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| This tiger says, "negligence is made up of duty, breach, causation, and harm." |
Stephan Palmer v. Mark Furlan and State of Vermont
By: Elizabeth Kruska
The facts of this case are fairly straightforward. The legal analysis of this case includes an excellent one-paragraph refresher of a law school torts class and a concurrence that reminds us we never really know what judges are going to do until they do it.
Mr. Palmer was in jail serving a sentence. He filed a motion for post-conviction relief (PCR). The opinion doesn’t tell us what he was in jail for or the basis for the PCR, because neither of those things especially matter here.
Mark Furlan was appointed to represent Mr. Palmer. In all candor, I will disclose that Mr. Furlan is a colleague and friend of mine. The criminal defense bar in Vermont is small; generally we all know each other.
Anyway, Mr. Furlan started working on the case. He engaged in litigation with the State, and ultimately, the parties came to a settlement that would resolve the PCR case. The settlement involved restructuring Mr. Palmer’s sentence.
On November 16, 2015, Mr. Furlan filed settlement documents with the PCR court. If I’m reading this correctly, the documents said what the proposed settlement would be, but didn’t have details about the reasoning for the settlement. Two days later the court indicated it would hold a hearing on the proposed settlement. When a case gets filed and works its way through the court system, the parties necessarily always know more about what’s going on in the case than the court does. And if the parties want to settle a case that’s been filed, the court has to agree to the settlement. That’s because even though the parties know more about the facts of the case, the case itself belongs to the court once it’s filed (generally speaking).
The court held a hearing on the settlement on December 17, 2015. The court granted the parties’ settlement request. The practical effect of the settlement was that Mr. Palmer would get released from jail. On December 23 the court sent a new mittimus and sentence information to the Department of Corrections for a sentence computation, and on December 24 Mr. Palmer was released.
Mr. Palmer was upset and filed suit against Mr. Furlan and the State alleging legal malpractice and negligence. Mr. Palmer’s argument was essentially that the settlement’s effect was to get him out of jail as soon as it was approved, and that Mr. Furlan’s actions caused this to take too long. He argued that had Mr. Furlan alerted the court about the details of the settlement and its effect, Mr. Palmer would have gotten out sooner.
Mr. Furlan filed a motion for summary judgment at the trial court, which was granted. Mr. Palmer appealed, and SCOV affirmed.
As a reminder, a motion for summary judgment gets granted where there is no genuine issue of material fact, and if, taken in the light most favorable to the non-moving party, the moving party is entitled to judgment as a matter of law. If you can’t recite this by heart by now you are not reading enough SCOVLawBlog summaries.
I love the paragraph in this opinion that clearly and plainly sets forth the nitty gritty on the basics of negligence. It feels like a trip back in time to the first year of law school. It’s also a really great, accessible description of what negligence is.
There are 4 elements of negligence: duty, breach, causation, and harm. The actor must owe a duty to the plaintiff; the actor must somehow breach that duty; there must be actual harm to the plaintiff, and – this is the hard one – there must be a showing that the breach caused the harm.
When we’re talking about causation, there are two flavors: direct and proximate. Direct causation, or but-for causation requires showing that but for the actor’s action (or lack thereof) there would be no harm. Put another way, had I not dropped the glass on the sidewalk, the glass would not have broken.
On the other hand, there’s proximate cause. This one is a little harder. It requires a showing that the actor’s negligence was legally sufficient to result in injury because the consequences flowed from the actor’s conduct without interruption. In other words, the actor does something that sets forth a chain of events that leads to the harm. A very exaggerated example of how proximate cause works would be a Rube Goldberg machine– actions, without interruption, lead to a particular consequence.
SCOV says assuming for the sake of argument that even if Mr. Furlan had a duty to Mr. Palmer and breached that duty, the thousand-dollar question is whether there was causation. To be clear, SCOV does not come out and say there was a breach of duty; this is a causation discussion. But assuming there was a breach, there just simply isn’t causation.
To get to where Mr. Palmer is trying to go, it would have had to have been an uncontroverted fact that the court would have granted his settlement, and would have done so more quickly than it did. It’s too speculative to say that had there been other information before the court that it would have scheduled a hearing sooner, approved the settlement sooner, amended the sentence sooner, and sent the paperwork to the Department of Corrections sooner, thus getting him out of jail sooner. When there is this speculation, the court can’t say that all these things are true in the context of a summary judgment motion.
So, because of this, SCOV affirms.
Justice Eaton, joined by Justice Carroll, concurs.
The concurrence points out another piece of this. Well, two other pieces. First, the settlement in this case was one that took some time off Mr. Palmer’s sentence. This is effectively a sentence reconsideration. There is a time frame in the Vermont Rules of Criminal Procedure for sentence reconsideration, and this case was far outside that time frame, as far as the criminal division would be concerned. A sentence can be reduced through a PCR proceeding under some circumstances. The stipulation as presented didn’t cover one or more of those circumstances, so the court could not just sign off on the stipulation without additional information upon which findings could be made. The Court also cautions that PCRs aren’t meant to be used as a substitution for the procedure before the criminal division.
An argument was made that it’s a regular practice for parties in PCR cases to file stipulations and for the court to sign them. It’s essentially an argument of “we do it all the time” (yeah, yeah… you’re welcome if thisis stuck in your head now). If I have learned any practice pointers at all from reading every Vermont Supreme Court opinion for many years is that “we do it all the time” is not a solid argument. Justice Eaton likens this to people who regularly run a stop sign on a rural road; yeah, yeah maybe you do it all the time, but the legally-placed stop sign still has the force of law, and you’re actually supposed to stop at it.
The last thing the concurrence points out is that even if the parties had sought to get the case heard sooner, there’s no guarantee that the judge would have approved the settlement. Apparently initially this PCR was before Judge A, but it was actually Judge B who signed the stipulation. Now there’s an added layer of speculation that two judges would have acted in an identical way. Any attorney who regularly practices in court – especially criminal court – knows that judges sometimes reject agreements. To somehow say that Mr. Furlan acted negligently by not asking the court to expedite signing this stipulation leaves far too much in terms of speculation, since nobody could know if the judge would have agreed to sign it in the first place.
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