Do Hard Cases Make Bad Law?
The idea that hard cases make bad law is often repeated, but is not always correct. Law professors using the Socratic Method often change the facts of a hypothetical to flesh out the meaning and limitations of a legal principle for students.
For example, a law professor might say, it’s reasonable and therefore self-defense to use deadly force to protect oneself from an imminent threat of death or serious bodily injury. All would agree that a person who is attacked by knife wielding assailant is entitled to shoot to kill if the assailant is six feet away. But what about 10 feet? Twenty feet? Fifteen feet, but across a rushing stream?
I think it is nearer the truth to say that, like law students grappling with a changing hypothetical, hard facts help us to see the full implications of a rule. Then a judge or legislator draws upon an internal sense of fairness and justice to decide whether a rule should stand even though it creates an apparently unjust result, whether an exception should be crafted, or whether the rule itself should be consigned to the junk heap.
Vermont Supreme Court Decides Kuligoski v. Brattleboro Retreat
That is exactly the process the Vermont Supreme Court completed on Friday when it denied the motions to reargue and issued an amended opinion in Kuligoski v. Brattleboro Retreat.
The facts are hard: Michael Kuligoski was a furnace repairman working in basement of an apartment building in St. Johnsbury, Vermont on February 26, 2011. He never meet E.R, the young man who walked up behind Michael and assaulted him with his own pipe wrench and belt, and tried to drown him in bucket of water. Michael’s life was shattered. The family will never be the same.
E.R’s Psychiatric History
Before the attack, E.R. had been treated at three in-patient psychiatric facilities in Vermont. He had a history of violence and threats. He was released from the Brattleboro Retreat into the care of his parents, even though his condition, schizophrenia, had gotten worse in his last 24 hours at the hospital after he stopped taking his medication. His parents were given only limited information about his condition.
At home for a month, E.R. told his mother that he had stopped taking his medication again. She called the local community mental health agency, his after-care provider, Northeast Kingdom Human Services, which told her only that there was cause for concern, but — as her son was an adult — he would have to decide to take care of himself.
Within two months, E.R.’s father took him to work on is grandfather’s apartment building, and E.R assaulted Michael Kuligoski.
Superior Court Litigation
We sued the Retreat and NKHS in Windham County Superior Court, alleging that negligent discharge, failure to warn ER’s parents, failure to train them, negligent undertaking, negligent treatment, and negligent failure to treat, were proximate causes of the assault and the resulting damages.
Both defendants moved to dismiss, arguing that under Peck v. Counseling Service of Addison County, the duty of a mental health professional to protect third parties from dangerous mental health patients is limited to warning identifiable third parties who were at risk.
We argued that Peck did not control, and that mental health professionals should have a duty act reasonably to protect third parties, known or unknown, from the very small number of psychiatric patients who are dangerous, citing Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 41 (2012). The Superior Court dismissed and we appealed.
On Appeal, the Mental Health Industry Lines Up
On appeal, the entire mental health industry lined up against us: the Vermont Association of Hospitals and Health Systems, the Vermont Council of Developmental and Mental Health Service, Inc., the University of Vermont Medical Center, the Central Vermont Medical Center, the Rutland Regional Medical Center, and Disability Rights of Vermont, Inc. On reargument, even the State of Vermont, Agency of Human Services, sought reconsideration.
A Narrow Victory
But Friday’s decision gave our clients a narrowly won, (3-2, with written dissents from Chief Justice Reiber, and Justice Skoglund) and a narrowly crafted, victory. Even the majority declined to adopt Restatement (Third) and require that mental health professionals act reasonably to protect the public. Instead, the majority, in an opinion by Associate Justice John Dooley, held that the defendants had a duty to inform E.R.’s parents based on their active engagement with the providers, and their assumption of custody and caretaking responsibilities, putting them in the ‘zone of danger’ from E.R.’s conduct. It required that mental health providers convey ‘reasonable information to notify the caregiver of the risks, and of any steps he or she can take to mitigate the risks. It rejected the defendants’ arguments that doctor/patient privilege and HIPPA confidentiality precluded disclosure.
The Battle Is Not Over
Even though the Vermont Supreme Court is the final authority on questions of Vermont law, the decision does not bring this matter to an end, either with respect to the outcome of this case, or on the larger policy question.
Now, at trial we will have the chance to prove that the Retreat and NKHS failed to adequately inform E.R.’s parents of the dangers of assuming caretaking responsibilities for E.R. and that those failures were a proximate cause of the assault on Michael Kuligoski.
And it seems likely that, as has happened in some other states, the mental health industry will seek to overturn the policy of Kuligoski v. Brattleboro Retreat in the next session of our legislature. There is no one that I know of who will be paid to defend the rule in the legislative halls. But the result is not a forgone conclusion.
Sometimes Hard Facts Help to Improve the Law
Sometimes, as they did here, hard facts help to improve the law. As Chief Justice Reiber put it in dissent, the common law typically moves “like a tortoise that explores every inch of the way, steadily making advances though it carries the past on its back.” Although the Chief Justice sees the majority’s holding as “extraordinary in its scope and implications,” we see it as a small, but positive step. Not every lawyer, nor every personal injury lawyer, gets to help make even such slow progress occur.
I thank the Kuligoski family for entrusting me with representing them in this struggle. And I thank my associate, Matt Shagam, and my former colleague, Graydon Wilson, for their assistance in bringing this case this far successfully.
Advocating for justice for people have been seriously injured and working to make the law more just and more protective of public safety is a privilege that I do not take lightly.
 That maxim seems to come from Winterbottom v. Wright:
This one of those unfortunate cases…in which, it is no doubt a hardship upon the plaintiff to be without a remedy but by that consideration we ought not to be influenced. Hard cases, it has frequently been observed, are apt to introduce bad law.
Winterbottom v. Wright, 10 M&W 109 (1842) (Robert Rolf, J)(consumer injured by defective product had no legal action against the defective execution of a contract to which they were not expressly privy.), overruled, Donoghue v. Stevenson, UKHL 100, 1932 SC (HL) 31,  UKHL 3,  AC 562.
 2016 VT 54A.
 146 VT 6 (1985). Peck is one of the many progeny of Tarasoff v. Regents of University of California, 551 P.2d. 33 (Cal. 1976).
 2016 VT 54 ¶82.
 Id. at __, ¶ 61.
 Kuligoski at ¶85, quoting the late California Chief Justice Roger J. Traynor, Transatlantic Reflections on Leeways and Limits of Appellate Courts, 1980 Utah L. Rev. 255, reprinted in The Traynor Reader 200 (1997).