(This story is by Bob Audette, of the Brattleboro Reformer.)
[S]T. JOHNSBURY — The family of a man who was seriously injured by a mentally ill man has settled its lawsuit against the family of Evan Rapoza, who committed the assault.
“There has been a settlement that was reached in out-of-court mediation,” said Richard Cassidy, an attorney who represents the family of Michael Kuligoski. “The settlement amount is confidential by agreement.”
Rapoza received mental health treatment in 2010 at Central Vermont Medical Center, the Vermont State Hospital in Waterbury and the Brattleboro Retreat. He was diagnosed with a psychotic disorder and showed symptoms associated with schizophrenia.
After receiving treatment at the Retreat in 2010, he was discharged into the care of his parents, and his treatment plan included medication and visits to Northeast Kingdom Human Services. But at the end of 2010, Rapoza stopped taking his medication.
On Feb. 26, 2011, at an apartment building in St. Johnsbury belonging to his grandparents, Rapoza assaulted Kuligoski, who had been working on a furnace there. The attack — which involved a pipe wrench and a belt around the victim’s neck — left Kuligoski with brain damage and partial paralysis.
Rapoza was declared to have been legally insane at the time of the attack and was not tried. A psychiatrist said Rapoza was in a “psychotic storm” when the assault happened.
While the civil suit against Rapoza’s parents has been settled, the legal case is far from over, said Cassidy.
“In Windham County, we brought suit against the Brattleboro Retreat and Northeast Kingdom Human Services,” he said. “That case was dismissed, but we appealed to the Vermont Supreme Court and we were largely successful. It has been returned to Superior Court in Windham County.”
No proceedings in Windham Superior Court have yet been scheduled.
The Windham Superior Court judge who dismissed the case against the Retreat said the mental health service providers could not have foreseen that Kuligoski would become a victim of Rapoza’s disorder. But in a controversial ruling issued in May 2016, a three-member majority of the Vermont Supreme Court concluded that mental health workers at both the Retreat and Northeast Kingdom Human Services had failed to properly warn and train Rapoza’s parents in regard to his continued treatment.
“We conclude that by transferring custody of a patient with a psychotic disorder to caretakers whom they knew lacked psychiatric training and experience, the Retreat owed a duty of care to provide reasonable information to the parents to enable them to recognize the dangers and fulfill the responsibilities envisioned for them in the treatment plan,” wrote the majority.
This “duty to warn” legal standard was new and caused concern for mental health workers who are treating potentially dangerous patients. Before the Kuligoski case, providers had to warn people when there was an imminent threat to an identifiable victim. The court ruling expanded the obligation to also apply to “foreseeable victims or to those whose membership in a particular class … places them within a zone of danger.”
Chief Justice Paul Reiber and Justice Marilyn Skoglund sharply dissented from the majority’s opinion, arguing that the court had created a new legal obligation for mental health workers without understanding its ramifications. Skoglund went so far as to call the majority’s ruling “the essence of judicial arrogance.”
During the 2017 legislative session, the Vermont Legislature passed a bill addressing the majority’s ruling, essentially overruling the decision and limiting the duty to warn to apply only if the patient makes a threat against a specific identifiable person.
However, the Legislature’s action, said Cassidy, probably won’t have any effect on his client’s case.
“Legislative actions don’t apply retroactively,” he said. “If there had been an effort to make it apply retroactively, it would have raised serious legal questions.”
Retreat attorney Ritchie Berger, while saying he has “great empathy” for Kuligoski and his family, told VTDigger that “the lawsuit will continue to be vigorously defended based on the facts and on the medicine involved.”
The Kuligoski family also filed a suit in Caledonia County against Rapoza’s grandparents, who own the apartment building where Rapoza attacked Kuligoski. The county judge dismissed the case, but the dismissal has been appealed to the Vermont Supreme Court, which has not yet ruled on the appeal.
Cassidy wrote that the grandparents were liable because of their “failure to provide a safe premise … (and the) … direct negligence of the Grandparents for the failure to supervise and control John A. Rapoza (Evan’s father), and imputed negligence of John A. Rapoza for his failure to supervise and control Evan Rapoza.”
The grandparents are being represented by Cleary Shahi and Aicher, in Rutland. The firm contends that the grandparents, who are absentee landlords, depend on their son to maintain the property where Kuligoski was attacked. The grandparents paid their son for his work and he, in turn, paid his children for any work they performed, such as simple maintenance that included painting walls.
“(Evan Rapoza’s grandparents) were not present at that time and did not know that their son planned to go to the building that day, nor did they know about their grandson’s mental health issues,” wrote lawyer Kaveh Shahi.
“In discovery, it turned out that Evan’s grandparents did not know that their grandson was ill,” Shahi told the Brattleboro Reformer. “Evan’s parents had not shared with his grandparents the issues they were having with their son.”
Shahi said the claim against Evan Rapoza’s grandparents hinges on the gray area between formal employment and family members being paid to help around the house.
“This is how families work. You might give the kids some pocket change for working around the house, but it’s not formal employment,” Shahi said. “Are we going to hold the grandparents responsible because their son was doing stuff for them at the house and the son brought his son?”
Shahi said the Supreme Court has many factors to consider while reviewing the appeal of the dismissal, including whether society wants to place this kind of liability on extended families.
“Obviously, this is a very tragic situation for the Kuligoski family,” he said. “Anyone should feel empathy with the Kuligoskis and any other victim of a mentally ill person acting out. But we also need to have some understanding of how mentally ill people can be helped and how families that try to help them can be encouraged to do so in a way that helps society at large.”
The only alternative, said Shahi, is for families to transfer their responsibility to the government, which currently doesn’t have the resources to manage the challenges of treating those with mental illness.
“This is a larger societal problem, but I question whether the civil liability system for damages is the best policy for determining how we protect the public and how families take care of their own,” said Shahi. “What does it mean when we say if you are helping out an adult child, we are going to hold you legally responsible for his actions? Is that a good or bad thing? If we are going to hold the family members liable, we are essentially promoting isolation of the mentally ill, because the choice becomes one of potentially losing your home or caring for your adult child because there is an offhand chance your child might commit violence.”
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