Carole Kuligoski, Individually and On Behalf of Michael J. Kuligoski, Mark Kuligoski and James Kuligoski v. Brattleboro Retreat and Northeast Kingdom Human Services
This text of 2016 VT 54 (Carole Kuligoski, Individually and On Behalf of Michael J. Kuligoski, Mark Kuligoski and James Kuligoski v. Brattleboro Retreat and Northeast Kingdom Human Services) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.
2016 VT 54
No. 2014-396
Carole Kuligoski, Individually and On Behalf of Supreme Court Michael J. Kuligoski, Mark Kuligoski and James Kuligoski On Appeal from Superior Court, Windham Unit, v. Civil Division
Brattleboro Retreat and Northeast Kingdom May Term, 2015 Human Services
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.
PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morris, Supr. J., Specially Assigned
¶ 1. DOOLEY, J. 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,1 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
1 Plaintiffs also brought an action against E.R., E.R.’s parents and E.R.’s grandparents seeking the same damages they seek in this action. See Kuligoski v. Rapoza, No. 42-2-113 Cacv, (Vt. Sup. Ct. May 13, 2015). The superior court in that case granted summary judgment for defendants and dismissed the action on May 13, 2015. The parties have stipulated that we can use the decision in that case in deciding this appeal. We take that stipulation to mean that we can consider the undisputed facts as considered in that decision in addition to the factual allegations made in the complaint in this case. The statement of facts in the body of this opinion is based on both sources. 2 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.2
¶ 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
2 Without filing an application in the superior court for involuntary treatment or accepting E.R. as a voluntary patient, the Vermont State Hospital could only hold E.R. for seventy-two hours after the physician’s certification. See 18 V.S.A. § 7508(d). Since no court order was sought, we conclude that E.R. must have been considered a voluntary patient. Although the record does not show conclusively whether E.R. was an adult, the facts indicate that his symptoms first arose in 2009 at the beginning of his sophomore year in college and his hospital treatment occurred over a year later. It is very likely he was an adult, but was still living with his parents. In the text, we have considered him to be an adult.
We recognize that his status as a voluntary patient seems inconsistent with some of the later facts, including his attempt to escape from the Vermont State Hospital. Inconsistencies of this type are not unusual in a complaint. 3 decompensation.”3 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
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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 by email at: JUD.Reporter@vermont.gov or by mail at: 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.
2016 VT 54
No. 2014-396
Carole Kuligoski, Individually and On Behalf of Supreme Court Michael J. Kuligoski, Mark Kuligoski and James Kuligoski On Appeal from Superior Court, Windham Unit, v. Civil Division
Brattleboro Retreat and Northeast Kingdom May Term, 2015 Human Services
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.
PRESENT: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Morris, Supr. J., Specially Assigned
¶ 1. DOOLEY, J. 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,1 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
1 Plaintiffs also brought an action against E.R., E.R.’s parents and E.R.’s grandparents seeking the same damages they seek in this action. See Kuligoski v. Rapoza, No. 42-2-113 Cacv, (Vt. Sup. Ct. May 13, 2015). The superior court in that case granted summary judgment for defendants and dismissed the action on May 13, 2015. The parties have stipulated that we can use the decision in that case in deciding this appeal. We take that stipulation to mean that we can consider the undisputed facts as considered in that decision in addition to the factual allegations made in the complaint in this case. The statement of facts in the body of this opinion is based on both sources. 2 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.2
¶ 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
2 Without filing an application in the superior court for involuntary treatment or accepting E.R. as a voluntary patient, the Vermont State Hospital could only hold E.R. for seventy-two hours after the physician’s certification. See 18 V.S.A. § 7508(d). Since no court order was sought, we conclude that E.R. must have been considered a voluntary patient. Although the record does not show conclusively whether E.R. was an adult, the facts indicate that his symptoms first arose in 2009 at the beginning of his sophomore year in college and his hospital treatment occurred over a year later. It is very likely he was an adult, but was still living with his parents. In the text, we have considered him to be an adult.
We recognize that his status as a voluntary patient seems inconsistent with some of the later facts, including his attempt to escape from the Vermont State Hospital. Inconsistencies of this type are not unusual in a complaint. 3 decompensation.”3 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.”
3 In psychiatry, decompensation constitutes the “failure to generate effective psychological coping mechanisms in response to stress, resulting in personality disturbance or disintegration, especially that which causes relapse in schizophrenia.” Oxford English Dictionary (Oxford University Press, 2015), https://perma.cc/B6FR-VVF8. 4 ¶ 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 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 5 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 6 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
7 ¶ 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: 8 (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
9 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.
10 ¶ 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,
11 [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 circumstances.
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. Id.
¶ 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 12 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 public’s eye.
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
13 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 child’s dangerous tendencies, because
it was the family in Johnson that was endangered, whereas the mother in Thompson was not
herself endangered and would be expected to supervise her son “for the remote benefit of a third
party.” Thompson, 614 P.2d at 737.
¶ 32. In Vermont, our most significant decision on the duty of mental health
professionals to third parties is Peck, 146 Vt. 61, 499 A.2d 422, a duty to warn case.4 Like
Tarasoff, Peck deals with the failure to warn an identified victim and expressed a broad general
duty of the mental health professional or institution to third parties affected by the conduct of the
patient. Unlike Tarasoff, the patient threatened the property, rather than the person, of the
plaintiff. Id. at 64, 499 A.2d at 424. In Peck, the plaintiffs sued a mental health agency for
damages to their property after their son set fire to their barn. Id. At the time of the incident, the
son was an outpatient of Counseling Service of Addison County and was living at home with his
parents. Id. at 63, 499 A.2d at 424. After a fight with his father, the son left home and went to
4 Peck is a 3 to 2 decision with no majority opinion. Justice Underwood concurred in the result but did not join the opinion of Justice Hill, which explained the rationale for reaching that result. Justice Underwood did not author a concurring opinion explaining why he disagreed with the rationale of Justice Hill’s opinion. The dissent authored by Chief Justice Billings, and joined by Justice Peck, argued that the mental health professional had no duty to third parties and the recognition of any such duty should be undertaken by the Legislature and not by this Court.
The plurality opinion of Justice Hill has been cited and quoted in part in later opinions of this Court without an explanation that it is not a majority opinion. See, e.g., Lenoci v. Leonard, 2011 VT 47, ¶ 15, 189 Vt. 641, 27 A.3d 694 (mem.); Smith v. Day, 148 Vt. 595, 597, 598, 538 A.2d 157, 158, 159 (1999). We have similarly done so here. To the extent that is necessary for the opinion reached herein, we adopt the opinion of Justice Hill. 14 the Counseling Service to speak with his therapist. Id. He told his therapist about the fight and
that “he didn’t think his father cared about him or respected him.” Id. At a following session,
the son stated that he was still angry with his father, and told his therapist that he “wanted to get
back at his father” by “burn[ing] down his barn.” Id. at 64, 499 A.2d at 424. After discussing
the consequences of the act, the son promised his therapist that he would not burn down the barn.
The therapist did not disclose these threats to the parents or any other staff members of
Counseling Service. Several days later, the son set fire to his parents’ barn, which was
completely destroyed. Id. at 63, 499 A.2d at 424. The parents claimed that the therapist had a
duty to protect them from their son’s violent behavior, that the therapist knew or should have
known that their son presented an unreasonable risk of harm to them, and that the therapist
breached that duty by failing “to take steps that were reasonably necessary to protect” them. Id.
at 64.
¶ 33. The Peck Court began its analysis with the Restatement (Second) of Torts § 315
(1965), which provides that a duty arises if: “(a) a special relation exists between the actor and
the third person which imposes a duty upon the actor to control the third person’s conduct, or (b)
a special relation exists between the actor and the other which gives to the other a right to
protection.” The Court concluded that “the relationship between a clinical therapist and his or
her patient ‘is sufficient to create a duty to exercise reasonable care to protect a potential victim
of another’s conduct,’ ” id. at 65, 499 A.2d at 425 (quoting Tarasoff, 551 P.2d at 343), even
though the level of control over an outpatient may be less than that exercised over
institutionalized patients. Id. The Court noted that “Vermont already recognizes the existence of
a special relationship between a physician and a patient that imposes legal duties on the
physician for the benefit of third persons,” citing statutes requiring doctors to warn others of
contagious diseases to protect the public health. Id. For example, 18 V.S.A. § 1004, which has
not been amended since the time of the Peck decision, provides that: “A physician who knows or
suspects that a person whom he or she has been called to attend is sick or has died of a 15 communicable disease dangerous to the public health shall immediately quarantine and report to
the health officer the place where such case exists . . . .” Accordingly, the Court saw no reason
why the same duty should not exist in a mental health setting. Id.
¶ 34. In imposing a duty on the therapist, the Court rejected the defendant’s arguments
that a mental health professional cannot predict future violent behavior and that physician-patient
privilege protects against disclosure of confidential information. Id. at 66, 499 A.2d at 425; see
also 12 V.S.A. § 1612(a). After quoting at length from Tarasoff, the Court noted that the trial
court found sufficient facts to demonstrate that the therapist knew or should have known the
defendant posed a threat to his parents and that the failure of the therapist to reveal that threat
“was inconsistent with the standards of the mental health profession.” Id. at 66, 499 A.2d at 425-
26. Ultimately, we held that “a mental health professional who knows or, based upon the
standards of the mental health profession, should know that his or her patient poses a serious risk
of danger to an identifiable victim has a duty to exercise reasonable care to protect him or her
from that danger.” Id. at 68, 499 A.2d at 427.
II. The Duty to Warn
¶ 35. Having set out the nature of duties for tort actions and the important sources of
law for defining the duties of mental health professionals to third parties injured by their patients,
we look at the specific duties alleged in plaintiffs’ complaint in this case. As we stated above,
the positions of the parties begin to differ when we look at the specific duties alleged. The
decisions from around the country reflect these differences. Although the central holding of
Tarasoff has been widely accepted around the country, the same is not true for extensions of the
duty beyond providing warnings. Further, courts in other jurisdictions are divided on how far to
extend the Tarasoff duty to warn, and the subsequent limitation on that duty expressed in
Thompson.
¶ 36. We first consider plaintiffs’ allegation that defendant, Brattleboro Retreat,
breached its duty to warn E.R.’s parents of the risk of his dangerous behavior and to train them in 16 how to handle him. In examining the duty of defendant, we put these claims together under the
general description of duty to warn and consider later whether separate duties are involved.
Courts differ when evaluating a claim of a duty to warn someone other than an identified victim.
As discussed previously, several courts have limited the duty to identifiable victims, or a class of
individuals whose injury is foreseeable because of their relationship or proximity to a
specifically identifiable victim. See, e.g., Dawe v. Dr. Reuven Bar-Levav & Assocs., P.C., 780
N.W.2d 272, 278 (Mich. 2010) (establishing duty to warn for mental health professionals when
patient makes threat of violence against “reasonably identifiable third person” and has apparent
intent and ability to carry out threat); Emerich v. Philadelphia Ctr. for Human Dev., Inc., 720
A.2d 1032, 1040-41 (Pa. 1998) (stating that psychotherapist has duty to warn only when specific
and immediate threat of serious bodily injury has been made against “specifically identified or
readily identifiable victim”). The reasoning is much the same in these decisions, as they reflect
the policies set forth by the California Supreme Court in Thompson. See, e.g., Fraser v. U.S.,
674 A.2d 811, 816 (Conn. 1996) (stating that “the interests of the mental health profession in
honoring the confidentiality of the patient-therapist relationship and in respecting the
humanitarian and due process concerns that limit the involuntary hospitalization of the mentally
ill” counsel against imposing “liability for harm to unidentifiable victims or unidentifiable
classes of victims” (citations omitted)). Many of these courts also rely on their existing
precedent in the area of negligence, citing the limitations on third-party liability already
recognized in their common law. Id. at 815-16 (observing that scope of liability in negligence to
injured third parties has not been enlarged by changes in tort law).
¶ 37. However, several other courts have held that a duty to warn is owed not only to
specifically identified or identifiable victims, but to foreseeable victims or to those whose
membership in a particular class—for example, those living with the patient—places them within
a zone of danger. See, e.g., Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185, 194-95 (D. Neb.
1980) (applying Nebraska law) (holding that if psychiatrist can reasonably foresee risk of harm 17 to plaintiffs or “class of persons” of which plaintiffs were members, he or she has duty to warn,
even if victims are not specifically identified); Naidu v. Laird, 539 A.2d 1064, 1073 (Del. 1988)
(stating psychiatrist has duty to warn “potential victims or a class of potential victims” when “in
accordance with the standards of the profession,” psychiatrist knows or should know that
patient’s “dangerous propensities present an unreasonable risk of harm to others”); Schuster v.
Altenberg, 424 N.W.2d 159, 165 (Wis. 1988) (noting that psychotherapist’s duty to warn “is not
limited by requirement that threats made be directed to an identifiable target” as it must simply
be foreseeable that omission “may cause harm to someone”).
¶ 38. Plaintiffs ask that we construe Peck broadly to find that E.R.’s parents should
have been warned of his propensities in order to protect third parties. Defendants, on the other
hand, focus on the language in our holding that specifies an “identifiable victim,” a factor absent
here. They argue that Peck is specifically limited to the circumstance where there is an
identifiable victim and should be interpreted to hold that there is no duty to warn in the absence
of such a victim. We note that none of our more recent cases have expanded the duty articulated
in Peck to unforeseeable victims. Nevertheless, we agree with plaintiffs that the specific liability
holding of Peck is based on the facts and circumstances that were before the Court. Thus, while
Peck finds a duty to warn an identifiable victim, it does not hold that liability is limited to those
circumstances and in fact draws on public health cases where there is no identified victim.5 In
5 Peck relied in part on the decision of a New Jersey court in McIntosh v. Milano, 403 A.2d 500 (N.J. Super. Ct. Law Div. 1979). That decision drew heavily on the duty a physican has to the public when encountering a case of a communicable disease to explain the duty of a mental health professional with a dangerous patient. The court reasoned:
To summarize, this court holds that a psychiatrist or therapist may have a duty to take whatever steps are reasonably necessary to protect an intended or potential victim of his patient when he determines, or should determine, in the appropriate factual setting and in accordance with the standards of his profession established at trial, that the patient is or may present a probability of danger to that person. The relationship giving rise to that duty may be found either in that existing between the therapist and the patient, as was alluded to in Tarasoff II or in the more broadly based obligation a 18 saying this, we are also cognizant of the fact that Peck was decided thirty years ago, before
modern trends in this area, such as the Restatement (Third) of Torts § 41.
¶ 39. The dissent cites a number of cases that it argues show that the majority rule is
that there is no duty to warn anyone other than an identified victim. Post, ¶ 85. In fact, most of
these cases, including Tarasoff, do not contain such a limitation. As we set out above, Tarasoff
contains this explanation of the duty: “Thus it may call for him to warn the intended victims 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 circumstances.” Tarasoff, 551 P.2d at 342.
¶ 40. Other cases, including Fraser, 674 A.2d at 817—a duty to treat and not a duty to
warn case—acknowledge that the duty can extend to persons in the zone of danger, one of the
bases for this decision. The court in Estates of Morgan v. Fairfield Family Counseling Center,
1997-Ohio-194, 673 N.E.2d 1311, 1328, explicitly reserves the issue: “We need not determine at
this time whether and to what extent the readily identifiable victim rule should attach in a failure-
to-warn case. The case sub judice does not involve any allegation that [the defendants were]
negligent in failing to warn [the plaintiff’s] family.” In Emerich, 720 A.2d at 1040 n.8, the court
stated: “we are not required to address the related issue of whether this duty to warn may be
discharged by notifying relatives of the victim, other individuals close to the victim, or the
police.” In fact, the only case cited by the dissent that recognizes the Tarasoff duty but limits the
required warning to an identified victim is Eckhardt v. Kirts, 534 N.E.2d 1339 (Ill. Ct. App.
1989), a twenty-seven year old intermediate appellate court decision. The dissent asserts here
practitioner may have to protect the welfare of the community, which is analogous to the obligation a physician has to warn third persons of infectious or contagious disease.
Id. at 511-12 (footnote omitted).
The communicable disease cases continue to be strong indicators of an extended duty. For example, in C.W. v. Cooper Health System, 906 A.2d 440, 450 (N.J. Super. Ct. App. Div. 2006), the court that decided McIntosh held that a physician owed a duty to a patient and to others, specifically the patient’s partner and child, to disclose the patient’s HIV-positive status.
19 that a holding that the duty to warn extends beyond the identified victim represents an
unacknowledged minority position. We reject that assertion because it is not true.
¶ 41. We agree that the Peck holding does not apply to a duty to warn the general
public. The complaint here expresses a much narrower duty: to warn E.R.’s caretakers, here, his
parents. It alleges that the warnings would have informed them such that they could have
properly supervised E.R. Any warning to E.R.’s parents would not have been predicated on their
membership in the public at large, however, and would have been predicated on their assumption
of custody and caretaking responsibilities of E.R., even though an adult, from the Retreat. For
two reasons, we conclude that the Retreat had a duty to give such warnings.
¶ 42. The first reason involves the unique circumstances of this case. The complaint
alleges that the parents had assumed the role of E.R.’s caretakers even though he was an adult.
The extended record shows that the parents were directly involved in E.R.’s care and treatment
from the first time that he showed symptoms of mental illness and were involved in controlling
his conduct. This meant that they had assumed responsibilities, the discharge of which could be
affected by the information they received. For example, the limited facts indicate that in a
discharge conference, Retreat staff told E.R.’s mother that she should give E.R. his medication,
but also indicate that E.R. stopped taking medication on his own after discharge. A complete
warning of the effect of E.R. discontinuing the medication may have affected the parents’ degree
of involvement in ensuring E.R. took his medication.
¶ 43. Because the parents were monitoring E.R.’s needs and treatment, and were
involved in his discharge, they were available to receive information on his continuing need for
treatment and the actions that should have been taken based on his behavior. In fact, the
complaint alleges that the Retreat’s mental health professional, who was aware of the risk that
E.R. would suffer decompensation and stop his medications if discharged, had “discussed
discharge with E.R.’s mother” before determining such a course was possible. Moreover, before
the discharge, the Retreat made an aftercare treatment plan “with E.R. and his parents”. The 20 complaint thus supports an inference that if E.R. had not had parents into whose care he could be
released, parents who could monitor his symptoms and medication intake, Brattleboro Retreat
would not have authorized his release.
¶ 44. Again, we emphasize that we are dealing with a case that was dismissed on the
pleadings with no factual development.6 We conclude that by transferring custody of a patient
with a psychotic disorder to caretakers whom they knew lacked psychiatric training and
experience, the Retreat owed a duty of care to provide sufficient information to the parents so
they could fully assume their caretaker responsibilities to assist E.R. and protect against any
harmful conduct in which he might engage. In adopting this duty definition, we are relying upon
Peck, as well as precedents from other jurisdictions and the Restatement (Second) of Torts,
§§ 315 and 319. Although we have discussed it above for background, we have not adopted and
relied upon § 41(b)(4) of the Restatement (Third) of Torts. We recognize that there are contrary
decisions from some of our sister states, but generally we find them distinguishable. For
example, in Matter of Votteler’s Estate, 327 N.W.2d 759, 760 (Iowa 1982), the plaintiff was
injured when a patient suffering from a serious mental illness ran over her with a car. The
plaintiff alleged that the patient’s psychiatrist was negligent in failing to warn the patient’s
husband, a friend of the plaintiff, of the danger the patient presented to the public “so he could
have protected [the] plaintiff.” Id. In its ruling, the Iowa Supreme Court held that the Tarasoff
rule could not be “stretched” to support finding a cause of action against a psychiatrist in these
circumstances, as such a theory would “attenuate[] the Tarasoff rule beyond the breaking point.”
Id. at 761. However, the decision was based on the particular facts of the case. Unlike in
6 The dissent goes through some of the known facts apparently to assert that the Retreat took many steps to inform the parents of the risk and how to deal with it, but those steps were not successful in controlling the risk of E.R.’s violent actions, and demanding any more involves the imposition of unreasonable policy judgments. Post, ¶¶ 97-100. At this point, the dissent’s concerns are premature and speculative because no facts are established for purposes of the motion to dismiss. It may be that the facts will show that the Retreat completely explained the risks and how parents should respond to them. It may be otherwise as plaintiffs allege. Neither assessment is possible on the very limited record before us. 21 Tarasoff, the record “lack[ed] any basis for finding the therapist knew of the danger” the patient
presented, id. at 762, but instead, contained overwhelming evidence to suggest the plaintiff was
herself well aware of the patient’s violent propensities; indeed, the patient had told the plaintiff
on multiple occasions that “she would kill her.” Id. at 761.
¶ 45. By contrast, the complaint here is replete with allegations that staff members at
Retreat were well aware of E.R.’s capacity for violence. Upon his admission at the Retreat,
E.R.’s records from the Vermont State Hospital were reviewed, including the findings by his
intake physician that E.R. was “clearly a danger to others” and would be a “danger to his own
family” if released. He verbalized “homicidal ideation” toward staff only nine days after his
admission to the Retreat, and throughout his stay, continued to have auditory hallucinations
which commanded him to kill himself or others. E.R.’s behavior was so aggressive that his
psychiatrist adopted an Alternative Low Stimulation Area (ALSA) treatment plan, which
involves “placing patients who are verbalizing or demonstrating they are unsafe in a special
area” that is staff-intensive and free from any objects that can be used to harm the self or others.
Indeed, it appears from the complaint that E.R. was kept in ALSA for all but the first nine days
of his stay at the Retreat.
¶ 46. Because the case never went beyond the complaint stage, there is no allegation
that the parents were aware of E.R.’s risk of danger such that they could be charged with
“knowledge of the danger as a matter of law” sufficient to nullify any duty to warn. Id. at 762.
The expanded record shows that the state of the parents’ knowledge is strongly disputed.
¶ 47. A second reason for finding a duty to warn in this case is that E.R.’s parents fell
within the “zone of danger” from E.R.’s conduct. While there is no allegation that E.R. ever
threatened his parents, plaintiffs’ complaint alleged that by failing to warn the parents, the
“Brattleboro Retreat needlessly endangered the safety of third parties, including, not limited to
the Plaintiffs.” Moreover, it is alleged that E.R. specifically threatened his caretakers, and the
parents were to become his caretakers after his discharge from the Retreat. 22 ¶ 48. The duty to warn those in the zone of danger was addressed by the Arizona
Supreme Court in a case very similar to this one. See Hamman v. Cty. of Maricopa, 775 P.2d
1122, 1123 (Ariz. 1989). In Hamman, the patient was brought to an emergency psychiatric
center because of violent and other “abnormal behavior.” His parents expressed fear that he
“would either be killed or kill somebody” and reported that they maintained constant supervision
over him. Id. After speaking with a doctor, the doctor refused to admit the patient to the
hospital, but prescribed medication and advised his mother to take him to follow-up care at a
medical center. Id. at 1124. One morning, the patient refused to take his medicine. Later that
day, he attacked his father with an electric drill.
¶ 49. The parents filed a claim against the hospital for negligence, claiming that the
doctor owed them a duty to reasonably diagnose and treat their son’s condition and that they
reasonably relied upon the doctor’s advice that their son was harmless. In assessing the scope of
the duty, the court rejected the narrow approach of requiring an identifiable victim but also
cautioned against adopting a rule that is “too inclusive, subjecting psychiatrists to an
unreasonably wide range of potential liability.” Id. at 1127. The court concluded,
If indeed [the doctor] negligently diagnosed [the patient] as harmless, the most likely affected victims would be [his parents]. Their constant physical proximity to [the patient] placed them in an obvious zone of danger. [His parents] were readily identifiable persons who might suffer harm if the psychiatrist was negligent in the diagnosis or treatment of the patient. The fact that [the patient] never verbalized any specific threats against [his parents] does not change the circumstances that, even without such threats, the most likely victims of the patient’s violent reaction would be [his parents].
Id. at 1128 (emphasis added); see also Div. of Corr. v. Neakok, 721 P.2d 1121 (Ala. 1986),
overruled on other grounds by Dep’t of Corr. v. Cowles, 151 P.3d 353 (Ala. 2006) (finding that
state agencies had duty to warn residents of small community of parolee’s dangerous
propensities, particularly victims, as one was foreseeable and others were in zone of danger).
We find Hamman persuasive and follow its reasoning.
23 ¶ 50. In recognizing a duty to warn, we distinguish this case from Thompson, where the
mother of the juvenile offender was not foreseeably endangered, as the offender’s threats were to
children. By contrast, E.R.’s parents were in the zone of danger, as E.R.’s dangerous
propensities were not targeted towards any one class of individuals. If E.R. had harmed his
parents, we may have easily concluded that the Retreat owed them a duty to warn of his violent
tendencies; if he directed violence towards a member of the general public, the question becomes
harder. If defendant owed a duty to the parents and breached that duty, resulting in harm to an
unidentifiable third party, is defendant liable?
¶ 51. To answer this question, we look to cases involving a physician’s duty to warn a
patient, the breach of which results in injury to a third party. Most courts have recognized that
physicians owe a duty to their patients to warn them about the hazards of driving on certain
medications and that, when the physician breaches that duty, causing harm to a third party, he or
she is liable for that failure to warn. See, e.g., Taylor v. Smith, 892 So.2d 887, 893-94, 896 (Ala.
2004) (holding that duty of care owed by physician to his patient “extends to third-party
motorists who are injured in a foreseeable automobile accident with the patient that results from
the [physician’s] administration of methadone” and citing cases from Maine, Michigan, New
Mexico, Oregon, Texas, and Wisconsin that have imposed similar duty to warn); see also
Restatement (Third) of Torts § 41 cmt. h. But see Jarmie v. Troncale, 50 A.3d 802, 810 (Conn.
2012) (holding that physicians owe no duty to warn patients not to drive for benefit of third
parties because “Connecticut precedent does not support it, the plaintiff was an unidentifiable
victim, public policy considerations counsel against it, and there is no consensus among courts in
other jurisdictions, which have considered the issue only rarely”). We conclude, based on
existing precedent and modern trends in negligence law, that the Retreat had a duty to warn
E.R.’s parents as individuals in the “zone of danger” of E.R.’s dangerous propensities.7
7 Again, we do not adopt Restatement (Third) of Torts § 41(b)(3) to support this holding. 24 ¶ 52. As we noted above, plaintiffs’ complaint alleges two separate duties—a duty to
warn and a duty to train. The complaint described the duty to warn as a duty to inform E.R.’s
parents that “he posed a risk to the public including themselves.” It described the duty to train as
the duty to instruct the parents “to supervise him, how to monitor and manage his medications
intake, to effectively recognize when medications were being avoided and to effectively respond
so that measures necessary and appropriate to protect potential victims could be implemented.”
We conclude that the duty to train is better recast as a duty to provide the parents with particular
information—that is, a duty to inform—to be determined in the context of the case before the
trial court. It would be premature for us to define the exact extent of the duty when the case is
still at the complaint stage.
¶ 53. We have initially analyzed the duty to inform with respect to the Retreat.
Plaintiff’s complaint alleges a similar duty to warn with respect to NKHS. Although the two
entities had different responsibilities, we see no reason to differentiate between them in defining
the duty that each owed. Thus, we hold that NKHS had the same duty to warn, recast above as a
duty to provide particular information, as the Retreat did.
¶ 54. As we discussed briefly above, defendants also allege that plaintiffs’ duty-to-
inform counts should be dismissed because plaintiffs cannot show the element of causation.
Duty is a legal question, and is therefore appropriate for our consideration on an appeal from a
motion to dismiss. We cannot say the same about the element of causation. Until there is factual
development on the extent to which defendants may have fallen short of their duty, if any, and
were negligent in doing so, we cannot determine whether plaintiffs can meet their burden of
showing that defendants’ negligence was a proximate cause of plaintiffs’ damages. We cannot
dismiss the complaint based on the absence of causation.
¶ 55. Finally as to the duty to inform, we must address the confidentiality arguments
raised in the briefs of defendant NKHS and amici curiae Vermont Council of Developmental and
Mental Health Services, Inc., Disability Rights Vermont, and the Vermont Association of 25 Hospitals and Health Systems. Defendant NKHS and amici curiae argue that expansion of the
standards under which psychotherapists must disclose protected health information without
consent beyond those imposed in Peck violates state and federal law and contrary to policy goals
of encouraging individuals to seek mental health treatment. In particular, defendant and amici
curiae note that Vermont has codified the physician-patient privilege in 12 V.S.A. § 1612(a),
which precludes the disclosure of confidential information absent patient permission or
authorization from an express provision of law. Amici curiae argue that while Peck modified
§ 1612 to require disclosure when a mental patient has threatened “serious harm to an identified
victim,” 146 Vt. at 67, 499 A.2d at 426, no express provision of Vermont or federal law permits
disclosure under the broad terms of Restatement (Third) of Torts § 41(a)—also urged by
plaintiffs—when a patient poses “risks” to the safety of the public at large.
¶ 56. Amici curiae also note that other Vermont statutes, particularly 18 V.S.A.
§ 1852(7) and § 7103, protect from disclosure clinical information identifying current or former
hospital patients. See id. § 7103(a) (“All certificates, applications, records, and reports . . .
directly or indirectly identifying . . . an individual whose hospitalization or care has been sought
or provided under this part, together with clinical information relating to such persons shall be
kept confidential and shall not be disclosed by any person”); id. § 1852(a)(7) (“The patient has
the right to expect that all communications and records pertaining to his or her care shall be
treated as confidential. Only medical personnel, or individuals under the supervision of medical
personnel, directly treating the patient, or those persons monitoring the quality of that
treatment . . . shall have access to the patient’s medical records.”). Finally, amici curiae suggest
that an expansion of the duty to warn would violate the confidentiality provisions established in
the Privacy Rule adopted pursuant to the Health Insurance Portability and Accountability Act
(HIPAA), 42 U.S.C. §§ 1320d et seq., which applies to the information acquired by community
26 mental health agencies across the United States and which is exempt from any public policy
exception created by this Court.8
¶ 57. We recognize that although defendants and amici have accepted Peck’s disclosure
requirements as a baseline beyond which we cannot go, that decision gave very limited
consideration to binding confidentiality requirements. The Peck Court noted that the Legislature
had created certain exceptions to the statutory patient’s privilege and that an exception similar to
that sought for mental health professionals to warn identified potential victims existed for
lawyers and, consequently, created by judicial decision an exemption for mental health
professionals. 146 Vt. at 67-68, 499 A.2d at 426. To ensure that the disclosure requirements we
have adopted fully comply with confidentiality requirements, we are reexamining the issue here
rather than relying upon Peck.
¶ 58. Our conclusion is that the aforementioned statutes and regulations do not bar
plaintiffs’ failure-to-inform cause of action in this case for three reasons. First, while it is true
that 12 V.S.A. § 1612 and the more comprehensive Vermont Rule of Evidence 503 prevent
physicians from disclosing health information or history, the statute codifies an evidentiary
privilege, thus limiting its application to judicial proceedings. As such, it does not require the
Retreat to refuse to warn E.R.’s parents of E.R.’s likelihood of violent actions.9 See 1
8 In its brief to this Court, amicus curiae The Vermont Association of Hospitals and Health Systems also notes that under section five of the American Medical Association’s (AMA) Code of Medical Ethics, disclosure of confidential information is permitted only when a patient “threatens to inflict serious physical harm to another person or to him or herself and there is a reasonable probability that the patient may carry out the threat.” Code of Ethics of the American Medical Association, Opinion 5.05 (2014-2015), https://perma.cc/5QPE-HYU3. We are mindful however, of the fact that ethical standards, whether promulgated by the AMA, the Vermont Medical Society, or Vermont Psychiatric Association, are “aspirational in nature and not enforceable by law.” Bryson v. Tillinghast, 749 P.2d 110, 114 (Okl. 1988); accord Caldwell v. Chauvin, 464 S.W. 3d 139, 156 (Ky. 2015). 9 Peck accepted, without analysis, that 12 V.S.A. § 1612(a) prohibited disclosure outside of judicial proceedings and held that the privilege could be waived “under appropriate circumstances” by judicial decision. Peck, 146 Vt. at 67, 499 A.2d at 426. As the text states, the statute does not prevent a mental health professional from disclosing patient information as part 27 McCormick on Evid. § 72.1 (7th ed.) (“[T]rue rules of privilege operate generally to prevent
revelation of confidential matter within the context of a judicial proceeding . . . . [They] do not
speak directly to the question of unauthorized revelations of confidential matter outside the
judicial setting, and redress . . . must be sought in the law of tort or professional responsibility.”
(footnotes omitted)).
¶ 59. Second, by their own terms, each of the confidentiality statutes cited by amici
curiae exempt the situation here: 18 V.S.A. § 1852(a)(7) prohibits unauthorized access to patient
records only, rather than general information for warning purposes, while id. § 7103(b) explicitly
states that “nothing in this section shall preclude disclosure . . . of information concerning
medical condition to the individual’s family.” (emphasis added). Indeed, where the patient’s
family will serve as caretakers for the mentally ill patient, we see no policy objection to the
family members being fully knowledgeable of the patient’s condition and history.
¶ 60. Finally, the federal regulations governing HIPAA’s Privacy Rule, relied upon by
amici, also carve out two exceptions relevant to the disclosure obligation imposed in this
decision. The first is a dangerous patient exception to the confidentiality requirement intended to
“avert a serious threat to health or safety”:
(1) Permitted disclosures. A covered entity may, consistent with applicable law and standards of ethical conduct, use or disclose protected health information, if the covered entity, in good faith, believes the use or disclosure:
(i)(A) is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and
(B) is to a person or persons reasonably able to prevent or lessen the threat . . . .
45 C.F.R. § 164.512(j) (emphasis added). In this case, the disclosure requirement is imposed to
avert a serious threat to health or safety and under circumstances that meet the specific language
of a warning to the patient’s family because this is not an in-court disclosure. We do not consider whether a waiver of the privilege, if it applied, is possible and appropriate. 28 of (i)(A) and (B). The second exception is for emergency circumstances, allowing limited use
and disclosures:
If the individual is not present, or the opportunity to agree or object to the use or disclosure cannot practicably be provided because of the individual’s incapacity or an emergency circumstance, the covered entity may, in the exercise of professional judgment determine whether the disclosure is in the best interests of the individual and, if so, disclose only the protected health information that is directly relevant to the [family member, other relative, or close personal friend’s] involvement with the individual’s care or payment related to the individual’s health care.
Id. § 164.510(b)(3); see also Office for Civil Rights, A Health Care Provider’s Guide to the
HIPAA Privacy Rule: Communicating with a Patient’s Family, Friends, or Others Involved in
the Patient’s Care 2, https://perma.cc/9596-MXWK.
¶ 61. As discussed above, plaintiffs’ complaint alleges sufficient facts to indicate that
the Retreat was well-aware of E.R.’s propensity for violence, particularly when off his
medication, and that E.R.’s parents likely underestimated the degree of danger E.R. posed to his
caretakers and to the public. Similarly, it is evident from the facts that E.R. was sufficiently
incapacitated such that disclosure could not be practicably authorized and that information about
his condition and violent behavior would have been “directly relevant” to the care his parents
provided him. We recognize that both of these subsections permit, rather than mandate,
unauthorized disclosure in the aforementioned instances, as well as that both predicate the
admissions in the medical entity’s good faith belief and professional judgment that disclosure
was necessary. In essence, by this decision, we are imposing the mandate as a matter of tort law
in circumstances where the mental health professionals and institution are authorized to disclose
under HIPPA.
¶ 62. In reaching our decision, we recognize the “interest in safeguarding the
confidential character of psychotherapeutic communications” as argued by the dissent. Post,
¶ 85. We are bound by the direction of Peck: “In the same manner that due care must be
exercised in the therapist’s determination of what steps may be necessary to protect the potential 29 victim of a patient’s threat of harm, so too must due care be exercised in order to insure that only
that information which is necessary to protect the potential victim is revealed.” 146 Vt. at 68,
499 A.2d at 426-27. Based on the above analysis, we hold that both the Retreat and NKHS had a
duty to provide information to E.R.’s parents, both to warn them of E.R.’s risk of violence to
themselves and others and to advise them as caretakers of E.R. on how to manage E.R.’s
conduct. We stress that we are only defining the duty owed by the mental health services
providers, and allowing this action to proceed to determine whether defendants breached their
duties, and if so, were negligent in doing so. We reverse the dismissal of Counts II, III and V of
plaintiffs’ complaint and remand for those counts to proceed.
III. Duty to Protect
¶ 63. We next consider plaintiffs’ other counts, starting with those against the Retreat.
The complaint contains two additional counts with respect to this defendant: (1) that defendant
negligently discharged E.R. and this discharge was the proximate cause of plaintiffs’ damages;
and (2) defendant undertook to render a service to E.R. necessary to protect third parties, failed
to exercise due care in the performance of its undertaking, and its negligence was a proximate
cause of the damages to plaintiffs. Plaintiffs allege these counts relying upon the general duty
expressed in Tarasoff and Peck and the duty described in § 41(b)(4) of the Restatement (Third)
of Torts. With respect to the second of these duties—that is, to exercise due care in the
performance of an undertaking—plaintiffs also rely on § 324A of the Restatement (Second) of
Torts.10
¶ 64. Relying principally on our decision in Sorge, the Retreat argues that these duties
do not exist or do not apply here. We begin with at the sources of law as argued by the parties.
¶ 65. We look first at Sorge, the most relevant of our precedents. In Sorge, one of the
plaintiffs was injured after being assaulted by a juvenile offender who was in the custody of the
10 This duty is also contained in the Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 43(a) (2012). 30 Vermont Department of Social and Rehabilitation Services (SRS). The victim and his wife filed
suit against the State, alleging that SRS was negligent in failing to adequately supervise and
control the juvenile and that, as a result of the negligence, the victim sustained injuries. The
plaintiffs claimed that SRS was aware of the juvenile’s “history of violent, assaultive and
delinquent behavior,” but that SRS nonetheless placed him in the temporary custody of his
mother for the weekend and she “was either unlikely or incapable of adequately supervising
him.” Sorge, 171 Vt. at 173, 762 A.2d at 818.
¶ 66. We began by summarizing the factors to be considered in determining whether a
governmental body has a duty of care to a specific person, beyond its duty to the public at large:
(1) whether an ordinance or statute sets forth mandatory acts clearly for the protection of a particular class of persons, rather than the public as a whole; (2) whether the government has actual knowledge of a condition dangerous to those persons; (3) whether there has been reliance by those persons on the government’s representations and conduct; and (4) whether failure by the government to use due care would increase the risk of harm beyond its present potential.
Id. at 174, 762 A.2d at 819. The plaintiffs conceded that there was no specific statutory
provision mandating protection for the victim or any other particular class of persons, arguing
instead that because SRS’s failure to control the juvenile resulted in harm, liability should be
imposed on the State. The plaintiffs further contended that § 319 of the Restatement (Second)
creates an exception for “persons having dangerous propensities” that extends beyond the duty to
warn and imposes an obligation to control an offender for the protection of the public. This
section provides: “One who takes charge of a third person whom he knows or should know to be
likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care
to control the third person to prevent him from doing such harm.” Restatement (Second) of
Torts § 319. Thus, the section creates an exception for cases where a “special relationship”
exists between the State and the juvenile.
31 ¶ 67. We rejected both arguments. We found the first theory at odds with the principle
espoused in both Peck and Restatement (Second) of Torts § 315 that “[g]enerally, there is no
duty to control the conduct of another in order to protect a third person from harm.” Sorge, 171
Vt. at 176, 762 A.2d at 819. We also found the “special relationship” theory to be inconsistent
with the goals of rehabilitation and reunification underlying both juvenile and adult detention
programs. Id. at 177-78, 762 A.2d at 820-21; see also Rivers v. State, 133 Vt. 11, 14, 328 A.2d
398, 400 (1974) (emphasizing rehabilitative goals of release of inmates on probation or parole,
and stating that liability premised on duty of State to third parties harmed during inmate’s release
on weekend pass “runs dangerously parallel to the arguments for preventative detention that
represent an overriding of constitutional limitations”); Finnegan v. State, 138 Vt. 603, 606, 420
A.2d 104, 105 (1980) (holding that escaped prisoner’s negligence cannot be transferred to State).
We further observed that the § 319 exception had been rejected by a number of other states “that
have recognized that most juvenile and adult programs dealing with persons committed to the
custody of the State are intended to rehabilitate conduct rather than control it.” Sorge, 171 Vt. at
177-78, 762 A.2d at 820-21.
¶ 68. Importantly, we stated that for § 319 to apply, the State’s purpose in assuming
custody of an individual “must explicitly be to control that person” and that “attempts to exercise
that control must be consistent with the specific objective of insulating a person having
dangerous propensities from uncontrolled contact with others whom the State knows or has
reason to know are likely to be harmed by the person the State intends to isolate.” Id. at 180, 762
A.2d at 822-23. This is true for both public entities, like those at issue in Peck and Sorge, as well
as private institutions, like defendants here. See id. at 178, 762 A.2d at 821.
¶ 69. Returning to plaintiffs’ theory of duty and liability in this case, we can find no
jurisdiction that has adopted Restatement (Third) of Torts § 41(b)(4). The Reporter’s Notes to
§ 41(b)(4) cite cases from seven jurisdictions that have adopted a duty commensurate with that in
§ 41(b)(4) and broad enough to support the counts included in plaintiffs’ complaint here. As 32 defendant points out, many of these decisions have been superseded by statutes that narrow the
duty.11 Two cases in particular are helpful to understanding arguments for a broad expression of
duty.
¶ 70. The first is Perreira v. State, 768 P.2d 1198 (Colo. 1989), a 4-3 decision from the
Colorado Supreme Court. In that case, a police officer was shot and killed by a former mental
patient who had been recently released from involuntary commitment to a mental institution.
The officer’s spouse brought a wrongful death action against the state, the psychiatric hospital,
and the treating psychiatrist, alleging that the psychiatrist was negligent in releasing the patient.
The court held that:
[W]hen, as here, a staff psychiatrist of a state mental health facility is considering whether to release an involuntarily committed mental patient, the psychiatrist has a legal duty to exercise due care, consistent with the knowledge and skill ordinarily possessed by psychiatric practitioners under similar circumstances, to determine whether the patient has a propensity for violence and would thereby present an unreasonable risk of serious bodily harm to others if released from the involuntary commitment, and, further, that in discharging this legal duty the psychiatrist may be required to take reasonable precautions to protect the public from the danger created by the release of the involuntarily committed patient, including the giving of due consideration to extending the term of the patient’s commitment or to placing appropriate conditions and restrictions on the patient’s release.
Id. at 1200. The court reached that result primarily by relying upon §§ 315 and 319 of the
Restatement (Second) of Torts. Id. at 1208-09, 1211. The court also concluded that given the
psychiatrist’s knowledge of the patient’s condition and conduct, predictions of future
dangerousness were within the professional’s expertise to a reasonable standard of accuracy. Id.
at 1216-17. The court recognized the patient’s loss of liberty from commitment but did not
conclude that the liberty loss should be elevated above the safety of others. Id. at 1217-18. It
found the duty of care to third parties consistent with that otherwise imposed on a mental health
11 The presence of superseding statutes in many jurisdictions has made many judicial decisions irrelevant to the current law such that the subject is now controlled primarily by legislation. 33 professional. Id. at 1218-19. Finally, it rejected the claim that the duty is inconsistent with the
requirement that institutionalization be used only when all lesser-restrictive alternatives are
inadequate, as well as the argument that it would lead to over-commitment by mental health
professionals to avoid tort liability. Id. at 1219-20.
¶ 71. In Estate of Morgan, the Ohio Supreme Court, also by a 4-3 decision, reached the
same result in the context of a voluntary outpatient who had received therapy and medication
from a community mental health center and thereafter shot and killed his parents and injured his
sister. The plaintiffs alleged the mental health professionals were negligent in the treatment they
provided. The court relied upon Restatement (Second) of Torts §§ 315 and 319 and Tasaroff in
finding a broad duty. Id. at 1319-22. The court found that the defendants had sufficient control
over the patient’s behavior in the outpatient setting—or could acquire that control—to support a
broad duty of care. Id. at 1323-25. It found that although mental health professionals encounter
difficulty in predicting dangerousness, the standard of care is based on their ability to do so with
limitations. Id. at 1325. It also found, as the Court did in Perreira, that the duty of care would
not lead to excessive institutionalization of patients. Id.
¶ 72. The decisions contrary to Perreira and Morgan tend to rely upon the possible
adverse consequences of recognizing a duty. The opposing arguments are captured in a quote
from Sherrill v. Wilson, 653 S.W.2d 661, 664 (Mo. 1983), a case in which a patient was given a
two day pass from a mental institution, during which he shot another person:
The treating physicians, in their evaluation of the case, well might believe that [the patient] could be allowed to leave the institution for a prescribed period and that his release on pass might contribute to his treatment and recovery. We do not believe that they should have to function under the threat of civil liability to members of the general public when making decisions about passes and releases. The plaintiff could undoubtedly find qualified psychiatrists who would testify that the treating physicians exercised negligent judgment, especially when they are fortified by hindsight. The effect would be fairly predictable. The treating physicians would indulge every presumption in favor of further restraint, out of fear of being sued. Such a climate is not in the public interest. 34 See also Restatement (Third) of Torts § 41, cmt. g (quoting Sherrill). We look to two decisions
that specifically reject the holdings of Perreira and Morgan to explain this rationale.
¶ 73. In Leonard v. State, 491 N.W.2d 508 (Iowa 1992), which specifically rejected the
holding of Perreira, the court applied § 319 of the Restatement (Second) of Torts, but held that it
created a duty to protect only “reasonably foreseeable victims” and not members of the public
generally. Id. at 511. The Iowa Supreme Court quoted Sherrill and indicated concern about the
“limitless liability” created if the mental health professional’s duty extended to the public
generally, concluding that the victim’s interest is outweighed by the harm to the public if
“physicians were subject to civil liability for discharge decisions.” Id. at 512. The Iowa high
court also concluded that liability for discharge of a patient would chill the physician’s decision-
making and threaten the integrity of the civil commitment system. Id.
¶ 74. In Adams v. Board of Sedgwick County Commissioners, 214 P.3d 1173 (Kan.
2009), which reinforced an earlier decision of the Kansas Supreme Court, Boulanger v. Bol, 900
P.2d 823 (Kan. 1995), the court specifically rejected the Ohio Supreme Court’s holding in
Morgan. In Boulanger, the Kansas high court had concluded that a mental health professional
has no duty to third parties who are injured by an attack from a released voluntary patient, and no
duty to initiate an involuntary commitment proceeding. Adams, 214 P.3d at 1184 (citing
Boulanger, 900 P.2d at 823). The Court in Adams reiterated this holding, particularly differing
with the Morgan analysis that the duty to the patient and the duty to third parties are the same.
Id. It also expressed concern as to whether the policy of holding patients in the least restrictive
environment would be consistent with a broad liability rule. Id.
¶ 75. Here, the parties’ arguments, joined by amicus curiae representing the mental
health provider community, mirror the arguments in the cases described above. The briefs
provide us with cites to, and excerpts from, articles and studies that support or oppose the claim
that mental health provider liability of the type sought here will cause an increase in unjustified
35 commitments and abandonment of treatment-in-the-least-restrictive-environment requirement, as
well as the claim that mental health professionals cannot predict dangerousness with sufficient
accuracy to act on their prediction. While these studies inform our decision, we do not find
sufficient consensus to act primarily on them. They do suggest however, that whatever decision
we reach in this case, the liability issues are appropriate for legislative action, as has happened in
many other states, to consider more thoroughly the policy arguments and evidence.
¶ 76. Returning to the parties’ arguments, both plaintiffs and defendants contend that
we have essentially decided this case with respect to the duty not to release, with plaintiffs
relying upon the broad statement of duty in Peck and defendants relying upon the limitations on
duty imposed by Sorge. We conclude that defendants have the stronger support of this aspect of
the arguments. It would be difficult for us to reconcile the holding in Sorge with a holding that
the Retreat had a duty not to release E.R. as a matter of public protection. In saying this, we
specifically reject reliance on the Restatement (Third) of Torts § 41(b)(4)’s special rule for
mental health professionals. We conclude that if mental health professionals have a broad duty
of public protection to institutionalize patients who may be dangerous, child protection workers
would have a similar duty to institutionalize a juvenile who may be dangerous to the public. Our
decision in Sorge rejects such a duty.
¶ 77. We are also reluctant to impose on mental health professionals a duty to third
persons generally to seek to prevent the release of a voluntary patient. We are concerned by the
broad scope of such a duty and its consequences on the mental health system. See 18 V.S.A.
§ 7251(3); In re R.L., 163 Vt. 168, 173, 657 A.2d 180, 184 (1995) (stating that this Court
requires consideration of voluntary alternatives first before resorting to an involuntary order
because involuntary treatment for mental illness is a massive curtailment of liberty often
resulting in social stigmatization (quotation omitted)). In Sorge, we recognized the conflict
between the state’s obligation to rehabilitate the juvenile involved and the obligation to protect
the public. 171 Vt. at 177, 762 A.2d at 820. We resolved that conflict decisively in favor of 36 rehabilitation in a non-institutional setting. Consistent with Sorge, we must resolve the conflict
in the same way here. Thus, we elect not to impose a duty.
¶ 78. We also reject on narrower grounds plaintiffs’ claim that defendant Brattleboro
Retreat can be liable for negligent performance of an undertaking under § 324A of the
Restatement (Second) of Torts. That section requires plaintiffs to show one of three
circumstances. The only one possibly applicable in this case is § 324A(a): that defendants’
“failure to exercise reasonable care increases the risk of such harm.” The standard of
comparison for this subsection is not the risk of harm created if defendant exercised reasonable
care, as under that standard the element would always be met. Instead, the standard is the risk of
harm that would be present if defendant never undertook to render the services. Plaintiffs cannot
show, and do not allege, that defendant’s care increased the risk to third persons. Sentry v.
Murphy Ins., 2014 VT 25, ¶ 28, 196 Vt. 92, 95 A.3d 985. 12 Therefore, section 324A does not
apply.
¶ 79. Finally, our holding on these counts of the complaint against the Retreat apply
equally against NKHS, the outpatient service provider. Indeed, courts have held that duties to
control are lesser in outpatient programs because the ability to control the behavior of the patient
is more limited. See Santana v. Rainbow Cleaners, 969 A.2d 653, 665-66 (R.I. 2009). Plaintiffs
alleged in Count VI that NKHS had a duty to treat E.R. such that the risk of harm to the public
would be reduced. We decline to impose such a duty. For the reason expressed above with
respect to the Retreat, we hold that Restatement (Second) of Torts § 324A does not impose a
duty to the public on NKHS to exercise reasonable care in its undertaking to provide services to
E.R.
¶ 80. In summary, we hold that counts II, III and V of plaintiffs’ complaint—which
allege that: (1) the Retreat and NKHS had a duty to inform plaintiffs of E.R.’s mental health
12 This point is now explicitly recognized in the comparable section of the Restatement (Third) of Torts, § 43. 37 status, his danger to plaintiffs or others, and how to perform their caretaker role in light of these
warnings, and; (2) each defendant negligently violated this duty—state causes of action that
survive a motion to dismiss. In all other respects, the motion to dismiss was properly granted.
As discussed in the foregoing paragraphs, we do not adopt § 43 of the Restatement (Third) of
Torts.
Affirmed on plaintiffs’ failure-to-treat and negligent-undertaking claims. Reversed and remanded on the failure-to-inform claims.
FOR THE COURT:
Associate Justice
¶ 81. REIBER, C.J., dissenting. Chief Justice Roger Traynor of the California
Supreme Court, one of the great common-law innovators in American legal history, nevertheless
repeatedly cautioned restraint, or what he called “circumspection,” in the evolution of judicial
precedent. “The greatest judges of the common law have proceeded in this way,” he explained,
“moving not by fits and starts, but at the pace of a tortoise that explores every inch of the way,
steadily making advances though it carries the past on its back.”13 Unlike a legislature, whose
scope of inquiry is unbounded, an appellate court is confined to the record, which in turn is
limited by the rules of evidence, and its decisions—unlike statutes—become instantly resistant to
change under the rule of stare decisis. Hence the overarching need for judicial humility in the
face of our own limited knowledge—for incremental rulings that allow a court “time to advance
or retreat” from its forays into the unknown with a minimum of unintended effects and needless
shock to those who must “act in reliance upon judicial pronouncements.”14
13 R. Traynor, Transatlantic Reflections on Leeways and Limits of Appellate Courts, 1980 Utah L. Rev. 255 (1980), reprinted in The Traynor Reader 200 (1987). 14 Traynor, supra, at 200. 38 ¶ 82. The majority abandons this cautious approach with no apparent awareness that it
is even doing so. It dresses its decision in the clothes of the “modern,” suggesting that its
holding flows from a natural “evolution of the duties articulated in decades of case law” and thus
represents no dramatic departure. Ante, ¶¶ 21, 23. It embraces these “precedent[s] and modern
trends” to define for mental-health care providers a new common-law duty. Ante, ¶ 51.
¶ 83. But the argument is a fiction. Science and the law have indeed evolved in the
forty years since the California Supreme Court’s seminal decision in Tarasoff v. Regents of the
University of California that a therapist who “determines, or pursuant to the standards of his
profession should determine, that his patient presents a serious danger of violence to another, . . .
incurs an obligation to use reasonable care to protect the intended victim against such danger.”
551 P.3d 334, 340 (Cal. 1976). They have simply not evolved in any way that remotely supports
the majority’s decision to expand exponentially the duty owed by a mental health professional to
protect third parties in the circumstances presented here. Accordingly, I must respectfully
dissent.
¶ 84. The majority observes at the outset that since Tarasoff “[s]everal courts have
limited the duty to identifiable victims, or a class of individuals whose injury is foreseeable
because of their relationship or proximity to a specifically identifiable victim.” Ante, ¶ 36
(emphasis added). Among these, of course, is our own holding in Peck v. Counseling Service of
Addison County, Inc. that “a mental health professional who knows or, based upon the standards
of the mental health profession, should know that his or her patient poses a serious risk of danger
to an identifiable victim has a duty to exercise reasonable care to protect him or her from that
danger.” 146 Vt. 61, 68, 499 A.2d 422, 427 (1985). “However,” the majority continues,
“several other courts have held that a duty to warn is owed not only to specifically identified or
identifiable victims, but to foreseeable victims or to those whose membership in a particular
class . . . places them within a zone of danger.” Ante, ¶ 37. Combined with the suggestion that
39 “Peck was decided thirty years ago, before modern trends in this area,” ante, ¶ 38 (emphasis
added), the implication is that the states are now about evenly divided between these camps.
¶ 85. This is decidedly not the case. The voluminous literature canvassing the legal and
medical ramifications of Tarasoff over the past four decades agree that the predominant legal
response has been to specifically define and limit a mental health provider’s duty to protect third
parties, generally requiring a serious threat to a readily identifiable victim. See, e.g., D. Katner,
Confidentiality and Juvenile Mental Health Records in Dependency Proceedings, 12 Wm. &
Mary Bill of Rt. J. 511, 532 (2004) (Although “most jurisdictions now recognize a Tarasoff-type
duty, the vast majority . . . limit it to situations in which . . . the patient has communicated to the
psychotherapist a serious threat of physical violence against a reasonably identifiable victim or
victims.” (quotations omitted)); C. Cantu, et al., Bitter Medicine: A Critical Look at the Mental
Health Care Provider’s Duty to Warn in Texas, 31 St. Mary’s L. J. 359, 377 (2000) (“The
majority of states that have addressed this issue follow the Tarasoff/Thompsonrule, which states
that when a mental health care provider foresees or should foresee that a patent poses a serious
risk of violence to a readily identifiable third person, a duty arises to use reasonable care to
protect that individual against the danger.”).15 See also Fraser v. United States, 674 A.2d 811,
816 (Conn. 1996) (noting that “state courts . . . have overwhelmingly concluded that an
unidentifiable victim has no claim in negligence against psychotherapists who were treating the
assailant on an outpatient basis”); Eckhardt v. Kirts, 534 N.E.2d 1339, 1344 (Ill. App. Ct. 1989)
(observing that, in “determin[ing] the legal duty of therapists to third persons, numerous courts
15 In Thompson v. County of Alameda, 614 P.2d 728, 734 (Cal. 1980), the California Supreme Court clarified Tarasoff by explaining that a therapist’s duty to protect arises only when the patient’s intended victim is “readily identifiable.” “[N]onspecific threats of harm against nonspecific victims” do not trigger the duty of care. Id. at 735.
40 have concluded that a therapist cannot be held liable for injuries inflicted upon third persons
absent specific threats to a readily identifiable victim”).16
¶ 86. The reason is readily apparent. Courts and legislatures from Tarasoff onward
have recognized the conflicting interests at play in such cases and the freighted consequences
however the balance is struck. On one side is the obvious and compelling interest in protecting
the public from assault by mental health patients with violent propensities. On the other is the
strong countervailing interest in safeguarding the confidential character of psychotherapeutic
communications,17 the inherent difficulty (often underappreciated by those with the luxury of
hindsight) of forecasting future dangerousness,18 and the significant societal concern that patients
16 As discussed more fully below, a few courts have expanded the duty slightly to include persons within a “zone of danger” who were sufficiently targeted by the patient even if not specifically threatened. See, e.g., Jablonski v. United States, 712 F.2d 391, 398 (9th Cir. 1983) (applying California law and Tarasoff to hold that, although defendant’s patient had made no express threat against his domestic partner, Melinda Kimball, she was within scope of duty where patient’s “previous history indicated that he would likely direct his violence against Kimball,” his psychological profile “indicated that his violence was likely to be directed against women very close to him,” and he had threatened Kimball’s mother), overruled on other grounds by Matter of McLinn, 739 F.2d 1395(9th Cir. 1984 (en banc); Hamman v. Cty. of Maricopa, 775 P.2d 1122, 1127-8 (Ariz. 1989) (holding that “Tarasoff envisioned a broader scope” of duty than circumstance where patient “verbalized [a] specific threat,” and could include patient’s family where his threats placed them “within the zone of danger, that is, subject to probable risk of the patient’s violent conduct”); see also Fraser, 674 A.2d at 816 (noting that most courts have extended therapist’s duty of care only to “victims who were either specifically identifiable or within a class of foreseeable victims”). 17 See, e.g., D. Rosenhan, et al., Warning Third Parties: The Ripple Effects of Tarasoff, 24 Pac. L. J. 1165, 1222 (1993) (concluding, based on survey of mental health providers, that in accordance with Tarasoff “psychotherapists continue to warn patients that certain conversation is not confidential,” and “in accord with expectation, many of these patients simply abandon treatment,” posing additional risks to the public). 18 The clinical difficulties in (1) assessing the risk of violence posed by a patient and (2) determining whether that risk is sufficient to warrant protective actions, recognized in Tarasoff, have not appreciably lessened in the decades since. See, e.g., D. Mossman, Critique of Pure Risk Assessment, or Kant Meets Tarasoff, 75 U. Cin. L. Rev. 523, 601-2 (2006) (explaining that clinicians do not “predict dangerousness” but simply identify different “levels of risk,” and that more significantly few empirical studies reveal “what level of risk is sufficient to justify . . . action”); P. Herbert, The Duty to Warn: A Reconsideration and Critique, 30 J. Am. Acad. of Psychiatry & Law 417, 421 (2002) (observing that, “despite advances in risk assessment,” such assessments fall “substantially short of exact science” and involve at best “approximations of the degree of risk”). 41 not be unnecessarily hospitalized as a means to avoid liability.19 See, e.g., Estates of Morgan v.
Fairfield Family Counseling Ctr., 1997-Ohio-194, 673 N.E.2d 1311, 1322 (listing the factors
generally considered in determining a therapist’s duty of care as including “the public’s interest
in safety from violent assault,” the “difficulty inherent in attempting to forecast whether a patient
represents a substantial risk of physical harm to others,” the “goal of placing the mental patient
in the least restrictive environment . . . free from unnecessary confinement,” and the “social
importance of maintaining the confidential nature of psychotherapeutic communications”).
¶ 87. A few states, weighing these countervailing concerns, have determined that public
policy simply does not support the imposition of any duty upon a mental health care provider to
protect third parties from a potentially violent patient. See Boynton v. Burglass, 590 So. 2d 446,
448 (Fla. Dist. Ct. App. 1991) (rejecting Tarasoff-like duty to warn identified third parties of
threats by patient on the ground that it is “neither reasonable nor workable and is potentially fatal
to effective patient-therapist relationships”); Thapar v. Zezulka, 994 S.W.2d 635, 640 (Tex.
1999) (declining “to impose a common law duty on mental-health professionals to warn third
parties of their patient’s threats”).
¶ 88. Several other courts have taken the opposite tack, broadly defining the therapist’s
duty to include any “foreseeable” victim without limitation to specifically identified or
identifiable targets of violence. See Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185, 194 (D.
Neb. 1980); Naidu v. Laird, 539 A.2d 1064, 1072-3 (Del. 1988); Petersen v. State, 671 P.2d 230,
237 (Wash. 1983); Schuster v. Altenberg, 424 N.W.2d 159, 166 (Wis. 1988). Significantly,
19 This concern was cogently summarized by the court in Sherrill v. Wilson, 653 S.W.2d 661, 664 (Mo. 1983):
The plaintiff could undoubtedly find qualified psychiatrists who would testify that the treating physicians exercised negligent judgment, especially when the are fortified by hindsight. The effect would be fairly predictable. The treating physicians would indulge every presumption in favor of further restraint, out of fear of being sued. Such a climate is not in the public interest. 42 however, these decisions have generally rested on the courts’ recognition of a corollary duty to
control a violent patient through involuntary commitment if necessary. See Lipari, 497 F. Supp.
at 193-4 (holding that therapist’s duty includes “whatever precautions are reasonably necessary
to protect potential victims of his patient,” including “duty to detain a patient” in hospital);
Naidu, 539 A.2d at 1073 (holding that defendants had duty to warn “and a duty to control the
actions of a mentally ill patient” and were negligent in discharging patient from hospital);
Petersen, 671 P.2d at 237 (upholding judgment for plaintiff based on psychiatrist’s failure “to
petition the court for a 90-day commitment, as he could have done . . . to protect those who
might foreseeably be endangered”); Schuster, 424 N.W.2d at 166 (rejecting defendant’s claim
that they did not “have a duty to warn third parties or to institute proceedings for the detention or
commitment of a dangerous individual for the protection of the patient or the public”). See
generally M. Quattrocchi, Tarasaurus Rex: A Standard of Care that Could Not Adapt, 11
Psychol. Pub. Pol’y & L. 109, 113 (2005) (“Some courts have imposed a duty to third parties in
the absence of an identifiable victim. These cases emphasize . . . protection in the form of
hospital confinement.”); R. Schopp, The Psychotherapist’s Duty to Protect the Public: The
Appropriate Standard and the Foundation in Legal Theory and Empirical Premises, 70 Neb. L.
Rev. 327, 345 (1991) (noting that “the Schuster court interpreted warnings and civil commitment
as comparable techniques for protecting the public from foreseeable harm”).
¶ 89. Thus, those courts that have broadened the therapist’s duty to all “foreseeable”
victims without limitation have resolved the dilemma posed by the risk of over-commitment
essentially by ignoring it; under these rulings, anyone injured by a mental health patient may
argue that, in retrospect, the therapist was negligent in failing to detain the patient. In states like
Vermont, however, where public policy militates against the recognition of a duty to control a
patient through involuntary hospitalization—a policy reaffirmed by the majority today—
extending the duty to the public at large is not a sound or practical option. See ante, ¶ 75
(rejecting imposition of duty to institutionalize mental health patient in order to avoid “an 43 increase in unjustified commitments and abandonment of treatment-in-the-least-restrictive-
environment” policy).
¶ 90. Most states, as noted, have pursued an approach between these two extremes.
Through case law or legislation they have struck a balance among the competing concerns by
recognizing a relatively narrow duty of care limited to situations where the therapist knows or
should know that a patient poses a specific threat to an identified or reasonably identifiable third
person. This standard, as one court has observed, “evinces a sound public policy against
expanding the liability of health professionals to an indeterminate class of potential plaintiffs.”
Eckhardt, 534 N.E.2d at 1345. It reflects a considered policy judgment that the societal costs of
breaching the therapeutic bond based on generalized threats of violence—all too commonplace
in the therapeutic setting20—do not justify whatever uncertain benefits may flow from expanding
the duty to unspecified third parties based on an inherently inexact risk assessment made all the
more difficult where the potential target is not identified. See, e.g., Thompson, 614 P.2d at 736
(observing that “it is fair to conclude that warnings given discreetly and to a limited number of
persons would have a greater effect because they would alert [them] . . . of a specific threat
pointed at them”).
¶ 91. This balancing of interests was cogently addressed by the Pennsylvania Supreme
Court in considering “the conundrum a mental health care professional faces regarding the
competing concerns of productive therapy, confidentiality and other aspects of the patient’s
wellbeing, as well as the interest in public safety.” Emerich v. Phila. Ctr. for Human Dev., Inc.,
720 A.2d 1032, 1040 (Pa. 1998). In light of these concerns, the court concluded that the
circumstances giving rise to a duty to third parties must necessarily be “limited,” requiring “the
existence of a specific and immediate threat” which is “made against a specifically identified or
20 See P. Herbert, The Duty to Warn: A Reconsideration and Critique, 30 J. Am. Acad. of Psychiatry & Law 417, 422 (2002) (explaining that “mental health workers must grapple with threats of suicide or of violence against others regularly as an integral part of their work,” and that such threats “are daily grist”) 44 readily identifiable victim.” Id. “Strong reasons,” the court concluded, compel the conclusion
that the therapist’s duty “must have some limits.” Id. Many other courts have echoed these
concerns in reaching similar conclusions. See, e.g., Fraser, 674 A.2d at 816 (adopting rule that
therapist’s duty to protect third persons is limited to identifiable victims or class of identifiable
victims based on “balance [of] the interests of those injured by psychiatric outpatients against the
interests of the mental health profession in honoring the confidentiality of the patient-therapist
relationship and in respecting the humanitarian and due process concerns that limit the
involuntary hospitalization of the mentally ill” (citation omitted)); Eckhardt, 534 N.E.2d at 873-4
(rejecting expansion of therapist’s duty beyond “cases involving specifically identifiable,
potential victims as evidenced by specific threats” because “[h]uman behavior is simply too
unpredictable and the field of psychotherapy presently too inexact,” and imposition of a broader
duty “would be to place an unacceptably severe burden on those who provide mental health care
to the people of this State, ultimately reducing the opportunities for needed care”). In addition,
as noted, numerous states have codified similar, practical limits on a mental-health care
provider’s duty of care to third parties. See D. Mossman, Critique of Pure Risk Assessment, or
Kant Meets Tarasoff, 75 U. Cin. L. Rev. 523, 586 n.204 (2006) (observing that, “[t]o clarify
clinicians’ responsibilities, many states have enacted laws that limit therapists’ potential liability
if they take specified actions when a patient makes a serious threat against an identifiable victim”
(quotation omitted)); Nat’l Conference of State Legislatures, Mental Health Professionals’ Duty
to Warn, www.ncsl.org/research/health/mental-health-professonals-duty-to-warn.aspx (2015)
(collecting state statutes).
¶ 92. The point here is not that the Court has adopted a minority position without
expressly acknowledging it. If that were the problem, it would be enough to simply articulate the
competing viewpoint, and agree to disagree. However ill-advised the majority’s choice, it would
at least be based on familiar ground. And while the decision to abandon a standard that so many
45 states have found to be the proper balance between competing public-policy interests might be
mistaken, it would at least have the virtue of transparency.
¶ 93. The problem here is altogether different, however, and far more serious. For the
majority not only expands the scope of a therapist’s duty beyond the limits recognized by this
Court in Peck, it creates an entirely new duty of care which plaintiffs here have labeled a duty to
“train” and the majority sees fit to “recast as a duty to provide . . . information.” Ante, ¶ 52.
The majority holds that defendants “owed a duty of care to provide sufficient information to the
parents so that they could fully assume their caretaker responsibilities to assist E.R. and protect
against any harmful conduct tin which he might engage.” Ante, ¶ 44.
¶ 94. This holding is extraordinary in its scope and implications. To recall, most duty-
to-protect cases have divided along a fault-line between those limiting the duty to identified or
reasonably identifiable targets of violence and those that would include all “foreseeable” victims,
the latter generally predicated on a duty to treat and, if necessary, confine a dangerous patient
given the general impracticality of warning all remote, albeit foreseeable victims. The majority
rejects the principle that a therapist’s duty extends only to reasonably identifiable targets of
specific threats by the patient. It also rejects as a matter of policy any duty to control a mental-
health patient through involuntary commitment. Ante, ¶ 77.
¶ 95. Out of this seeming impasse the majority creates a new duty—a duty to warn and
to train or “assist” not the patient or the patient’s targeted victims, but the patient’s parents or,
more broadly, his or her “caretakers” so that they may control the patient and prevent injury to
the public. Ante, ¶ 59. This is worth a moment’s reflection. As a matter of policy, according to
the majority, no liability may attach to E.R.’s mental health providers for their allegedly
negligent failure to control E.R.’s conduct by providing for his involuntary commitment.
Nevertheless, liability may attach to the same defendants for their allegedly negligent failure to
enable E.R.’s parents to control his conduct by providing them with adequate warning and
“assistance.” 46 ¶ 96. The imposition of a duty so novel and with such potentially broad consequences
for mental health care providers, their patients, and the general public surely requires a more
solid foundation than an allegation in a complaint. Recognizing that this case remains at the
pleading stage, duty nevertheless constitutes an essential element of plaintiffs’ cause of action,
and its existence is a question of law which this Court must decide in the first instance in light of
all relevant policy concerns. See Endres v. Endres, 2008 VT 124, ¶ 11, 185 Vt. 63, 968 A.2d
336 (noting that “duty . . . is central to a negligence claim” and that “its existence is primarily a
question of law” based on “those considerations of policy which lead the law to say that the
plaintiff is entitled to protection” (quotation omitted)). Yet nothing in plaintiffs’ complaint even
remotely identifies the basis for recognizing a so-called duty to “train” a patient’s parents or
“caretakers” to protect the public. Nothing in plaintiffs’ briefing below or before this Court
identifies any medical treatises or other literature defining and describing the basic clinical
standards, practices, and therapeutic goals underlying such a duty. Nothing in the briefing
identifies any decisional law or authority elsewhere specifically recognizing and imposing such a
¶ 97. We do, on the other hand, know from plaintiffs’ complaint that certain actions
were taken by defendants after E.R.’s discharge. We know that the Brattleboro Retreat made an
aftercare treatment plan for E.R. and reviewed it with E.R. and his parents, and that the plan
“involved E.R. being seen on a regular basis” at NKHS. We know that the medical professionals
at the Retreat prescribed medications for E.R. to take on a daily basis. We know that E.R. met
with a “treatment team” at NKHS, and that a “cognitive remediation therapy” plan was put in
place and signed by E.R. We know that E.R told his mother in mid-December 2010 that he had
ceased taking his medications, and that she reported this to NKHS. And we know that, on the
day of the assault, E.R.’s father had taken E.R. with him to oversee work being done at an
apartment building owned by E.R.’s grandfather.
47 ¶ 98. These facts themselves, hardly unique, highlight the most significant deficiency in
the majority’s newfound duty. Even assuming that plaintiffs could establish through expert
evidence some professional standards for the “training” of a patient’s caretaker, the imposition of
such a duty demands consideration of the policy implications underlying it—its practical benefits
against its societal costs. See Langle v. Kurkul, 146 Vt. 513, 519, 510 A.2d 1301, 1305 (1986)
(noting that existence of duty is primarily question of law dependent on variety of policy
concerns, including “the closeness of the connection between the defendant’s conduct and the
injury suffered,” the “burden to the defendant,” and the “consequences to the community”
(quotation omitted)).
¶ 99. The facts alleged by plaintiffs show that, even with the practical steps undertaken
by defendants and E.R.’s parents to facilitate his functioning safely in a less restrictive
environment than a closed hospital ward—providing an aftercare plan and reviewing it with
E.R.’s parents, establishing an outpatient treatment team, prescribing him daily medication,
endeavoring to monitor his activity by taking him to job sites, and reporting that he had stopped
his medication—they could not prevent him from perpetrating a spontaneous act of violence.
¶ 100. The majority’s speculation that defendants might have provided some additional
“information” or “assistance” to E.R.’s parents to prevent the assault simply misses the point. To
impose such a duty on health care providers undermines the fundamental policy underlying our
mental health care system, a policy designed to maximize a patient’s freedom and dignity by
providing treatment in the least restrictive environment available. It is the same policy
resoundingly reaffirmed by the majority today in refusing to impose a tort duty on health care
providers to institutionalize a patient. See ante, ¶ 75 (rejecting duty to institutionalize mental
health patient to avoid “an increase in unjustified commitments and abandonment of treatment-
in-the-least-restrictive-environment” policy).
¶ 101. Uncertainty counsels caution, for courts and clinicians alike. Any responsible
mental health care provider uncertain as to how, if at all, to satisfy this new, amorphous duty to 48 train or assist a patient’s “caretaker” sufficiently to prevent future harm might understandably
decide to err on the side of a more—rather than a less—restrictive treatment setting rather than
risk a lawsuit by the random victim of an outpatient assault. Moreover, considering the many
adult patients living with someone who could be characterized as a “caretaker”—be it the
patient’s parents, spouse, domestic partner, or friend—the consequences of such decisions could
be far reaching. Balanced against the dubious odds of actually predicting, much less preventing,
random acts of violence by a patient absent any specific threat or identifiable victim, the risk
becomes prohibitive.
¶ 102. The expected response to these concerns is that they are merely “speculative”
while we know—in contrast—that mental health providers routinely make predictions of
dangerousness in deciding to commit a patient and routinely apply Tarasoff when deciding
whether a patient poses a threat. Thus, it is easy to posit that the concern for overcommitment is
exaggerated or unfounded, that no responsible mental health care provider would involuntarily
hospitalize a non-dangerous patient to avoid a lawsuit, much less release a dangerous one despite
the risk to the public.
¶ 103. The flaw in this response is the assumption that there are “yes” or “no” answers to
the mental health clinician’s decisions. The relevant medical and legal literature, however, belies
this assumption. There are, in fact, no answers, but only imperfect assessments of differential
levels of risk, and there are no clear standards defining the level of risk sufficient to trigger
protective measures. See, e.g., Mossman, supra, 75 U. Cin. L. Rev. at 567, 577 (observing that
most recent medical studies show that “a therapist’s predictive knowledge about future violence
is really an ability to make risk estimates,” while “there is and can be no rationally established,
broadly accepted criterion for what probability of risk constitutes the level of ‘serious danger’
that should trigger a protective response”); Herbert, supra, 30 J. Am. Acad. of Psychiatry & Law
at 422 (noting the “residuum of uncertainty” in assessing whether “a patient really means
particular words as a threat”). Tarasoff has worked, according to surveys and studies, because 49 most states employ reasonably clear, narrow, and understandable standards that require a serious
threat to a reasonably identifiable target. See, e.g., Rosenhan, supra, 24 Pac. L. J. at 1203, 1208,
1217 (findings from broad survey of psychotherapists showed that, while very small percentage
rated their ability to assess dangerousness “very accurately,” most understood duty to protect was
predicated on identification of specific victim and believed that duty was consistent with ethical
obligations); Mossman, supra, 75 U. Cin. L. Rev. at 603 (noting that clinicians have sought and
been well served by “statutory boundaries on the duty to protect, boundaries that tell them when
the duty arises (usually, following explicit threats toward specific targets) and that define the
ways of discharging the duty”); M. Soulier, et al, Status of the Psychiatric Duty to Protect, Circa
2006, 38 J. Am. Acad. of Psychiatry & Law 457, 471-2 (2010) (concluding from surveys of
psychotherapists and review of legal evolution of Tarasoff duty that “statutes appear to promote
a useful social policy, limiting the duty to protect to cases in which victims are identified or
reasonably identifiable” and as such pose little threat to clinician’s ability to practice). The broad
duty created by the majority, in contrast, contains none of the limits that form a natural and
necessary counterbalance to the risks of defensive practice and overcommitment in the mental-
health context.
¶ 104. To dismiss the concerns of the mental health care profession in this case as
speculative or even self-serving, moreover, is presumptuous. It is all too easy to assign new
duties to a profession we know little about, and have no responsibility to implement. Judicial
restraint in creating duties for other professions is not an end in itself; it is the end-result of
recognizing our own limitations. It is wisdom grounded in humility.
¶ 105. Finally, I would note that the majority’s alternative basis for imposing a duty of
care predicated on its conclusion that “E.R.’s parents fell within the ‘zone of danger’ from E.R.’s
conduct” is equally flawed and unpersuasive. Ante, ¶ 47. The zone-of-danger doctrine, as noted,
simply extends the therapist’s duty to persons within a finite class of reasonably identifiable
potential targets. Thus, in the case cited by the majority, Hamman v. County of Maricopa, the 50 record showed that the patient had “expressed jealousy of his stepfather” to the therapist; that the
patient’s parents had expressed concern to the therapist for their safety and begged the therapist
to admit the patient to the hospital; that the therapist failed to do so; and that the patient
subsequently attacked his stepfather with an electric drill. 775 P.2d at 1123-4. Based on these
facts, the court reasonably concluded that, despite the absence of a specific verbalized threat
against the parents, “they were readily identifiable persons who might suffer harm.” Id. at 1128.
¶ 106. Despite the majority’s statement that it “find[s] Hamman persuasive and follow[s]
its reasoning,” ante, ¶ 49, nothing on the limited factual record here brings this case within the
“zone of danger” doctrine articulated in Hamman and elsewhere. First, the complaint did not
allege that E.R. had threatened either his parents or a class of persons that might reasonably be
construed to include his parents.21 Nor did plaintiffs claim, as the majority argues, that E.R.’s
earlier aggression toward a member of the staff at the Retreat somehow brought E.R.’s parents
into the zone of danger applicable to all “caretakers.” To suggest that a threat against a nurse,
therapist, physician or other mental health care provider somehow represents a threat against an
identifiable class of all family members and friends who help with the patient’s outpatient care
would stretch the “zone of danger” doctrine beyond recognition.
¶ 107. Second, and more significantly, the doctrine was designed to protect a slightly
expanded class of reasonably identifiable potential victims, and E.R.’s parents were not the
victims here. As noted, plaintiff did not allege any threats—explicit, implicit, or otherwise—
against his parents. Nor is there any factual basis to support a conclusion that the actual victim,
Mr. Kuligoski, was within an identified or identifiable class of potential victims. The “zone of
danger” argument thus fails entirely.
¶ 108. This Court has repeatedly cautioned against placing “our imprimatur” upon a new
legal duty “without first determining whether there is a compelling public policy reason for the
21 At the motion hearing, plaintiffs’ counsel readily conceded that “there was no identifiable victim” in this case. 51 change.” Langle, 146 Vt. at 520, 510 A.2d at 1306; accord Goodby v. Vetpharm, Inc., 2009 VT
52, ¶ 11, 186 Vt. 63, 974 A.2d 1269; Knight v. Rower, 170 Vt. 96, 107, 742 A.2d 1237, 1245
(1999); Smith v. Luman, 148 Vt. 595, 599, 538 A.2d 157, 158 (1987). The majority identifies no
compelling public policies to warrant the extraordinary duty it imposes on mental health care
providers by today’s ruling. On the contrary, settled public policy governing our treatment of the
mentally ill demands precisely the opposite result. I therefore respectfully dissent.
¶ 109. I am authorized to state that Justice Skoglund joins this dissent.
Chief Justice
¶ 110. SKOGLUND, J., dissenting. I concur in the Chief Justice’s well-reasoned,
indeed unassailable, dissent. The majority has created a heretofore unheard of duty based on an
allegation in a complaint. This new duty to train or assist a patient’s caretakers so as to protect
the public finds no support in case law or public policy. It is illogical, potentially fatal to
effective patient-therapist relationships, and places an impossibly onerous obligation on those
who provide mental health care to the people of this state.
¶ 111. The facts of this case center around an unprovoked, spontaneous act of violence
directed against a stranger by an individual suffering from a severe mental illness. Nothing short
of anticipatory confinement in a hospital could have prevented it. But now, severely crippling
Vermont’s public policy of treatment of the mentally ill in the least restrictive environment, the
majority has delivered a cautionary tale involving the threat of tort liability for releasing a
mentally ill person to people not sufficiently trained to provide care and control. This is a
preposterous, reckless decision.
¶ 112. The majority opinion identifies the cautious and thoughtful evolution of the duty
owed by mental health professionals begun in Tarasoff v. Regents of University of California,
551 P.2d 334 (Cal. 1976), Thompson v. County of Alameda, 614 P. 2d 728 (Cal. 1980), and the
52 cases that came after. It then abruptly abandons consideration of identified victims or reasonably
identifiable victims and finds a duty “to provide sufficient information to the parents so they
could fully assume their caretaker responsibilities to assist E.R. and protect against any harmful
conduct in which he might engage.” Ante, ¶ 44.
¶ 113. First of all, I posit that the parents of E.R. knew he could be dangerous as it was
his behaviors in their home that precipitated his initial hospitalization. They were privy to the
discharge summary from the Brattleboro Retreat and worked with the Retreat to develop an
aftercare treatment plan that included regular visits to Northeast Kingdom Human Services
(NKHS). They were aware he was on antipsychotic medications and had been told that they
should give E.R. his medications and not rely on him to medicate himself. The mother knew
enough to be concerned when E.R. told her he had stopped taking his medication. They had
been warned. They knew E.R. could be dangerous when deep in his illness. What “training”
should have been offered remains a mystery.
¶ 114. What is substantially more troubling is the framework upon which the majority
builds its new duty. As explained by the Chief Justice in his dissent, the majority relies on the
“zone-of-danger” doctrine that simply is not implicated in this case. There is no allegation E.R.
threatened his parents. The parents were not injured. And, the actual victim could not have been
identified as a reasonably identifiable potential victim, the expanded class the doctrine is
designed to protect.
¶ 115. The majority finds Hamman v. County of Maricopa, 775 P.2d 1122 (Ariz. 1989)
“persuasive” and claims to follow its reasoning. The Hamman case is completely distinguishable
from the case at bar. In Hamman, the doctor refused to admit the patient to the hospital and,
according to the parents, told them their son was “harmless.” Id. at 1123. Two days later, the
son viciously attacked the stepfather. The court noted that the doctor was aware that
schizophrenic-psychotic patients are prone to unexpected episodes of violence, knew that the son
was living with his parents, and thus should have known that “[i]f indeed [the doctor] negligently 53 diagnosed [the son] as harmless, the most likely affected victims would be the Hammans. Their
constant physical proximity to [their son] placed them in an obvious zone of danger. The
Hammans were readily identifiable persons who might suffer harm if the psychiatrist was
negligent in the diagnosis or treatment of the patient.” Id. at 1128. The majority neglects to
provide any analysis to link the case at bar with the situation described in Hamman.
¶ 116. Under this new duty, mental health providers will have to consider generalized
threats of violence directed against no one in particular, which I suggest are commonplace with
severely ill patients, and will have to weigh whether to violate the patient-physician privilege,
thus damaging whatever therapeutic relationship existed and perhaps the treatment of the patient
as well. After the risk assessment, they will then, in trying to place the patient in the least
restrictive environment available, need to do an educational assessment of potential caregivers.
As the Chief Justice notes, the majority identifies no professional standards, legal authority, or
public policies to support a duty so “extraordinary in its scope and implications.” Ante, ¶ 94.
Long after this Court has forgotten about it, this amorphous duty to train or assist will continue to
perplex and bedevil practitioners in the field of mental health who must actually attempt to
understand the obligations imposed and comply.
¶ 117. Finally, the majority disposes of statutes and regulations that govern confidential
communications between patient and physician by suggesting that, one, they only codify an
evidentiary privilege, and two, there are no policy objections to family members being “fully
knowledgeable of the patient’s condition and history.” Ante, ¶ 59. This is a breathtaking
disregard for the tort liabilities or ethical claims that can result from the disclosure of health
information or history and a startling admission by the majority that no “policy objection” occurs
to them for the wholesale disclosure of a person’s mental health condition and history to the
ambiguous sobriquet “family.”
¶ 118. Decisions to create and impose new legal duties on other learned professions have
profound consequences. To impose a novel legal duty on mental health care professionals 54 without extensive discussion of the professional knowledge, skills, and practice standards—if
any—that may apply and the policy consequences that may result, is not merely, as the Chief
Justice suggests, “presumptuous.” It is the essence of judicial arrogance.
Related
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