Earle v. State, No. S0272-01 CnC (Norton, J., Dec. 7, 2004) 

[The text of this Vermont trial court opinion is unofficial. It has been 

reformatted from the original. The accuracy of the text and the 

accompanying data included in the Vermont trial court opinion database is 

not guaranteed.] 

STATE OF VERMONT SUPERIOR COURT 

Chittenden County, ss.: Docket No. S0272-01 CnC 

EARLE 

v. 

STATE OF VERMONT 

ENTRY 

 State of Vermont seeks summary judgment on plaintiff Nathan 

Earle’s twelve counts of negligence against the Department of Social and 

Rehabilitative Services (SRS). Earle claims that he was sexually abused by 

N.C., a foster child, that the SRS failed to control or remove from Earle’s 

grandparents’ house. Earle also claims that SRS failed to remove him from 

his household, despite evidence of physical abuse by his mother. The State 

challenges these claims on a variety of theories, including sovereign 
immunity and the discretionary function exception. 

Undisputed Facts

 For the purpose of summary judgment, the facts are as follows. In 

1976, SRS placed N.C. in the home of Earle’s grandparents. Prior to his 

placement, N.C. had no history of sexually abusing others. In December 

1980, N.C. sexually molested Earle and his brother. This incident was 

reported, and SRS confirmed it to the extent that it involved Earle’s brother. 

This abuse had actually begun in 1979 and appears to have involved more 

than one incident although in 1980 SRS only had evidence of the single 

incident.1 SRS enrolled N.C. in counseling and monitored him through 

periodic visits from a social worker. In April 1982, the Earles told SRS that 

N.C. had again molested Earle’s brother. SRS recommended that N.C. be 

prosecuted and removed him from the Earle’s home in September 1982. 

There is no evidence that N.C. molested Earle in1982 or that either brother 

was molested after the April incident. N.C. had no further contact with 

Earle. 

 Earle’s mother, before, during, and after the incidents with N.C., was 

working with SRS through another social worker. This assistance was 

unrelated to N.C. and his placement in the grandparents’ household. 

 

1

 It is unclear when SRS learned about Earle’s molestation. The evidence 

shows that the brother’s molestation was specifically brought to its attention, but 

as of 1980 SRS was at the very least aware that Earle had probably been molested 

by N.C. though it is unclear to what extent SRS was aware of the specific acts. 

From the record, Earle testifies that he knew of three incidents and a fourth that he 

recently recovered from his memory. The dates of these incidents are unclear, but 

they appear to have happened between 1979 and 1981.
Earle’s mother was under a plan of assistance, based on trouble she was 

having raising Earle and his brother. SRS involvement included working 

with the mother in dealing with depression and stress, support from a social 

worker, and counseling to stop her overly physical method of dealing with 

Earle and his brother. SRS also put Earle and his brother into an “at risk” 

day care progam and intermittent therapy. SRS continued to monitor 

Earle’s mother throughout the 1980s. She and her children continued to 

participate in some therapy sessions, but her physical abuse continued. 

These incidents of abuse vary from a report by the children’s care providers 

that Earle’s brother had red marks on his face from where he had been 

slapped too hard by his mother to Earle’s recollections that his mother 

would smack him on the head with a billy club. 

 Earle’s behavior deteriorated as a result of these traumas, and in the 

next few years, he showed self-destructive behavior, anti-social tendencies, 

and problems at school. When he turned 17, SRS removed Earle from his 

mother and put him in foster care. This did not change Earle’s depressive 

and self-destructive behavior, and he spent time at the Brattleboro Retreat 

to curb his outbursts of violent behavior directed at his mother and himself. 

Earle turned 18 in 1995. In 1996, his brother filed a complaint against SRS 

for failing to protect him from N.C. Earle was not a part of that suit but 

was aware of it. Earle has since moved to Maine and enrolled in college. 

Since 2000, he has been in therapy where he has recovered several 

memories of childhood. 

Legal Analysis

 Earle has brought 12 claims against the state of Vermont for the 

combined sexual and physical abuse that N.C. and his mother inflicted on 

him. While Earle has not made any distinction as to which claims 
correspond to which facts, for present purposes these claims must be 

analyzed through their unique and respective factual premises. 

Earle’s claims based on N.C.’s sexual abuse

 Earle’s claims based on N.C.’s abuse can be divided into before and 

after SRS’s discovery that N.C. had molested Earle’s brother. Before SRS 

had reports of N.C. actually abusing Earle or his brother, Earle claims SRS 

should have taken precautions to protect him before placing N.C. in his 

grandparent’s household. As there was no official relationship between 

Earle and SRS at the time, he question of SRS’s liability is more properly 

stated as whether it had a duty to control N.C., and whether it breached that 

duty by putting N.C. into a household where he would have contact with 

Earle.2 

 The Vermont Supreme Court has established four factors to 

determine whether a governmental body has undertaken a duty of care 

toward specific individuals. Sorge v. State, 171 Vt. 171, 174 (2000). The 

factors are: (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. (citing Sabia v. State, 164 Vt. 293, 

299 (1995)). 

 

2

 This analysis will set aside, for the moment, any issue of sovereign 

immunity as raised by the State. 
 Of these four factors, the Court has emphasized the primary 

importance of the first factor. See Sorge, 171 Vt. at 175 (discussing Sabia’s 

reliance on the first factor in determining liability). This is to such an 

extent that it appears that a failure to find a statutory basis for liability 

condemns plaintiff’s case. See generally id. (affirming summary judgment 

without further discussion when plaintiffs were unable to demonstrate 

either a statutory or common law basis for liability under factor one).3 This 

is consistent with the general principle of sovereign immunity, which 

permits claims against the government only to extent that the government 

has clearly waived its immunity and within the structure of private 

negligence actions. Denis, 159 Vt. at 484–85. 

 In regards to this first factor, Earle does not cite any statute that 

would assign the state a duty of care over him prior to the 1980 discovery 

of sexual abuse.4 The only relationship Earle cites to is a “special 

relationship” that he also argues was created when SRS learned of N.C.’s 

abuse. Earle’s only argument for any duty of care prior to the December 

1980 abuse is similar to the plaintiffs in Sorge; SRS owed him a duty of 

care based on SRS’s failure to control N.C. This duty is premised on SRS’s 

custody of N.C. and an exception to the general rule that there is no duty to 

 

3Cf. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 487 (1993) (adopting the 

four factors as “useful indicia” and noting that the first “goes directly to the heart 

of plaintiff’s argument”). 

4

Earle does argue a duty of care from SRS’s dealings with his mother, this 

issue is addressed below and has nothing to do with SRS’s placement of N.C. It 

is unclear from his statement of facts when Earle believes SRS had a duty to 

control. The court’s analysis, in this part, reflects less on Earle’s main arguments 

and more on a desire to analyze his asserted material facts and claims in a 

coherent and logical manner. 
control others. Restatement (Second) of Torts § 315. Citing the common 

law exception, the plaintiffs in Sorge argued that SRS custody created a 

“special relationship” between the foster child and SRS, which made SRS 

liable to others for the foster child’s actions. Sorge, 171 Vt. at 176–77. 

 The Court roundly rejected this theory of liability by noting that SRS 

custody is not established for the purpose of “control.” Id. at 179. Unlike a 

private sanatorium where the purpose of the facility was to “control” the 

individual by “securing him” within its confines, SRS custody is meant to 

rehabilitate juvenilles and re-institute them to their family and the public. 

Id. The public policy adopted by the legislature in its statutes governing 

SRS custody demonstrated an intent to shift some risk onto the public—that 

foster children might assault or molest others—in return for the benefit of 

rehabilitating them and taking measures in their best interest, such as a 

stable home life with parents rather than institutional care. Id. at 180. As 

the facts of Sorge illustrate, this principle extends to juveniles in SRS 

custody regardless of their history. See id. at 173, 180–81 (declining to 

assign a duty of care despite child’s known history of “violent, assaultive, 

and delinquent behavior”). 

 In this case, the court cannot find a cause of action for negligence 

based on N.C.’s actions to Earle prior to December 1980. Like Sorge, there 

was no prior relationship between SRS and Earle. The sole relationship 

between SRS and N.C.5

 produces no evidence that would illustrate that 

 

5

 Unlike the minor in Sorge, N.C. was not in SRS custody for delinquency. 

This difference, however, does not change the similarities in relationships, which 

are essentially custodial. If anything, this difference reflects a lower expectation 

for SRS in N.C.’s case since the risks and responsibilities of rehabilitative care are 

not implicated here. 
SRS knew or had reason to know that N.C. posed a threat to the general 

public or to Earle in particular. When it placed N.C. in the grandparents 

household, SRS was following its statutory mandate. See 33 V.S.A. §§ 

305, 3501 n. Permanency Planing. Its continuing legal custody of N.C. did 

not amount to “control,” and therefore did not require SRS to take any 

further actions. 

 Moving forward in time to the period following SRS’s discovery of 

sexual abuse, the same Sorge analysis applies to Earle’s claims that SRS 

owed him a duty to control N.C. As Sorge makes clear, the very nature of 

SRS’s custodial relationship precludes a duty of care to others. While the 

facts of this case raise some questions about the limits of Sorge’s balancing 

when SRS knows one of their children to be a realized threat, they do not 

suggest behavior so egregious or completely foreseeable that N.C.’s actions 

might have somehow modified his relationship with SRS and changed its 

duty to control. 

 Earle’s arguments for SRS liability after December 1980 also 

emphasize another source of duty, namely one that SRS directly owed to 

Earle once it was aware of the sexual abuse. Under current statutes, SRS 

has a duty to a child once a report of sexual abuse is made. 33 V.S.A. § 

4915. This duty includes investigating the incident and making a 

determination of the risks of keeping the child in the household. Id. Thus, 

Earle argues, SRS owed him a duty to remove N.C. or himself and prevent 

further abuse.6

 

 This argument brings the analysis back to the issue of sovereign 

 

6

 Again, it is unclear if Earle suffered any further abuse after December 

1980. For the purposes of summary judgment, the court accepts that at least one 

incident appears to have occurred after December 1980. 
immunity. The general rule is that the State of Vermont and its agencies 

are immune from private actions unless it is waived. Denis, 159 Vt. at 

484–85. Under 12 V.S.A. § 5601, the State has waived its immunity for 

certain tort actions. Id. This waiver, however, depends on the nature of the 

claim. If the cause of action is an “ordinary common-law tort,” such that a 

private person in the circumstances of the government would be liable, then 

§ 5601 (a) allows plaintiffs to recover. Id. This is know as the “private 

analog” test. SRS is liable for Earle’s injuries only if Earle’s cause of 

action is comparable to a cause of action that he could raise against a 

private citizen. Id. This test excludes actions that are uniquely government 

functions and do not have a private analog. LaShay v. Dep’t of Soc. & 

Rehab. Servs., 160 Vt. 60, 69 (1993). 

 Earle urges this court to analyze SRS’s actions and inactions under 

Sabia v. State, which found that SRS had a duty under 33 V.S.A. §§ 4911, 

4915 to protect children after reports of abuse. 164 Vt. 293, 299–304 

(1995) (noting that 12 V.S.A. § 519 created a private analog for this duty). 

There are several problems, however, with a straightforward application of 

Sabia to the present case. 

 First, the State correctly notes that §§ 4911 and 4915 were not in 

effect at the time.7

 While § 4911's antecedent—13 V.S.A. § 1351—is 

exactly the same, § 4915's does not share the detailed enumerated 

responsibilities of its successor. That said, the statutes do share two key 

 

7

 These statutes were originally adopted as 33 V.S.A. §§ 681,685 and took 

effect April 25, 1982. 1981, No. 207 (Adj. Sess.), §§ 1, 5. The purpose of the 

amendments was to create a “successor to and continuation of chapter 27 of title 

13 relating to reports of physical abuse of children.” Id. at § 4. The relevant text 

of chapter 27 is available at 1973, No. 237 (Adj. Sess.). 
provisions that Sabia found to be important: (1)“[SRS] shall cause an 

investigation to commence within seventy-two hours after receipt of a 

report [of child abuse]”; (2) if the investigation produces evidence of abuse 

or neglect, SRS “shall cause assistance to be provided to the child and his 

family in accordance with a written plan of treatment.” 164 Vt. at 299. For 

the Court, these two provisions along with § 4915's additional provision—

requiring SRS to visit the child’s home and interview/observe the child—

worked with § 4911's purpose to create a statutory duty that satisfied the 

first of the four factors which determine whether a governmental body has 

undertaken a duty of care to specified persons. Id. In this case, 

notwithstanding the lack of certain detailed responsibilities in § 1355, the 

statutory duty established by §§ 1351, 1355 are nearly identical and trigger 

the same duty of care. 

 Once this duty of care emerges, however, the other three factors 

become problematic. SRS had knowledge about N.C.’s abuse of Earle’s 

brother as early as December of 1980, but it is not clear when and to what 

extent it knew of Earle’s abuse. Much of Earle’s abuse was suppressed and 

never reported to SRS. Nevertheless, it was not unreasonable for SRS to 

extrapolate from its knowledge about Earle’s brother to consider the danger 

posed to Earle. Yet, this knowledge does not translate to reliance, the third 

factor. SRS received one report about Earle’s brother in December 1980. 

In addition to the counseling that N.C. received, SRS also enrolled Earle’s 

brother in “at risk” day care and sent him to therapy. To the extent that 

SRS made any promises, they were to Earle’s brother and his mother. 

Earle’s harm was not reported to SRS at the time. Nor did SRS make 

promises to Earle and his immediate family, which discouraged them from 

seeking alternative relief. As to the final factor, the facts are inconclusive. 

Certainly N.C.’s removal in 1980 would have prevented further harm to 

Earle and his brother, but it is not clear that this failure to remove was 
because of a lack of due care since SRS did take some reasonable measures 

to prevent further abuse. Notwithstanding these mixed results and the 

question they raise about how Sabia should be applied in such a situation, 

there is enough evidence to move forward in the analysis. Cf. Denis, 159 

Vt. at 487 (using the four factors as indicia). 

 The issues of reliance and due care do raise a larger question about 

SRS activity. This directs the court to the question of whether there is a 

private analog to Earle’s claim of negligence against SRS. In Sabia two 

sisters reported abuse by their stepfather at different times, through 

different, credible sources. 164 Vt. at 297. SRS took both reports and did 

nothing. As a result, the sisters endured 4 years of continuing sexual and 

physical abuse at the hands of their step-father. Id. When the sisters 

brought suit, their claim was not that SRS’s actions had been ineffective or 

that SRS should have removed them from their step-father; their claims was 

a more basic claim of relief founded upon SRS’s total failure to do 

anything. Id. at 301 (“[P]laintiffs’ actual complaint is that SRS failed to 

provide any assistance whatsoever, despite its statutory duty to do so.”). 

 In contrast, SRS did act in the present case. It enrolled N.C. in 

counseling; it monitored N.C. through a social worker; it enrolled Earle’s 

brother, and later Earle, in “at risk” day care and therapy; and it worked 

with Earle’s grandparents to deal with N.C. Therefore, Earle’s claim is 

necessarily a more narrow claim that SRS failed to remove N.C. or Earle 

from their respective households. This is Earle’s true claim because the 

larger duty to take steps to protect or “cause assistance to be provided” 

were factually met on some level. Earle’s argument is that these actions 

were not enough; that as long as N.C. lived with his grandparents, or Earle 

lived close by, Earle was at risk of further abuse and SRS was not 

protecting him. To the extent that this is Earle’s claim, it cannot stand 
because it lacks an analogous private action. Removing children from 

households is a uniquely government function, and there is no private 

equivalent. LaShay, 160 Vt. at 69; see also Sabia, 164 Vt. at 301 (broader 

interpretation of private analog appropriate only where state failed to do 

anything). 

 Earle’s remaining claims concerning N.C. are base on the negligence 

surrounding SRS’s actions to prevent further harm.8

 According to Earle, 

SRS should have recognized through their counseling and monitoring of 

N.C. that he was a continuing threat and that the initial incident of sexual 

abuse was a harbinger not an aberration. This argument faults SRS’s 

choices and urges the court to allow a jury to find negligence. This 

argument is impermissible under 12 V.S.A. § 5601(e)(1), which bars claims 

attacking the discretionary functions of an agency. This exception to tort 

liability, known as the “Discretionary Function Exception,” was created to 

prevent courts from invading the province of other branches of government 

and passing judgment on legislative or administrative policy through tort 

law. Sabia, 164 Vt. at 307. While the exception does not apply to actions 

that the State must take—doing something after a child abuse report—it 

does protect judgments or choices that agencies make—what they chose to 

do. Searles v. Agency of Transportation, 171 Vt. 563, 563 (2000) (mem.). 

If the action involves an “element of judgment or choice,” then the court 

must determine “whether that judgment is of the kind that the discretionary 

function exception was designed to shield.” Id. (quoting United States v. 

Gaubert, 499 U.S. 315, 322–23 (1991)). 

 

8

 This also includes any claim that N.C. should have been removed from 

the grandparents’ home to the extent that such a claim would survive under 

LaShay or Sabia. 
 In this case, SRS was faced with a report of child abuse. Under the 

existing statute, 13 V.S.A. § 1355, it had a duty to investigate and render 

any assistance it deemed necessary. Earle cites to no statutory standard or 

rule that dictates how SRS must access a child’s need or what assistance 

must be rendered in each case. Instead, he offers competing analyses that 

dispute SRS’s assessments and decisions as well as offering reasons why 

SRS should have acted differently. This evidence does not disprove the 

judgmental nature of SRS’s decisions. If anything, it demonstrates the 

subjective nature of SRS’s role and the alternative considerations that 

agency might have used to make its determination. 

 This is precisely what the exception was designed to avoid. This 

court has no business second-guessing and re-hashing SRS decisions and 

assessments conducted 22 years ago. The policy considerations that SRS 

used in its decision to seek therapy for N.C. rather than removing him, may 

in retrospect have been flawed and led to further harm, but there is no 

evidence that SRS failed to assess the problem or seek some relief to 

prevent N.C. from repeating his crimes and harming Earle or his brother. 

Given that such decisions lie beyond the scope of this court’s tort review, 

plaintiff’s claim against SRS for negligence concerning the placement of 

N.C. are dismissed. 

Earle’s claims for relief for his mother’s physical abuse

 Earle’s remaining claims against SRS concern their failure to 

prevent physical abuse by his mother. From the evidence, Earle’s claims 

satisfy the initial problems of sovereign immunity in that they appear to 

trigger the same duty of care that N.C.’s abuse trigger through 33 V.S.A. § 

4915. But once more Earle’s claims raise the twin issues of private analog 

and discretionary function exception. 
 From roughly 1978 until Earle’s removal in 1994, SRS worked with 

Earle’s mother through a plan of assistance to develop her parenting skills 

and prevent her abusive outbursts. As with N.C., SRS monitored the family 

through a social worker and provided intermittent therapy to Earle’s mother 

as well as Earle to help them deal with various issues. Earle’s claim in this 

respect is not that SRS failed to act, but that its failure to remove him from 

his mother earlier proximately caused him to suffer further injuries at her 

hands.9

 Again, the problem is not that SRS did not act, as a private actor 

could, to provide relief or some assistance, but rather that it did not provide 

enough and did not remove him from his home soon enough. Under the 

test, there simply is no analogous private right of action to SRS’s negligent 

failure to remove Earle from his home sooner. LaShay, 160 Vt. at 69. 

 This leaves the claims that SRS should have responded more 

aggressively, which falls under the discretionary function exception. As 

with N.C., SRS’s actions toward Earle and his mother reflect discretionary 

judgments wrought with policy considerations—such as the child’s safety 

and the preservation of the home. It would be improper for tort law to 

invade this discretionary area and subject what are SRS judgments made 

over time to the Monday morning objectivity of tort law. For this reason, 

Earle’s remaining claims for summary judgment based on his mother’s 

abuse are denied. 

 

9

 It is also unclear what kind of physical injuries Earle suffered through his 

mother. Earle has presented evidence that he has recovered memories of beatings

and being hit with a billy club, but he did not present any evidence, aside from 

cumulative psychological damage, of their severity or frequency. It is also 

unclear from Earle’s evidence how much SRS was aware of these incidents.
Motion for Default

 Finally, Earle seeks default judgment and sanctions against the state 

for not filing a second amended answer to his second amended complaint. 

This defect has been at least partially cured by the state’s filing of a second 

amended answer. The question is whether this answer is permissible under 

V.R.C.P. 15. Earle argues that the answer should be disallowed because 

Rule 15(a) only gives a party 10 days to plead in response to an amended 

pleading. The state argues that the Rule 15(a) clock has not begun because 

Earle has not “served” the second amended pleading since receiving leave 

to do so from the court. This contention would seem to be disputed by the 

Vermont Supreme Court’s analysis of a similar situation in Sweet v. Roy. 

173 Vt. 418, 429–30 (2002). In that case, the Court rejected an appeal 

based on a party’s failure to separately serve an amended complaint after 

receiving leave to amend it where the motion to amend contained the 

amended pages of the complaint. Id. The Court rejected this argument as 

“a technical rule that elevates form over substance.” Id. at 430. 

 At the same time, Earle’s argument rings hollow within the context 

of the situation at hand. Regardless of the nature of Earle’s motion, the 

State is essentially seeking to amend its pleadings to conform to Earle’s 

new factual allegations and claims. The Rules of Civil Procedure and the 

common law encourage liberality in this area where there is no prejudice to 

the other party. Bevins v. King, 143 Vt. 252, 254–55 (1983) (“When there 

is no prejudice to the objecting party, and when the proposed amendment is 

not obviously frivolous nor made as a dilatory maneuver in bad faith, it is 

an abuse of discretion to deny the motion.”). Earle has made no showing of 

prejudice and has only argued for a technical application of Rule 15(a)’s 

deadlines. Indeed, the State’s opposition should come as no surprise to 

Earle considering its previous, vigorous response to his earlier claims. 
From the record it appears that the parties have conducted discovery and 

filed motions consistent with a trial on the merits of the old as well as the 

new claims. Furthermore, these new facts do not substantively raise new 

claims as they are extensions of his prior two complaints. As both parties 

have been actively litigating these claims and have prepared to bring them 

to trial, granting a default judgment on these facts, now, would avoid the 

substantive legal arguments raised by both sides, and rob the court of the 

opportunity to adjudicate these claims on the merits. V.R.C.P. 1. In other 

words, it would be a technical victory over substantive law. 

 Rule 15(a) allows a party to respond to an amended pleading either 

10 days after service of the amended pleading; within the time remaining to 

respond [under Rule 12]; or as the court otherwise orders. In this case, the 

court will allow the State’s second amended answer to be entered and deny 

Earle’s motion for default. 

 Based on the foregoing, defendant State of Vermont’s motion for 

judgment is granted. Plaintiff’s motion for default judgment and sanctions 

is denied. 

 Dated at Burlington, Vermont________________, 2004. 

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