Blair v. State, No. 546-9-00 Wncv (Katz, J., July 11, 2005)

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STATE OF VERMONT                                      SUPERIOR COURT
Washington County, ss.:                          Docket No. 546-9-00Wncv

Blair

v.

State of Vermont

                                   Entry


       Prior to jury trial in August 2004, the court (Judge Cook presiding)
severed amended Count IX (the denial of access to courts claim) from the
other claims to be submitted to the jury. At trial, the court dismissed all
other claims except for negligent supervision, which was submitted to the
jury. Upon failing to reach a verdict, the jury was declared hung on that
claim. We address here these two remaining claims.

      This entire case arises out of claimed sexual misconduct by Officer
Martin, harming Blair.

       Blair does not spell out the elements of his negligent supervision
claim. The claim seems to be based on the general feeling that the
atmosphere of the Caledonia Work Camp was uncontrolled by reasonable
supervision and training leading to pervasive problems with misconduct by
the guards, particularly Officer Martin. Due to the hostile atmosphere, the
claim goes, prisoners such as Blair were paralyzed with fear of retribution if
they filed grievances, and so they did not, perpetuating and magnifying the
harms. Blair also argues that the State should have instituted different rules
relating to sexual harassment and grievance procedures, and a distinct set of
rules relating to work obligations.

        The primary problem with Blair’s argument is that, after five years
of litigation, still he offers no significant evidence in support of it.
Essentially, Blair argues that a previous grievance filed by him (not relating
to Martin or sexual harassment issues) did not lead to the result he desired.
That grievance was investigated internally and then dismissed on a finding
that Blair’s allegations were untrue; it appears to have not been litigated
further. Nothing interfered with Blair’s ability to file that grievance and no
retribution resulted from it. Blair never filed a grievance about Martin.
When a different inmate did so, a police investigation quickly ensued, the
matter was referred to a state prosecutor for possible prosecution, and
Martin’s employment with the DOC ended. Based on this evidence, we can
only conclude that the grievance policy worked effectively regarding
Martin’s misconduct the very first time it was used. Blair’s claimed fear
about using the grievance policy appears to have no objective basis in the
evidence whatsoever.

       Blair also claims that the DOC should have had other rules in place
regarding officer training, the sexual harassment policy, and special rules
applicable to the workplace setting. The State has outlined its policies,
training protocol, and the trainings Martin actually participated in. Blair,
however, does not explain where the shortcomings are. He merely asserts
that other rules should have been in place. We fail to see how any breach
could be determined, or causation established, on this record.

       Blair’s negligent supervision claim amounts to little more than the
claim that the fact of Martin’s sexual misconduct proves the negligent
supervision. Negligent supervision, however, is independent of the
underlying tort, Brueckner v. Norwich Univ., 

, 126 (1999), even
though the underlying tort is an element of it, Haverly v. Kaytec, 

350, 357 (1999). Blair has the burden of proof with regard to all the
ordinary elements of a negligence claim. See 

.
Under § 213 of the Restatement (Second) of Agency,

       Liability results . . ., not because of the relation of the parties,
       but because the employer antecedently had reason to believe
       that an undue risk of harm would exist because of the
       employment. The employer is subject to liability only for
       such harm as is within the risk. If, therefore, the risk exists
       because of the quality of the employee, there is liability only
       to the extent that the harm is caused by the quality of the
       employee which the employer had reason to suppose would
       be likely to cause harm.

Restatement (Second) of Agency § 213 cmt. d. We see no factual basis for
any conclusion that the State should have known, prior to the grievance,
that Martin presented an unusual risk of sexual misconduct. Similarly, we
see no basis for concluding that the State failed to make or follow policies,
or that the policies in place were somehow insufficient, and contributed to
an environment in which such misconduct would arise. See generally 

(inadequate regulations). In short, we see no basis for Blair’s
negligent supervision claim. We need not address the State’s other
arguments for rejecting this claim.

         Blair’s final claim is for denial of access to courts. Evidently, during
this litigation, the DOC determined to transfer Blair to an out-of-state
prison location after finding him responsible for organizing boxing
matches. Blair did not want to be transferred. He alleges that the State
then made him a settlement offer in this case: settle for a small amount and
you will not be transferred. He rejected the offer. He does not allege that
the State’s offer had any effect whatsoever on this litigation, and we see no
basis for any such claim. Minimally, to have a claim for denial of access to
courts, there must be some kind of denial involved. See Christopher v.
Harbury, 

, 413-15 (2002) (discussing the types of denial of
access cases). “Whether an access claim turns on a litigating opportunity




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yet to be gained or an opportunity already lost, the very point of
recognizing any access claim is to provide some effective vindication for a
separate and distinct right to seek judicial relief for some wrong.” 

The rejected settlement offer episode did not cause Blair to be
“shut out of court” in any manner. 

The evidence does not
reasonably support a conclusion that Blair was transferred because he
pursued this litigation.




      Blair’s final two claims are dismissed.




    Dated at Montpelier, Vermont, __________________________, 20___.




                                           __________________________
                                                                Judge




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