Rock v. State, 681 A.2d 901

Rock v. State

681 A.2d 901

R.I.

1996

Check Treatment

*1 et Peter ROCK al. J. al. of Rhode Island et

STATE 94-618-Appeal.

No. Island.

Supreme Court Rhode

Aug. Wall,

Stephen Rappoport, Maria Medeiros Providence, for Plaintiff. Providence, Violet, M. East James

Arlene Sarli, Lee, L. Wheat- R. William Michael G. Providence, ley, for Defendant. OPINION MURRAY, Justice. wrongful-death before us is case Rock plaintiffs,

action Peter J. filed (plaintiffs), against a and Linda K. Rock including defendants the State of number of Ser- Rhode Island and Technical vices, out (Motoring). This action arises Inc. plain- of the assault and murder sexual Rock, Kimberly Ann daughter, tiffs’ minor (Jewett). During the course Robert Jewett below, Motoring filed a the proceedings judgment, summary motion for *2 granted by Superior August against Motoring, complaint the Court their claim the alleged “Motoring duty 1994. This case comes us now on the that owed a of care before included, Kimberly Ann appeal by plaintiffs summary the Rock which inter the alia, duty judgment Motoring. adequately in monitor su- entered favor of This a Training E. appeal pervise therefore defendant Mo- School inmate Robert involves the toring only. in reviewing participant After the record be- Jewett while he was a the us, placement] Program Superior entry [temporary-community fore we affirm Court’s the summary judgment Motoring. M[otoring] in Motor- S[chool].” favor Defendant summary ing subsequently filed a motion for giving appeal The facts instant rise to the arguing duty judgment, owed no are as follows. Jewett an inmate at was plaintiffs under the facts of case. the instant Training (training Rhode Island School justice found Superior agreed The Court school), charge sentence on plain- did that not owe a first-degree twelve-year- sexual assault of 30, 1994, judg- August summary tiffs. On girl; at the old Jewett was a minor time he Motoring. entered in The ment was favor of charged was with that crime. While incar- plaintiffs appeal have now filed the instant cerated, participated temporary Jewett ain with court. As issues this we address the community-placement program with Motor- appeal, any in as raised this additional facts ing. Motoring ais vocational-train- necessary may provided. will be be open general public. school to the pause We now to make an observation application In his at Motor- program respect to one the facts as related ing, Jewett indicated that incarcerat- he was nothing find in be- dissent. We the record breaking only. entering ed Neither deposition fore in reference to us (McCut- Jewett nor Robert McCutcheon Ring Thomas that would Motor- have alerted cheon), agent in capacity as an for the state, ing, this first-time venture with the state, provided any to Motoring information inmate had The this violent tendencies. regarding prior adjudication for sex- quoted cases the dissent involve entities ual assault. inform McCutcheon did Motor- admitting in the in- which were business of however, ing, Jewett was treated enti- mates. The case before us involves an “like other student.” was not to Jewett indicates, ty, as the record not which did given any special supervision. He also it a business to take in This make inmates. informed that Jewett would be es- Motoring’s was first and last contact with Motoring’s corted and from a penal system of the State of Rhode Island. transport state van and that was to Jewett addition, premises. his lunch on In eat reviewing granting or When was to contact the school summary judg of a the denial motion for

whenever Jewett was absent whenever a ment, analysis applies court this the same disciplinary problem arose. On about justice motion applied. See E.W. 22, 1990, January began classes at Sons, Inc. v. In Audet & Fireman’s Fund Motoring. Co., (R.I.1994). surance 635 A.2d 1181 Rule 56(e) Superior of Civil Rules 8, 1990, February during morning On on a provides hearing that after a Procedure recess, Motoring’s premises. Jewett left He summary judg judgment, “[t]he motion for plaintiffs’ home, was located entered if sought ment shall be rendered forthwith Motoring, approximately one block from pleadings, depositions, inter answers to sexually assaulted and murdered file, rogatories, together and admissions on 30, 1991, daughter. minor Jew- On October affidavits, any, with the show that there pleaded guilty first-degree ett murder and genuine issue as to material fact imprisonment. sentenced to life was moving party judgment that the is entitled to have the instant matter of law.” Our review includes [a] now filed wrongful-death examining pleadings numerous and the action de- affidavits including regard light party opposing In favorable fendants most Sons, Inc., by plaintiffs’ contentions persuaded & 635 are the motion. E.W. Audet supervise under uphold Superior A.2d at We shall under summary or that granting Court’s order juvenile rec- investigate further into Jewett’s “[o]nly our reveals no issues review *3 type of harm in order the fact, ord to moving party enti material the is by a of plaintiffs as result sustained judgment tled to as matter of Bar a law.” nothing in 1219, There the criminal actions. is Burlingham, ratt v. 492 A.2d 1220 (R.I.1985). Motoring could to that have record indicate reasonably that would leave foreseen Jewett argue justice the plaintiffs Here that trial Motoring’s premises sexually assault and granting summary in fa- erred daughter. minor murder Motoring. They of contend material vor that indicated, note, Superior the We Motoring’s neg- regarding issues of fact exist penal a Motoring not a that is custodial ligence supervising placing and in Jewett open to facility. It is a vocational school the program him in him an adult allowed obligation is to public therefore under freely premises. to roam off the school We supervision of its maintain continuous stu- plaintiffs to note that in order for recover v. Synanon See Founda- dents. Beauchene action, negligence they prove, a must inter tion, Inc., 342, Cal.App.3d Cal.Rptr. 88 151 alia, duty obligation a or an owed Motor- (a (1979) drug 796 rehabilitation cen- Strack, 682, ing. v. 685 Ferreira 636 A.2d ter to which courts referred some offenders (R.I.1994) (“[a] cannot liable defendant general public duty owed no to the negligence theory under a unless the defen- precautions it took respect to the duty plaintiff’). dant a Accord- owes escape persons of to those who were referred ingly, the threshold issue to be determined accepted so that a member of the it and were appeal Motoring duty is whether owed a public escaped who shot who was one in the instant case. the could not recover from the from center negligence theory). See center on also general have that as We stated 595, A.2d Day, v. 148 Vt. 538 157 Smith question duty rule existence of a is a (1987) (although university exercised id; jury. not the court and for the large degree control over student activities of Landing Corp., Banks v. Bowen’s A.2d 522 regulations imposed stringent rules (R.I.1987). previ 1224 This court has university, at governing life it did student ously difficulty constructing recognized the legal duty have a to control the volitional not duty a workable test to determine whether students). acts criminal of its Ferreira, particular exists in a case. See 636 at A.2d 685. We Although have stated that foresee Motoring knew that Jewett was ability plaintiff harm to a factor to be transported premises from in a to and its duty evaluating Motoring considered when whether a that van and state-owned Goulet, Specialty exists. v. premises, Builders Co. 639 left its inform state Jewett Banks, (R.I.1994); A.2d A.2d see us indicates that state the record before However, “foreseeability injury Motoring at 1225. requested provide custodi- never not, itself, give duty.” does in and of rise regard to a al services in Jewett’s attendance Parsons, state, fact, through 638 A.2d Motoring. Marchetti In its at (R.I.1994). are that consid dispelled any We mindful for Mo- representative, reason regarding in a toring’s providing supervision eration the existence continuous particular case reflect “should considerations while he attended classes Motor- Jewett fair policy, highly as well as notions of as a ing. portrayed The state Ferreira, ness.” 636 A.2d at 685. that he individual indicated motivated among kids allowed were] “the best [who light principles opportunity we utilize this terms work-

In the above us, grounds.” The state also informed specific now turn to the issue off before Motoring that had been allowed which whether owed a below, away training plaintiffs. spend we from For the reasons stated weekends only required duty upon school and that one adult was that impose would supervise the weekends. It Unfortunately, the facts of the record do not appears persuaded the state support such a construction. There is not a treat Jewett as it would other student shred evidence that had the attending program. In circum- slightest dangerous notice Jewett was persuaded stances we regarded had been so the authorities at reasonably could have foreseen that Jewett school. evidence subsequently leave its precisely and the record indicate the con- commit a criminal act. We are therefore of trary. represented Motoring He was as a opinion justice correctly the trial good student who was about to be released super- found that owed no custody. The fact of the mode of trans- *4 prevent leaving vise Jewett or to him from portation by training from van the school to premises. Motoring’s premises utterly sig- was without Moreover, assertions, contrary plaintiffs’ Any training nificance. school resident the mere fact that an Jewett was inmate at transported. would be so The dissent at- training the place school was not sufficient to tempts Motoring jailer. to characterize as a Motoring dealing notice was with a It not. It was a vocational school and potentially dangerous individual or that Mo- nothing else. The citation of Welsh Manu- toring duty investigate was under a fur- Textron, facturing, Division Inc. v. Pink- juvenile ther into Jewett’s record. We note erton’s, (R.I.1984), Inc. 474 A.2d 436 is with- Motoring fully that was never informed of out relevance. In that case Pinkerton inwas background. Jewett’s criminal The record security young business and hired man Motoring questioned indicates that when guard gold supply without regarding Jewett and the state the reasons adequately checked him out to ascertain that confinement, for Jewett’s informed he had a criminal record. Pinkerton’s obli- Motoring that he was incarcerated for a gation relationship bore no whatever to that breaking entering charge only. Neither Motoring, jailer which was neither a nor a apprised Motoring he nor the state of the security agency. significant It is to note that rape attempted-strangulation charge. only Jewett was the first and resident of the noted, Superior As the Court could training school who had ever been referred obtained, obtain, not have nor was it able as a student. such information. ju- Because Jewett was a adjudicated venile at the time he was of the totality of the Given circumstances charge attempted strangulation, case, the instant we cannot that conclude precluded obtaining this scope Jewett’s actions were within the pursuant § information to G.L.1956 42-72-8.1 foreseeability. nothing in There is the rec- We therefore cannot conclude that ord to indicate that Jewett would leave Mo- reasonably could have foreseen that Jewett home, toring’s premises, plaintiffs’ at arrive plaintiffs’ sexually would enter home and as- sexually plaintiffs’ assault and murder sault daughter. and murder minor daughter. agree minor We therefore with Superior We are mindful that the facts of Court’s determination de- this case plaintiffs as construed the dissent fendant did not owe a in the could seduce one interpretation into a belief in an of the law instant case.2 42-72-8(a) provides § 1. General Laws 1956 Because in the instant case have "[a]ny department pertaining records of the failed to show that knew or should children and their families in need of service bodily have known that Jewett would cause harm pursuant provisions chapter of this or for controlled, to others if not their reliance on the application whom an for services has been made (Second) misplaced. § Restatement Torts 319 is only pro- shall be confidential and disclosed as provides The Restatement Torts 319 Although vided law.” disclosure of confiden- charge person ”[o]ne who takes of a third permitted tial information is under certain cir- likely whom he knows or should know to be statute, provided cumstances for in the there bodily cause harm to others not controlled is nothing in the record before us to indicate that under to exercise reasonable care con- juvenile may records he disclosed under doing trol the third him from particular exceptions. those Superior logic summary entered leap suggested If the dis- plaintiffs’ appeal is denied sent were to become law of State of The Court. Island, options dismissed, are papers Rhode as work-release of this case off-premis- programs for adult offenders and Superior for further remanded programs es education and rehabilitative for remaining defen- proceedings training residents of the school come dants. responsible abrupt parties to an The end. determining can

for whether a resident FLANDERS, Justice, whom training given educational or vocational off Justice, LEDERBERG, joins, dissenting. solely training school parties charge are in of the who upon This calls us to decide whether case We do not enhance this school. that, corporation prof- business duty by punishing the If innocent. it, operates vocational-training owns and university into a had been sent second- neighborhood facility in a residential located education, ary setting off-premises school clientele included least one whose subject he would then have to a become for hav- inmate who was a sentence arrangement. custody custodial violent offenses owed committed state, remains that of the not of edu- *5 any duty neighbors exercise to its reason- persuaded cational institution ac- (1) ascertaining in the inmate’s able care cept purpose for the limited of resident juvenile-offense investigating in record and training. education and whether to al- background his to determine today, In reaching our decision we are low him onto and to remain on its to enter in mindful that consideration the instant (2) training; in property to obtain vocational only public policy case must reflect but determining appropriate supervi- level of earlier, also notions of fairness. As indicated sion, monitoring, and control should obligation under no treat implemented have been condition differently from other students at- allowing him onto and to voluntarily to enter tending program, was never informed of remain to obtain such train- on its juvenile record regarding Jewett’s earlier (once entry in the ing permit it decided charge rape strangulation, and attempted (3) place); monitoring super- in and first and by precluded obtaining and was from law vising portion the inmate In specific such information. these circum- day supposed training in when was he contrary stances we believe would be premises. I on its Because believe to impose fundamental notions fairness case, in the of this care existed circumstances duty upon Motoring situations which majority’s respectfully I from the dissent Jewett’s actions were volitional criminal acts contrary opinion reaches a conclusion. absolutely had no for which reason- ably notice. foreseeable Facts3 that no Since we find was owed Rock, plaintiffs, The Peter Linda were and in the instant mat- parents of a now-deceased seventeen- ter, plaintiffs’ we need not reach the remain- Rock, Kimberly Ann who year-old girl named ing appeal. are of the issues raised We raped par- brutally murdered her justice opinion the trial did not err in February Providence home on ents’ East granting summary judgment in favor of the 1990, by At the Robert Jewett. time therefore affirm one defendant We added.) granted plaintiffs’ Superior justice (Emphasis defendant’s sum- The such harm.” reliance on case law which motion, comports with the maty-judgment facts are set forth in unpersuasive. principles equally 319 light plaintiffs after all rea- favorable to most Dudley v. Aid and Restoration Rich- fa- Offender have been drawn sonable inferences mond, (1991). Inc., 241 Va. S.E.2d 878 Sons, See, e.g., Inc. v. Fire- vor. E.W. Audet & Co., A.2d men’s Insurance Fund plaintiffs’ appeal 3. Because this matter is here on (R.I.1994). against them from a entered after rather, rape plaintiffs’ daughter, quent; rapist murder of he was and an at- eighteen-year-old Jewett was an inmate of tempted twelve-year-old girl.4 murderer of a School, Training the Rhode Island still serv- Although neither the state nor Jewett’s having raped out his sentence application Motoring prior disclosed his attempted just young girl to murder another offenses, rape attempted-murder ap- years two earlier. plication Motoring did admit that Jewett defendant, Motoring Technical Ser- unspecified had been convicted of an number vices, (Motoring), privately Inc. is a owned (B Es). breaking entering offenses & corporation in providing the business of voca- falsehood, outright If not an this statement technical-job tional instruction and skills to incomplete was at persons apply accepted who least rendition of Jew- for and are into training programs. paid one of its For a fee ett’s actual record of offenses be- funds, al- cause, minimum, at a it omitted his delin- lows trainees to come onto its quency adjudication attempted to attend classes at the commercial Nonetheless, application murder. Jewett’s facility operates that it owns and in a resi- put Motoring served to on notice that it was Providence, dential area of East Rhode Is- who, dealing with someone his own admis- land. On that are located one block sion, history committing had a violent acts home, Motoring teaches train- and who was still for such of- incarcerated ees various technical trades such as automo- very fenses at the time when he would be on small-engine tive and mechanics. Motoring’s property undergoing training.5 Through arrangements made with the Notwithstanding giant flags red raised Island, State of Rhode Robert Jewett was application, Motoring requested fee, Motoring, one such trainee whom for a particulars from the state or from Jewett agreed to instruct at its East Providence *6 nature, number, concerning temporal and However, facility. Motoring as well knew proximity Es, of Jewett’s admitted B & or submitted, application from the that Jewett concerning completeness the truth and this trainee was different from its other history past as on offenses stated Indeed, charges. Motoring voluntarily when application Motoring.6 his Nor did it take upon undertook to allow him to enter any steps to obtain for itself an accurate begin and to training there in picture just what kind of an inmate it was mechanics, automotive Jewett was still bring property about onto its for extended Training Rhode Island School inmate who periods thereby expose danger and inno- by was incarcerated the state and out public cent members of the like and training at sentence school. More- over, just juvenile any daughter. Jewett was not delin- 11-8-3, adjudicated "delinquent" §§ 4. Jewett had been murder or sexual assault. See 11—8— eighteen years age because he was under 4. when it was determined that he had committed attempted-murder and offenses for McCutcheon, 6.According to Robert M. the state which he was incarcerated and because he had responsible placing official Jewett Mo- with. that, by committed offenses if committed an toring, [Motoring] he was authorized to "tell adult, have would constituted felonies. See G.L. necessary whatever information was in order to 14-1-3(5). § However, placement job.” secure the McCut- asked, cheon also claimed that heif had been he murder, “Breaking entering," along Motoring and would have told that he could not manslaughter, rape, mayhem, history past and a host of other discuss Jewett’s offenses but that offenses, serious "classified as crime vio- could ask Jewett about it. Since Mo- * * (Emphasis toring any questions lence in Rhode Island add- failed to ask the state about Germano, ed.) background, State v. A.2d Jewett’s record or we do not know (R.I.1989) 11-47-2). (citing pertinent § G.L.1956 what information to Jewett's true and breaking entering complete and covers a whole continuum record of offenses have state, ranging breaking by especially of violent crimes from and en- it been disclosed to tering dwelling receipt into without the consent of the had communicated that its * * * tenant, 11-8-2, necessary owner or see G.L.1956 such information “was secure breaking entering placement" with the intent to commit of Jewett with allowing at all in havior-monitoring measures it Moreover, Motoring that the state told supposedly remain to come onto in a state Jewett guard drive Jewett would have a training periods, during the on its Motoring’s Providence East van from him if he were no different treating weekday morning classes were every in one of its enrollee any other adult held, upon until Jewett entered wait there Thus, although Jewett training programs. pick then return to Motoring’s property, and juvenile, Mo- eighteen-year-old still an of each was afternoon the end up Jewett unsupervised him in one of its sup- toring placed Motoring was day, during which class communicating to thereby programs, adult teaching Jewett to become posed to be go allowed to come him that he would be importantly, be- mechanic. Most automobile Motoring’s during and between pleased accept as he Motoring agreed to Jewett fore classes, just like all the instruction vocational facility, at its the state told programs. trainees allowed to leave adult should not be that Jewett time Motoring’s premises at Moreover, to advise Motoring even failed lunch, there, even to eat his presence employed train Jewett the instructor left, absent, caused that if was ever Jewett that, appli- admission on his Jewett’s own Motoring was to any disciplinary problems, re- Motoring, had been cation to now, By big flags those red call the state. (let B alone that of & Es peatedly convicted B & Es admission in Jewett’s raised was, Motoring, a fact undisclosed to he albeit application and the state’s concerns about rape and at- person who had committed Motor- making sure that Jewett remained on murder); incar- was still tempted snapping ing’s property should have been he was attend- for his offenses while cerated against Motoring’s flag- metal banging facility; that at ing Motoring’s Still, pole. nothing did on its own contacted request the state was to be state’s nothing to state or to Jewett to and said immediately if ever left or and when Jewett of commit- ascertain Jewett’s actual record Motoring’s premises during was absent ting violent offenses. type day or if he caused the class cheeking disciplinary problem. Instead Instead of into Jewett’s record to employees about Jew- exactly nothing to its own type determine what it was said status, in an placed him unsuspecting incarceration about to introduce to its em- ett’s trainees, January him to be absent ployees, neighbors, program, adult and allowed *7 22, 1990, during the class Motoring voluntarily began premises from its at will to allow notifying the state. property. day without to enter onto its It did so Jewett —all by receiving custody him from of his the everlasting regret, Jewett To guard, him there in a van' state who drove fully exploiting these lax lost no time every morning, began returning it him to and Motoring’s facility. For the at conditions custody at end of each the of the state the his East Providence first two weeks of new day guard-driven class when the state van to rove Motoring allowed Jewett placement, up pick returned to Jewett neighborhood through the residential at will Training trip to the Rhode Island the back facility sup- while he was that borders its School. attending classes posed to be auto-mechanics Motoring’s premises dur- remaining on Unfortunately family, almost and for the Rock Thus, vari- day. taking ing any breaks in the class immediately Motoring began after seeing re- trainee, reported Jewett it to heed the ous witnesses as a failed Jewett during class time the peatedly large at need for Motor- state’s instructions about the immediately neighborhood Providence supervise his East ing to monitor Jewett Neighbors Motoring’s facility. testi- presence on Motor- next whereabouts balefully at them as staring fied to Jewett’s it could advise ing’s so house, to furtively from house to skulked was absent from he state if Jewett ever left or fences, backyard over any disciplinary observing him bound premises causing or was its suspiciously at watching peer him imple- and to problem. failed crouching across family while down members any effective absence-detection ment be- prowled through the street from repeated them as he to take notice of Jewett’s absences neighborhood. facility, notify from its and to state (as request- felonious wanderlust it had been Finally, February on a little over do) ed to all allowed Jewett the more than two weeks after had first received planning up two weeks of led custody Jewett from the state’s and taken dastardly commission of his deeds and em- him in as a trainee on its own him nasty boldened to see his business very at sup- moment when through to its odious end with little fear that posed busy instructing Jewett Motoring would blow the whistle on him. mechanics, points fine of automotive Jewett busy away raping was himself one block say, plaintiffs, Needless to Peter and Lin- killing plaintiffs’ seventeen-year-old daugh- Rock, undoubtedly neg- da horrified over the previous repeated ter. True to its fail- ligence and carelessness that had allowed Jewett, keep any ure to tabs whatsoever on and then to snuff out their only neglected notify had not life, seventeen-year-old daughter’s filed suit truancy day state of Jewett’s on this fateful against Motoring and the state as well as the but failed even to note Jewett’s absence from various individuals associated therewith who premises, never undertaken allegedly responsible daughter’s for their act effectively that could determine whether untimely unnecessary A trial death. present facility he was even at its justice against dismissed claim Motor- given day Thus, any given or at time. as it that, ing after he concluded as matter of had done on innumerable earlier occasions in law, Motoring owed no of care to these finally raped the two weeks before Jewett plaintiffs. majority A of the court now af- plaintiffs’ daughter, Motoring and murdered ruling. firms this apparently go allowed Jewett to come and Analysis pleased during day, he letting the class absent at himself will from its negligence Before claim will lie agreed provide from the instruction it had particular person entity, a court must first (though quite to him it was careful not to decide whether “there exists a of care neglect pocketing paid fee running plaintiff from the defendant * * phantom pass funds for its States, *.” D’Ambra v. United 114 R.I. Jewett). (1975) (“in 643, 649, 338 A.2d instance, question first for the [this is] Motoring thereby gave every op- jury”).7 Although court and not for the portunity neighborhood, to case the to stake “easily expressible” there is no formula for out the homes and families that could be his determining pres whether a of care is potential targets, every and to stalk the case, particular ent in a all relevant factors time-of-day movement and locations of his weighed, must be there is a “[w]here (plaintiffs’ daughter, selected victim Kimber- redress, widespread judicial sys need for Rock), ly Ann all of in turn allowed *8 very carefully it tem should consider before many Jewett to minimize if not eliminate of law, reject, undertakes to as a matter of an difficulties, uncertainties, and risks he 648, 650, 652, entire class of claims.” Id. at normally would have faced if he had not had 526, 529; 527, 338 A.2d at Ferreira v. accord generous opportunities planning time and Strack, (R.I.1994) 682, (agree 636 A.2d 685 committing for his eventual crimes that Mo- approach with DAmbra’s “ad hoc of con toring’s leave-taking liberal attendance and sidering deciding all relevant in factors” practices graciously so him. afforded exits). whether a Accordingly, when Jewett decided to strike Manufacturing, and commit in In his next violent crime Motor- Welsh Division Tex of tron, Pinkerton’s, Inc., 436, ing’s neighborhood, East Providence Motor- Inc. v. 474 A.2d attendance, (R.I.1984), ing’s failure to monitor Jewett’s 440 we found a of care was Holmes, legal duty nothing pre- so called is but a of the court." Oliver Wendell “[A] 457, Law, things diction that if a man or omits certain 458 does The Path (1897). 10 Harv. L.Rev. of way by he will be made to or that suffer this

909 when it by security-guard company premises, him onto its “prem- owed a ushered ised on its failure to exercise reasonable care him to remain on its with- allowed selecting person employer a always who the knew sensible out state escort — incompe- or should have known was unfit or doing tenure an was so thereby employment, exposing tent for inmate out his sentence Rhode to parties third an unreasonable risk juvenile-detention system Island’s added.) so, doing (Emphasis harm.” In we multiple violent offenses. committed (Sec- relied on a section of the Restatement assertions, it Contrary majority’s ond) Torts, provides that an actor the mere fact that Jewett was an inmate not precautions “[w]here must take the actor has put Training School that at the Rhode Island brought into or contact association with dealing it was with a on notice that person or other a whom actor knows dangerous individual or that potentially likely peculiarly should know to be to commit investigate to obliged further into misconduct, intentional under circumstances committing record violent offenses. peculiar opportunity temp- which afford or Rather, it the fact that knew was Id. 441 tation for such misconduct.” that his own admission Jewett had been (Second) 302B, § (quoting Restatement Torts (B repeatedly convicted of violent crimes & (1965)); e, pt. cmt. D at also 91 see Restate- Es) and that state so concerned (Second) (“[o]ne § ment Torts 319 who takes propensities the violent this about charge person of a third whom he or knows (1) attempted rapist and murderer that it likely bodily should know to to harm be cause Motoring’s premises him to took and from if others not controlled is under (2) guarded it van instructed care to third exercise reasonable control the (a) it notify that was to the state if and when doing him from Motoring’s Jewett was ever absent from fa- harm”); University, accord v. Nova Inc. (b) cility and that not Jewett was (Fla.1986) Wagner, (per 491 So.2d 1118 Motoring’s premises allowed to leave even to curiam) (“[A] facility in business of tak- Only by ignoring his lunch. these facts eat ing charge persons likely harm others by claiming they “utterly without or ordinary duty has an to exercise reasonable majority significance” can the state that operation care in its to avoid foreseeable “[tjhere is shred evidence Mo- charges upon persons. its If attacks third toring slightest had notice that Jewett exercised, reasonable care no there can be dangerous regarded or had been so alternative, liability. The the exercise of at the the authorities school.” care, subjects care or lack unreasonable facility liability.”); Dudley In addition knew should have Offender Richmond, Inc., Aid and Restoration by allowing person with known that Jew- 279-80, (1991) Va. S.E.2d background and ett’s violent incarcerated § (applying privately operated “half- upon with no status enter its way house” for convicted felons allowed monitoring supervision, placing it was leave, rape, kill a neighbor inmate position foreseeably in which could in a he facility).8 individuals, including its harm other trainees, Here, employees, neighbors, and its charge” its Motoring “took of Jewett fee, propensity committing voluntarily agreed, violent of- when it for a train continue. Restatement facility, voluntarily him on re- fenses were to (discussing § 281 risks guard ceived him from the drove van Torts who custody 302B transported persons”); him from and foreseeable “class id. state *9 doing addressing duty prevent 8. case him or her from For additional the context, harm”); 223, (adding parolee question Taggart “a in a see id. at 822 P.2d 257 State, 195, 243, 220, may charge’ parolee, parole 118 Wash.2d P.2d 255 officer 'take of a 822 (1992) ("[w]hen parolee's history thereby assuming protect reasonably the a criminal parolee dangers, despite progress parole the absence of a show that the foreseeable relationship likely trolled, exercising bodily if con- and without to cause harm to others not custodial * * * daily parole 'continuing hourly dominance and officer is under or parolee”). parolee exercise reasonable care control dominion' over 910 e, pt. (requiring precautions

cmt. D when the “fact that the violence took the form of brought raping plaintiff], parolee’s] “actor has into contact or [the [the associa- history criminal person rape, tion with the other” a did not include does known to be “peculiarly likely injury not show that to [the victim] to commit intentional was not mis- conduct,” against plain- foreseeable. Violence pe- [the circumstances that “afford a may foreseeable, tiff] have been opportunity culiar even temptation or for such misconduct”).9 though may the form of that violence not added.) (Emphasis have been.” Id. at said, “Foreseeability,” we have “relates to 225, 822 P.2d at 258. probable the natural consequences anof Thus, majority’s conclusion that Motor- Club, Narragansett act.” Hueston v. Tennis ing reasonably could not have foreseen that Inc., 827, (R.I.1986). 502 A.2d And the plaintiffs’ Jewett would enter home and “sex- actor, fact that an ually assault and murder minor conduct, “at negligent the time of his nei- daughter” herring; particu- is a red no such ther realized nor should have realized that lar harm need be foreseen for a of care might harm cause to another of the Here, to exist.10 Jewett’s admission to re- particular particular kind or in the manner peated B enough Es should & have been occurred, in which the harm in fact has person alert that if it took such a not of itself sufficient facility into its and allowed him to remain being liable for the other’s harm if his unsupervised there and unmonitored for ex- conduct negligent toward the other periods, tended it should at least assume bringing was a substantial factor in likely he would be to break into and enter (Second) about the harm.” Restatement Thus, homes the area. the likelihood of 435, a; § Torts cmt. Taggart, accord type some against Motoring’s of violence 225, Wash.2d at 822 P.2d at 258. neighbors clearly if Motoring foreseeable allowed Jewett to have extended and un- Taggart provides decision a useful illus- checked access them. There, person previously tration. convict- raped Moreover, ed of assault disagree majority’s woman while out on I with the parole. 118 Wash.2d at 822 P.2d at 245- conclusion that exercising reasonable dili- issue, foreseeability gence, 46. On the the Wash- could have obtained all ington Supreme Court held that the the information it needed to review coneem- danger present such inmates would "the actor’s own affirmative act has created or they go were allowed to come and exposed recognizable high degree the other to a * * they pleased during period they are serv- through of risk of harm such misconduct *.” ing part why out their sentences is of the reason added.) Thus, (Emphasis Id. actors like Motor- such individuals are incarcerated and restrained they must take reasonable care when have by the state for their or crimes offenses in the "brought into contact or association with the Ouimette, place, first 367-68, see State v. R.I. person other a actorfs] know[ ] whom (1976) (noting, among 367 A.2d peculiarly likely should know to be to commit reasons, persons are incarcerated to misconduct, intentional under circumstances "protect society" from their "antisocial behav- peculiar opportunity tempta- ior”), afford why (among precautions) its other ” * * * tion for such misconduct guard-driven state uses vans when such inmates they or when have transported place need to be from one to anoth- being “utterly charge signifi- er. Far from cance,” “taken or assumed control of a without importance peculiarly whom [the actors] know[ ] this fact and the other "protect society” likely upon indicia of the state’s efforts to to inflict intentional harm others.” Id., e, added.) (Emphases pts. from Jewett while he was still incarcerated for cmt. D & F. apparent Restatement, his offenses should have been ing. According Motor- clear cut exam- ple is a situation where "A, operates who sanitarium for insane, B, custody are, course, receives for treatment and many 10. There situations in which Through homicidal maniac. the carelessness of required anticipate guard an actor "is A, intentional, criminal, guards employed escapes, one of the B or even miscon- added.) seriously injures may (Emphasis attacks and A duct of others.” C. be found Restate- 302B, Id., e, F, Generally, negligent pt. ment Torts cmt. e. toward C.” cmt. when, may example, these situations *10 arise for illus. 12.

9H in the complete history juvenile agrees of- to train —to hide its head ing Jewett’s fenses, delinquency including previous thereby responsibili his ad- duck its own sand and judication attempted for murder. true concerning the need to ascertain the ties 42-72-8(b), § records Under G.L.1956 juvenile complete and criminal records of necessary” to those can be disclosed “when individuals, it especially comes “individuals, public private agencies or or precautions against investigating taking * * * engaged education of the persons. the known violent tendencies of such supervision” Department under the 236, 239, Shepard, 233 N.Y. Glanzer Children, Families, Youth and as as to well (“[i]t (1922) ancient 135 N.E. public private agencies or for “individuals act, learning that one who assumes to even permanent purposes temporary may thereby though gratuitously, become placement person, of the and when the di- subject acting carefully, if he rector determines that the disclosure is need- J.). all”) (Cardozo, it do acts at And should Here, accomplish placement.” ed to voluntarily agrees it to invite these so before in auto- state wanted Jewett to be educated inmates to come onto its and there Motoring’s training mobile mechanics at by knowingly places position them a school, and Jewett wanted to obtain such harm others in the foreseeable zone of dan training. prepared provide The state was trainees, ger, including employ its its Motoring with “whatever information was ees, neighbors family. and its like the Rock necessary” placement. to secure the Thus § cmt. See Restatement Torts Motoring could have and should have insist- (for negligent respect c an actor “to be ed, any agreement as a condition of on its other, recog his conduct must create a part upon proper- allow Jewett enter individually, nizable risk of harm to the other ty training, and receive first persons as, example, all or to a class of for— obtain full disclosure from the state under persons given danger within a area of —of (or otherwise) any pertinent this law rec- member”); which the other is a see also concerning past ords behavior of this Dudley, 241 at 883 Va. S.E.2d trainee, proposed including complete rec- (one charge” dangerous per of a who “takes juvenile offenses, ord of it ac- before would § Restatement owes a son under cept him at step the school or allow him to prospective class of vic “entire property.11 one foot onto its This statute tims”). expressly provides justifi- the means and the cation which such disclosure could have ability But had no even been obtained had exercised even a compel or to dicker for the disclosure ordinary diligence. modicum of care and precedent a condition these records as Thus, my opinion, majority miscon- admitting to its and its strues 42-72-8 when it concludes that Jew- training programs, I would still find that previous ett’s true record of offenses could Motoring enough knowledge than had more not have been disclosed to under type information to know what of risk statutory provision. this voluntarily agreed to ac- facing when it cept and allowed this inmate as trainee sure, agents To be the state and its him, fee, property. onto its enter appear guilty deplorable of the most Regardless was Motor- of whether Jewett misrepresenting kind of malfeasance ing’s inmate trainee or its mil- first and last failing precise to disclose the nature Jew- lionth, Motoring possessor was the I ett’s record to But do using land and chattels Jewett would be permit private think not we should business during training period, and thus it could corporation especially one like — imposed reasonable have and should have making profit that is funds for property. use of its every potentially one of these violent inmates conditions on Jewett’s presence why Motoring, and to to monitor Jewett’s I know of no reason measures admitting prem- a condition of Jewett to its his unauthorized absence from its program, could have obtained both his con- training periods. ises taking sent and that of the state to its reasonable *11 912 Nonetheless, exactly this is what priori obligation to allow school?

Since it had no a facilities, certainly it had access to its go Jewett Motoring it let come and did when Jewett ability duty to so.12 only but the do day. fact pleased during the class as he allowing example, For as a condition of Jew- public “did open is to the training programs, in participate ett to its take in inmates” is not make it a business to (1) required Motoring could have Jewett why it should be under a all the more reason periodically supposed when he was check dangerous inmate like Jew- duty to control a (2) property, assigned a present on its com- ett that it introduces into a residential guard employee or an to watch or monitor mingle munity and allows to mix and with (3) cameras, him, installed surveillance trainees, employees, neighbors. public (4) required a to wear band and/or an inmate out his time for As signals so that his that would emit electronic offenses, Jewett, Motor- committed violent as monitored and on-premises location could be knew, society student ing well honor verified. looking by adding a to burnish his resume Moreover, notwithstanding the state’s re- previ- degree in automobile mechanics quest notify it whenever Jewett left Mo- accomplishment. It ironic to ous record of disciplinary toring’s premises or caused applying if for problem, Motoring negligently failed to heed note that Jewett had been very it was to conditions under which Motoring as a teacher or a counselor work at run train Jewett and instead let have the (notwithstanding background a child as neighborhood of for the two weeks lead- legally not have been rapist), thereby ing up rampage, to his murderous rely application privileged simply on an luxury stalking affording him the and stak- unspecified of re- that admitted an number victim, young girl ing out his eventual like peated potentially B failed to dis- & Es but previously raped and almost the one he had history part of his close the worst circumstances, hardly killed. In these employer offenses. As Welsh reasonable “punishing impose the innocent” to required to check further would have been knowing care on background person, into the such Es, B was at least inclined to & let alone Welsh, failed to do here. See murder, attempted how could Mo- (“we background at 441 think that A.2d impunity toring ignore free to be seek checks in these circumstances should obligation to state’s instructions and its own might not other- relevant information monitor Jewett’s whereabouts uncovered”).13 be was on its at the vocational wise time he ("[i]f Kay, 450 A.2d 508 Cosala v. 91 N.J. 12. Restatement Torts Di (1982)). permits person a third to use land or the actor possession than as a chattels in his otherwise analysis Although guided cases our several servant, is, present, under a to exercise he if may concerning employers be whether Welsh the conduct of the reasonable care so to control legally wrongful for the acts held accountable intentionally person him from third as to particu- negligently employees, hired one is harming conducting so himself as others or from (discussing larly instructive. See id. at 438-39 bodily create an unreasonable harm to them, risk Investments, 331 N.W.2d 907 Ponticas v. K.M.S. (a) has if the actor knows or reason (Minn.1983)). raped by the Ponticas a tenant In ability he to control the third know that has the complex manager apartment sued the of her (b) person, and knows or should know of the negli- theory that the owner was owner on the exercising necessity opportunity parole gent hiring manager, control”). receiving burglary following a conviction Jewett, goods. manager tried stolen Like writing past by may directly play on his Employers down his criminal like lia only application convicted parties injured that he had been “third who are acts of ble to unfit, employees.” court held that incompetent, traffic violations. The Ponticas or unsuitable Textron, employers exercise reasonable Manufacturing, have a Division Inc. Welsh Inc., (R.I.1984). pose selecting persons a threat care in that could 474 A.2d Pinkerton’s Welsh, (discussing general public. "negligent See id. at 438 we noted that the tort of In Ponticas). by exposing hiring addresses the risk created " Thus, paid Jewett as potentially dangerous had hired members of added.) getting (quoting trainer —instead person. (Emphasis at 440 an auto-mechanic Id. *12 assertion, unspecified an number had convicted of Contrary majority’s there been to the crimes, attempt given no here to “characterize his known status has been of violent However, jailer.” any Motoring custody like still as in state as an inmate still land, Motoring “re- possessor of other for one or more of those serving his sentence care, quired to exercise reasonable with re- offenses, “leap logic” of to requires on, gard to activities which carries [it] rely- Motoring that had no business conclude protection of outside of [its] for the those about Jew- ing on the state’s blandishments al., Prosser premises.” Page Keeton et W. individual and being “highly motivated” ett and Keeton on The Law Torts § 57 at 387 of were] kids allegedly among [who “the best (5th 1984) (citing Restatement ed. opportunity in terms of to utilize this allowed 371). Motoring’s possession Torts grounds.”14 working off gave power it “a control of the policy may argued public that disfa- It be persons conduct” of third control over the any duty that will imposition vors the Jewett, enter, Motoring to like whom allows discourage private enterprises like “required to for the that is exercise impart job to helping to needed skills protection of those outside.” Id. at 392. that individu- populace our criminal so these In these circumstances the failure of the opportunity re- may als have the to become request Motoring provide that “cus- state they sponsible after have served out citizens todial services” for the likes Jewett —that progres- I all their sentences. am for such is, inmates delivers to entities measures, salutary but whatever bene- sive guarded they vans while are still gained by providing violent fits are to be out their sentences for committed vio- juvenile with offenders and convicted felons determining lent offenses —is as irrelevant job training must be balanced the existence of a here as is the failure allowing opportunity social cost of them request of the state to maid services for mayhem during engage them. in murder and Given Jewett’s known status as a who, admission, by attempted period offender his own rehabilitation. paid keys they go a valet when train him as an auto mechanic—it would their car function, subject liability they negligently under Welshif it restaurant or attend some other temporarily relinquishing custody neighbors allowed “fix” of their him to while he was are anomalous, supposed fixing cars. It is vehicles to the control of another who takes least, say Motoring's duty responsibility they owed them the short time of care service, parties custody to third like of the valet should vanish remain there in merely getting public money garage, parking they paid is Or when leave their because it or lot. babysitter, babysitter paying takes train Jewett instead of him to train oth- children with a custody ers. of the children for the limited time Groff, they away. Pettery are 491 N.E.2d (a Moreover, (Ind.Ct.App.1986) babysitter relation- as a matter of did fact. giving "custody” ship to a assume a form of limited over Jewett is a custodial one rise care). agreed they requested any have when it to train him on its under The fact arrangement provide custody whereby requested is immate- it was of these custodians to rial, hardly notify they if he as is the fact that intend state ever left the or was relinquish complete or even to defined the nature of control to them absent. As status Similarly, relationships, give custody overnight. the im- varying custody them can exist on differ- portant failed to Law fact here is not that the state ent levels of continuum. See Black’s (6th ed.1990) (the custody Dictionary very request of Jewett but to take "term training, Motoring guarding, accepting may "keeping, Jewett for elastic” and care, watch, include the that, security inspection, preservation or should have known because knew Indeed, custody thing”). status and admitted record of a what constitutes Jewett's incarcerated offenses, intending, degree concept, dependent violent the state was not a relative more on the Motoring permitted, Jewett into relinquishment nor was to turn of control an actor over agent Motoring's premis- person thing assumption responsi- entered and the a free after he es, allowing go pleased. bility respect to come and as he with thereto another actor than expressly Mo- example, patrons even if the state had told factors. For Jewett, toring treat jackets that this is how it should leave their with a who staffs coatroom, thereby they giving from all should not be absolved restaurant’s the restau- ignored custody jackets they liability Jewett's admitted violent of their even if have no if it rant simply leaving propensities took him in with no intention of them there for more than an monitoring Similarly, patrons on movements. turn over of or restrictions hour. if these same this Any initiatives for adult con- motion and remand case work-release Superior for trial. off-premises educational and reha- victs training-school in- programs bilitative (such Motoring’s

mates ill-fated venture Jewett) incorporate that do not basic

security protect safeguards to

from violent offenders deserve to come to the majority

“abrupt end” that laments participating if occur institutions fail to observe the same of care to the al., John et MUMFORD in the state has these circum- discloses, stances. for all the record only Motoring’s reason first “[t]his Matthew LEWISS. penal system and last contact with the 95-262-Appeal. No. State of Rhode Island” was that it ended However, Supreme disaster. after been ab- of Rhode Island. any duty public in solved of of care to the Aug. business, entering risky type into this private corporations and other such given green light get have now been again inmate-training

back into the market security lapses no

with fear their

dealing inmates will result in

third-party liability. majority, I Unlike the asking impose

do not think it is too much to

duty of reasonable care on those businesses that, profit, expose

like for a

neighbors ravages of brutish criminals they

or violent' while are offenders

supposedly being trained to become more

productive society. members of

Finally, it be noted that we have no should

evidence the record of custom or

usage concerning precautions, of trade what any, are taken vocational- they dealing

training businesses when facilities who

with inmates of correctional But

have known records of violent offenses.

this, too, particular is of moment in decid say

ing this case. “Courts must the end precautions required;

what is there are so

imperative that even their universal disre

gard their omission.” The will not excuse (2d Cir.) (L. Hooper,

T.J. 60 F.2d J.) denied,

Hand, 53 S.Ct. cert. U.S. (1932).

220, 77 L.Ed. 571

Conclusion reasons, I would vacate the deci-

For summary Motoring’s granting

sion below