort action. We thus affirm.

         ¶ 2. Montague's complaint reflects the following. V.M. ("resident") began living at Hundred Acre, a licensed therapeutic community residence, in January 2015. As part of its intake process, Hundred Acre was required to comprehensively assess resident's history, including her current level of personal, social, familial, educational, and vocational adjustment, and to identify any major dysfunctions leading to her need for residential treatment. It was also required to review information from agencies, institutions, and programs she had previously used. It had to determine if it could safely and appropriately provide for her care needs, or if she had a serious, acute illness requiring the medical, surgical, or nursing care of a general or special hospital.

         ¶ 3. Resident had a history of mental illness that had resulted in multiple previous hospital admissions for psychiatric care, and for which she had been prescribed antipsychotic medications. She had a criminal record that included an order prohibiting her from purchasing or possessing a firearm or other weapons; an order restraining her from contacting certain persons; at least two past charges dismissed due to mental incapacity; and two convictions from the previous year for criminal assault in the third degree with intent to cause physical injury.

         ¶ 4. While at Hundred Acre, resident "inquired three times about wanting to go target shooting because that was a way for her to deal with aggression."

         ¶ 5. On June 29, 2015, resident went to Vermont Target Sports, [1] a target-shooting facility, and shot its owner Darryl Montague in the head and abdomen, causing him severe injuries that will prevent him from ever being able to function normally again, and for which he will require constant medical attention for the rest of his life.

         ¶ 6. In April 2017, Montague filed this action for damages, alleging that Hundred Acre was negligent because it knew or should have known that resident had a history of mental illness, a criminal record that included an order prohibiting her from possessing firearms and other weapons, and two recent criminal-assault convictions, and thus "knew or should have known that she posed a serious risk of danger to identifiable or foreseeable third parties." He argued that Hundred Acre, as resident's mental-health provider, had a special relationship which imposed on it a duty to use reasonable care to protect foreseeable or identifiable victims of gun violence by resident, such as him-and that it failed to do so, directly and proximately causing his injuries. Montague also alleged that Hundred Acre was negligent because it violated Vermont regulations by accepting and retaining resident when she had needs for which it could not safely and appropriately provide, and that its breach of this duty directly and proximately caused his injuries.

         ¶ 7. Hundred Acre moved to dismiss, arguing it owed no duty to Montague to warn or protect him from resident. It noted that there is generally no duty to control the actions of another in order to protect a third party, and that the exception requiring mental-health professionals to take steps to protect identifiable victims to whom their patients pose a serious danger did not apply in this case because Montague was not an identifiable victim. It also argued that the regulations Montague cited did not support a private action for damages by members of the general public because they were explicitly enacted for the protection of therapeutic-community residents.

         ¶ 8. The superior court dismissed Montague's claims, holding Montague had failed to establish Hundred Acre owed him a duty of care. It held Hundred Acre had no duty to warn Montague because Montague was not an identifiable victim, and rejected Montague's claim that Hundred Acre was negligent in accepting or retaining resident in violation of state regulations, namely the Licensing and Operating Regulations for Therapeutic Community Residences, §§ 4.15(b)(3), 5.1(a), because those regulations "do not create an actionable duty." Code of Vt. Rules 13-110-012 [hereinafter Licensing and Operating Regulations], https://dail.vermont.gov/ resources/regulations [https://perma.cc/2EMS-FR5V].

         ¶ 9. On appeal, Montague reiterates his two main arguments: first, Hundred Acre was negligent because, as resident's mental-health provider, it had a duty under Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 499 A.2d 422 (1985), and our subsequent holding in Kuligoski v. Brattleboro Retreat, 2016 VT 54A, 203 Vt. 328, 156 A.3d 436, to protect her identifiable and foreseeable victims.[2] Montague argues he was both an identifiable and foreseeable victim because Hundred Acre knew or should have known of resident's "lengthy and significant history of violence, restraining orders, and threats of violence and mental illness, as well as that she was prohibited from purchasing or possessing firearms and had been prescribed antipsychotic medications" and because she had told Hundred Acre she wished to go target shooting to deal with her aggression. Montague contends that, in holding these facts were insufficient to put Hundred Acre on notice that resident posed a serious risk to Montague as an identifiable or foreseeable victim, the trial court improperly engaged in fact-finding at the motion-to-dismiss stage. Second, Montague argues that Hundred Acre was negligent because it violated 33 V.S.A. ยง 7111(d)(3) and the Licensing and Operating Regulations, which prohibit therapeutic residential ...


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