perry v. state

STATE OF VERMONT _..
WASHINGTON COUNTY, SS. -

SH

MY OCT 29 P 1: 00
‘Washington Superior Court
Docket No. 260-5-99 Wncv

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ry

Marianne Long Perry

Vv.

Nem nee Nee Nee” ee”

State of Vermont, et al.
ENTRY ORDER
This matter is before the court on the State’s “Motion for Permission to Appeal.” Plaintiff is represented

by James W. Runcie, Esq. The Defendant is represented by Bridget C. Asay, Special Assistant Attorney General.

On August 20, 1999 this court denied Defendant State of Vermont’s Motion to Dismiss the action against
it. Defendant State of Vermont seeks permission for an interlocutory appeal to the Vermont Supreme Court
pursuant to V.R.A.P. 5(b).! Dismissal of a claim for failure to state a cause of action should not occur unless it is
beyond doubt that there are no circumstances or facts which plaintiffs could prove that would entitle her to relief.
See Association of Haystack Property Owners, Inc. v. Sprague, 145 Vt. 443, 446 (1985). In considering such a
request, the court must accept as true all well pleaded facts alleged. See Jn re Gorton, 167 Vt. 357, 358-59 (1997).
Under notice pleading, facts set forth in a complaint need not be specific, but only need be sufficient to put
Defendants on notice of the cause of action. See V.R.C.P. 8(a); Lane v. Town of Grafton, 166 Vt. 148, 153 (1997)
(“[A] pleading is sufficient as long as it gives fair notice of the claim and the grounds upon which it rests.”).

Plaintiff has alleged that Defendants’ actions in withholding and or giving inaccurate information about the
location of her son’s body after his suicide were willful or reckless. (See Pl.’s Compl.) In response to the Motion
to Dismiss, Plaintiff has cited cases that show that depending on the facts that are developed through the discovery
process, and depending on the court’s analysis of the applicability of developments in the common law to those
facts, there may be a basis for Plaintiffs claim or claims. (See PI.’s Mem. of Law in Resp. to Mot. to Dismiss.) If

Plaintiff is able to make out a cause of action against the Defendant Rutland Hospital, Inc., such claim may

‘Defendant Rutland Hospital, Inc.’s Motion to Dismiss was also denied the same day. Defendant Rutland
Hospital, Inc. has not sought permission for an interlocutory appeal.

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constitute a private analog that would make Defendant State of Vermont’s claim of sovereign immunity
inapplicable.

For these reasons, dismissal of Plaintiff's claim at this early stage in the case, prior to-discovery, is
unwarranted, because, as Judge Jenkins explained in his decision: “Pleading is a matter of notice only. The court
can’t say that beyond doubt there is no way that plaintiff can recover.” (Entry Order, Aug. 20, 1999.)

The court cannot conclude that there is “substantial ground for difference of opinion” on whether or not to
dismiss the claim at this stage in the proceeding. V.R.A.P. 5(b)(1). There may be substantial ground for difference
of opinion in the future on whether or not Plaintiff has shown a basis for a cause of action, but there will be an
opportunity for that to be addressed later in the case after specific facts have been developed. It would be premature
to make a ruling before discovery. At this stage, the question is wnether, based upon facts that only need to meet a
notice pleading standard, there is no doubt that Plaintiff will never be able to make out a case. The court cannot say
that different judges would have substantial ground for a difference of opinion on the question of dismissal. The
court concludes that judges would generally agree that at this stage in the proceeding, it is not certain whether
Plaintiff can make out a case or not, and therefore dismissal is unwarranted. Because that is the legal issue, and that

is a point about which there is not substantial ground for difference of opinion, Defendant State of Vermont has not

presented a basis for interlocutory appeal.

Based on the foregoing reasons, permission for an interlocutory appeal pursuant to V.R.A.P. 5(b)(1) is

DENIED.
Dated at Montpelier, Vermont this 2¢+4+ _ day of Octstery 1999,

Va WY ibs Sache
Hon. Mary] Miles Teachout
Superior Judge, presiding