The Vermont Supreme Court recently issued a decision affirming the principle “that in general a person does not have an affirmative duty to ‘protect, aid or rescue’ another.’” Buxton v. Springfield Lodge, 2014 VT 52, ¶ 8. The element of “duty” is an essential element of every negligence lawsuit involving personal injury. Without a legal duty owed by the defendant to the plaintiff, the lawsuit will be dismissed.
In Buxton v. Springfield Lodge, the plaintiff was a guest at the Springfield Lodge No. 679 Loyal Order of Moose, and he suffered injuries when a fight broke out between two other guests. In the lawsuit, the plaintiff claimed, in part, that the “governor” of the Lodge (the highest position in the Lodge hierarchy) was negligent by not taking some action to prevent the fight. The question for the Court was whether the governor owed a legal duty to the plaintiff to prevent the fight from occurring. The Court held that the governor did not because generally there is no duty to control the conduct of a third person to prevent him from causing physical harm to another.
Although the plaintiff was unsuccessful in this circumstance, the Court recognized that a duty could arise in some circumstances when a person voluntarily undertakes a duty to protect a third person from harm. For example, when a police officer undertakes the duty to check on an elderly woman in her home, liability can arise if the officer is negligent in performing the duty. See Kennery v. State, 2011 VT 121. Absent the undertaking, as in this case, the negligence lawsuit will fail.
A complete copy of the decision can be found here: http://info.libraries.vermont.gov/supct/current/op2012-398.html