Sunday, August 17, 2014

Thoughts on Torts, Threats, and Thuggery

Baptie v. Bruno, 2013 VT 117

By Andrew Delaney

This case helps define how much responsibility a police officer has to protect a specific person when a complaint is made about a potential attacker.

Plaintiffs are the administrators of their son’s estate. Four days after they made a complaint to the police about defendant Bruno, he murdered their son. See, Mr. Bruno thought Mr. Baptie owed him some money. So he called Mr. Baptie’s parents’ house and left threatening messages, including death threats.

So they called the police. Dad had had some run-ins with the local police and was not particularly pleased when defendant Officer McNeil showed up, but defendant said the local police force was their only option. Mr. Baptie explained that he owed Mr. Bruno thirty or forty bucks for baseball cards and that was it. Defendant said he would talk to Mr. Bruno, and then the phone rang. It was Mr. Bruno.

Defendant spoke with Mr. Bruno and told him to stop calling. He told Mr. Bruno that he would be charged with unlawful trespass if he came to the Bapties’ residence. Defendant also indicated to dad that he would charge Mr. Bruno with harassment by telephone if he called back.

Mr. Bruno called back the next morning, and after listening to the voicemail, defendant issued a citation against Mr. Bruno for harassment by telephone. Defendant attempted to have another police force serve the citation, but they weren’t successful because the address defendant gave them was no good. Defendant didn’t pursue service of the citation further before Mr. Baptie was murdered.

Mr. Baptie and Mr. Bruno ran into each other in a parking lot. They argued and Mr. Bruno suggested they “go behind a nearby store and settle matters.” Unfortunately, that was where Mr. Bruno fatally stabbed Mr. Baptie in the neck.

So, plaintiffs filed a wrongful death action against Mr. Bruno, and later added defendant Officer McNeil. They made claims against defendant McNeil for negligence and intentional infliction of emotional distress, which we lawyers are taught to call “IIED” while we’re still lawyer eggs.

The superior court granted defendant McNeil’s motion for summary judgment, ruling that plaintiffs’ negligence claim lacked duty and causation; defendant was entitled to qualified immunity and plaintiffs couldn’t show bad faith or gross negligence; defendant’s conduct wasn’t IIED-level outrageous; and punitive damages were unavailable without liability. The last part seems kind of elementary, but it’s mentioned in the opinion, so there you go.

Plaintiffs got a default judgment against Mr. Bruno, and then appealed the summary-judgment decision for Officer McNeil. Plaintiffs argue that they could prove the necessary elements for negligence or IIED, and that defendant wasn’t entitled to qualified immunity.

As regular readers are aware, the SCOV reviews summary-judgment decisions de novo. The standard for summary judgment should also be familiar: summary judgment is appropriate when taking the facts in the light most favorable to the nonmoving party, there are no disputed issues of material fact, and the moving party is entitled to judgment as a matter of law.

Note to civil-defense practitioners: you will LOVE paragraph 10 of this opinion; plaintiff’s lawyers, not so much.

The SCOV first tackles the qualified-immunity issue. There are three general requirements for qualified immunity to attach to a public official’s acts. They have to be: (1) within—or within a reasonable belief of—the scope of their employment and authority; (2) acting in good faith; and (3) performing discretionary, not ministerial acts.

The SCOV notes that the primary purpose of the qualified-immunity doctrine is, more or less, to allow public officials to do their jobs. The SCOV reasons: “Here, the scope of defendant’s investigation into plaintiffs’ complaint was at the heart of his official and discretionary duties as a police officer.”

The opinion implies that plaintiffs tried to use some internal policies and manuals to show duty, but the SCOV brushes that aside—those manuals and policies aren’t legal requirements and they don’t create duties to third parties. Nothing in defendant’s actions violated Vermont’s Good Samaritan Act. The SCOV also reasons that defendant McNeil didn’t suggest that he was taking on a duty to protect Mr. Baptie.

As far as the bad-faith piece goes, the SCOV reasons that defendant said he would try to track down and charge Mr. Bruno, and that’s what he tried to do. No bad faith there.

And though plaintiffs argue that there was animosity based on defendant’s past experience with dad, the SCOV reasons that “no evidence of actual animosity was raised and nothing in the record suggests that defendant’s investigation was influenced by his past experiences with [dad].” Thus, the SCOV holds that qualified immunity applies, and defendant is immune from plaintiffs’ suit.

That could be the end of it, but the SCOV still has a few things left to say about duty and causation. First, the general rule is that a crime committed by a third party is usually unforeseeable and can’t form the basis for tort liability.

In order for there to be liability then, there must be some special notice or knowledge on the defendant’s part. A number of factors are considered when determining whether state actors have a duty to prevent third-party actors from committing a crime. These factors include the presence or lack of a protective statute; the government’s knowledge of the danger; whether those people (within the protected class) have relied on the government’s representations or conduct; and whether the government’s failure to act increased the risk of harm.

The SCOV holds, “In this case, plaintiffs cannot prove that defendant had a special relationship or notice upon which to base his liability for Bruno’s murder of their son.” Here, there was a dispute over thirty or forty dollars’ worth of baseball cards. Mr. Baptie and Mr. Bruno had known each other a long time. Despite Mr. Bruno’s threats, expecting murder under the circumstances wasn’t mandatory.

Even if Mr. Bruno had been arrested and charged, there was no guarantee that he’d have been incarcerated. The SCOV notes, “Nothing in the record suggests that plaintiffs expected defendant or anyone else to remove Bruno from the streets in the immediate future.” The SCOV holds that there’s no special duty, and thus no negligence claim.

One of the essential elements of IIED is extreme or outrageous behavior. Defendant investigated and attempted to serve Mr. Bruno with a citation for a misdemeanor offense. The SCOV reasons that there’s just no way to find that behavior extreme or outrageous.

Again, there’s the noting of the no-liability-no-punitive-damages principle.

And so the SCOV affirms the trial court’s grant of summary judgment for defendant McNeil.

It’s terrible that plaintiffs’ son was murdered, but the police officer didn’t murder him, and it’s somewhat unlikely that the police officer would have prevented it even if he had been successful in charging Mr. Bruno with harassment by telephone. The connection, while there, is just too thin.  It’s a sad situation all around.

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