Saturday, October 8, 2016

Developing Duties Deux

Kuligoski v. Brattleboro Retreat, 2016 VT 54A

By Andrew Delaney

For me, this amended opinion is like a frustrating find-the-differences puzzle. We reported on the issued-in-May opinion just a few weeks ago because it took me a long time to work through it. Naturally, I was just thrilled to see that the SCOV had issued an amended opinion.

I’m going to attempt to just highlight the differences in the amended opinion here. If you notice a mistake or something I missed, please let us know in the comments.

The amended opinion starts off with an entry order noting that the amended opinion replaces the issued-in-May opinion. The State’s motion to file for reargument as amicus curiae is granted and the appellees’ and amici curiaes’ motions are denied. Within the entry order, Chief Justice Reiber and Justice Skoglund dissent, opining that while the majority has made changes to “narrow” (their snarky quotation marks, not mine) its holding, that’s not enough. There were “an astonishing number of motions for reargument,” and the State’s motion in particular represents a “clear and dispassionate analysis of both the immediate and long term damage resulting from the majority’s misguided judgment.” The dissenters think the majority should vacate the opinion and get rid of the novel duty it imposes.

The facts in the majority opinion remain the same. That’s good. Phew. One of the first changes I notice is that “foreseeable” is emphasized with an underline when the majority holds that a duty to warn “extends to identifiable and foreseeable victims.” At least I think that’s a difference. I’m comparing the just-issued PDF with a Google Scholar version of the May opinion. The May opinion has been disappeared from the judiciary website. And now that I’ve looked at a few non-underlined case names in the Google version, I’m really starting to think it’s not a difference but a translation issue.

Moving right along, at about paragraph fifty-four, the majority comes right out and affirms the dismissal of the duty-to-train claim whereas in the May opinion, it kind of hemmed and hawed a bit about factual development and causation. The hemming and hawing about causation remains intact, however, and as far as I can tell, that’s the only substantive difference.

The rest of the majority opinion and the dissents remain largely the same so far as I can tell. There are six more paragraphs in the amended opinion, so again, if you, dear reader, can spot additional differences, please let us know in the comments. While I have a dual screen that makes it much easier to compare documents side-by-side at work, this back-and-forth clicking on my laptop is driving me batty. If the SCOV were to issue a here’s-what’s-changed cheat sheet with its amended opinions, that’d sure make me happy.

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