Attorney General: Honorable Eugene A. Migliaro, Jr., Department of Veterans' Affairs, 2001-014 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

June 13, 2001

Honorable Eugene A. Migliaro, Jr.
Department of Veterans' Affairs
287 West Street
Rocky Hill, CT 06067

Dear Commissioner Migliaro:

You have forwarded questions from members of your staff related to operation "Stand Down." Specifically, you inquire whether the agency is authorized to fund Stand Down when it is possible that individuals may attend who are not "veterans," as defined in state statute. You also inquire about the potential liability of your Department in the event of misconduct by a Stand Down program participant in the form of an assault on another Stand Down participant.

I. The Department Of Veterans' Affairs Is Authorized To Expend State Funds On Stand Down Notwithstanding That Some Individuals Who Attend May Not Actually Qualify For Services As "Veterans"

As you know, the authority of any agency to act is defined by state statute. The authority of the Department of Veterans' Affairs is defined in Parts1 and 1A of Chapter 506 of the General Statutes, Conn. Gen. Stat. 27-102l et seq. and 27-103 et seq., respectively, as including the administration of an advocacy program for veterans, 27-102l(b), the operation of the Veterans' Home and Hospital, 27-106 - 270-108, the operation of a veterans' cemetery, 27-122a, and the provisions of veterans' headstones, 27-119.1

Generally, services offered by the Department of Veterans' Affairs are to be provided to "veterans." The term "veterans" is generally defined in Conn. Gen. Stat. 27-103 as including "any person honorably discharged from, or released under honorable conditions, from active service in the armed forces." However, some of the programs and services provided by the Department, notably including the Home and Hospital, contain the additional eligibility requirement that the veteran must also have served "in time of war" as defined in Conn. Gen. Stat. 27-103(a) (requiring service of at least 90 days during specified periods of time).

The eligibility requirements for participation in the Department's advocacy program are most pertinent to this advice because Stand Down is run by the Department's Advocacy Unit. Advocacy services may be provided to any "veteran" as defined in 27-103(a), whether or not that veteran served "in time of war" as defined in that section.2

Your request for advice does not describe what Stand Down consists of. It is, therefore, necessary for us to describe our understanding of Stand Down because the answers to the questions that you have posed depend, in part, on the nature of the activities that constitute Stand Down.

Our understanding of Stand Down is based upon previous contacts with your agency as well as recent conversations with your staff, conducted in connection with the preparation of this opinion. It is our understanding, based on these contacts, that Stand Down has changed over the years. It was originally started about ten years ago as an overnight event held on the grounds of the Veterans' Home and Hospital whereby hundreds of veterans from across the state would camp in tents and be fed in mess halls set up by the Department, receive information about the services offered by the Department of Veterans' Affairs (including advocacy services and residential services at its Home and Hospital), as well as be provided the opportunity to take advantage of other services that were donated by the community under the auspices of the Department of Veterans' Affairs (including clothing, haircuts, legal assistance, medical checkups, resolution of motor vehicle license and registration issues, and the resolution of minor criminal infractions). Many of the Stand Down attendees resided in homeless shelters across the state, and a significant number are reported to have exhibited psychiatric, alcohol and drug abuse issues. The outreach efforts of the Department of Veterans' Affairs clearly indicated that Stand Down was open to veterans only, and the attendees were required to register upon their arrival, indicating their veteran status. Due to time, volume, and documentation constraints, the self-declaration of the attendee as to his or her veteran status was essentially accepted as true for purposes of being allowed to participate in Stand Down; however, further screening was conducted to determine eligibility for DVA services before an attendee would subsequently be offered advocacy services, residential services, or any of the other services offered by the Department of Veterans' Affairs.

After several years, Stand Down was modified to become a one day only yearly event held on the grounds of the Home and Hospital, with all other components of Stand Down as described above remaining essentially unchanged (except for the overnight stay).

In recent years, the yearly event on the grounds of the Home and Hospital has been replaced by a series of monthly, one day, Veterans' Benefit Fairs, operated in conjunction with the Department of Labor ("DOL") and the United States Veterans' Administration at a variety of sites throughout the state on a rotating basis. These monthly benefit fairs have been held either in Labor Department Regional Workforce Development office space or in space donated by other organizations, including local community colleges. The roles and responsibilities of the respective state and federal agencies in running the Veterans' Benefit Fairs have not been precisely defined in any contract or interagency agreement.

Deputy Commissioner Collins verbally reported his opinion that the monthly, rotating Veterans' Benefit Fairs work well in terms of accessing veterans from across the state, being able to identify problems and services that may be of assistance to individual veterans, and minimizing supervision issues; however, he reports that consideration is being given to returning to the yearly format of Stand Down on the grounds of the Home and Hospital. This request for an opinion is prompted as a result of that possibility.

It is my opinion that the Department of Veterans' Affairs is authorized to expend State dollars on Stand Down notwithstanding that some attendees may not qualify to receive services from the DVA as "veterans," as defined by state statute, 27-103, i.e., honorably discharged from, or released under honorable conditions from active service in the armed forces. There are several reasons for this opinion. First, as noted supra, the Department takes reasonable steps that are designed to ensure that only veterans participate in Stand Down, including clearly stating in its outreach materials that the purpose of Stand Down is to serve veterans, and requiring those attending to register as veterans upon arrival before they are allowed to participate in Stand Down activities. The fact that individual attendees may intentionally or unintentionally misstate their status as veterans does not make the expenditure of funds on the program as a whole unauthorized.3

Second, Stand Down, as we understand it, is really a form of outreach whereby veterans are advised of the services that are available from DVA and from other organizations and are given the opportunity to apply for such services, including advocacy services and residential services provided by the Department of Veterans' Affairs. Before advocacy, residential or other services are provided by DVA, however, the agency conducts a detailed screening and record verification in order to ensure that the individual meets the applicable definition of a veteran who is eligible for assistance under that program, i.e., either honorably discharged or released from the armed forces and/or a veteran (as defined above) who served in time of war. In order to determine eligibility for assistance, the Department obviously must allow individuals to apply for assistance. The Department does not misuse State resources merely because it considers an application that is submitted by an individual who is subsequently determined to be ineligible for assistance. That is equally true even though the application for services is submitted during attendance at Stand Down.

DVA is authorized to provide outreach information to members of the public, informing the public about services that are available to veterans from the agency. The authority of the agency to provide outreach information to the public concerning the availability of DVA services is supported by the sections of the statutes that describe the responsibilities of the Veterans' Advocacy and Assistance Unit as including:

Conn. Gen. Stat. 27-102 l (c) ...

(3) To cooperate with service agencies and organizations throughout the state in disseminating and furnishing counsel and assistance of benefit to residents of this state who are or have been members of the armed forces, their spouses or eligible dependents, which will indicate the availability of: (A) Educational training and retraining facilities; (B) health, medical, rehabilitation and housing services and facilities; (C) employment and reemployment services; (D) provisions of federal, state and local laws affording financial rights, privileges and benefits; and (E) other matters of similar nature;

(4) To assist veterans, their spouses and eligible dependents and family members in the preparation, presentation, proof and establishment of such claims, privileges, rights and other benefits accruing to them under federal, state and local laws;

(5) To cooperate with all national, state and local governmental and private agencies securing or offering services or any benefits to veterans, their spouses or dependents; ...

Accordingly, the agency is authorized to expend state dollars on Stand Down as part of its outreach activities informing the public, and, in particular, veterans, about services that are available from the agency.

II. The Agency's Potential Liability In The Event Of An Assault By A Program Participant Depends Upon How Stand Down Is Administered And The Agency's Knowledge Of Foreseeable Harm

You next inquire whether the State would be liable in the event of an assault by a veteran attending Stand Down on another veteran.

At the outset, it should be emphasized that no opinion can be offered that will preclude claims for damages from being filed by injured persons, whether or not the claims have merit. Therefore, to the extent that conducting Stand Down increases the likelihood of claims being filed, the anticipated effort and expense of defending such claims may be a realistic factor for the agency to consider in deciding whether to hold Stand Down, and in determining how it should be conducted, whether or not the agency is likely to be found liable on any such claim.

Whether any such claim has merit depends upon principles of negligence, notably whether, by holding Stand Down, the agency assumes a duty of care requiring it to take reasonable steps under the circumstances to protect other participants from harm as a result of an assault by a program attendee, and whether it breaches any such duty of care by failing to exercise reasonable care under the circumstances.

It is impossible to give definitive answers to these questions because the issue of whether a duty exists to protect third parties from harm is always a backwards looking exercise that is dependent upon the particular facts that are applicable to each individual case. &quo;Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The nature of the duty, and the specific persons to whom it is owed, are determined by the circumstances surrounding the conduct of the individual." RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 385 (1994). I can provide only general principles of law that may be applicable in given circumstances.

As a general matter, individuals and entities are under no affirmative obligation to protect third parties from injury, and any such duty would generally arise only out of a "special relationship" both to the tort feasor, and to the third party, that warrants the imposition of a duty to control the activities of the tort feasor in order to protect the third party from foreseeable harm. Restatement (Second) of Torts 314, 314A. This principle is recognized in the leading Connecticut case of Fraser v. United States, 236 Conn. 625 (1996), which involved a negligence claim against the West Haven Veterans' Administration Medical Center based upon its failure to prevent a psychiatric outpatient from committing an act of violence against a member of the public.4 In rejecting the claim, the Court ruled:

Existing Connecticut precedents impose only a limited duty to take action to prevent injury to a third person. Our point of departure has been that "absent a special relationship of custody or control, there is no duty to protect a third person from the conduct of another. See 2 Restatement (Second), Torts 315 (1965); F. Harper, F. James & O. Gray, The Law of Torts (2d Ed. 1986) 18.7; W. Prosser & W. Keeton, Torts (5th Ed. 1984) 56." Kaminski v. Fairfield, 216 Conn. 29, 33-34, 578 A.2d 1048 (1990); see also Dennison v. Klotz, 12 Conn. App. 570, 578-79, 532 A.2d 1311 (1987), cert. denied, 206 Conn. 803, 535 A.2d 1317 (1988).

236 Conn. at 632.

Some courts applying these principles have found a "special relationship" between psychiatric treatment facilities and correctional facilities and their inpatients/inmates to protect them from foreseeable harm from other patients/inmates. See, for example, C.J.W. By and Through L.W. v. State, 253 Kan. 1, 853 P.2d 4 (1993) (State liable for failure to take reasonable steps to protect twelve year old juvenile detainee from sexual assault by another detainee whose dangerous conduct was known to supervising officials). Other residential entities, which do not assume a custodial relationship and lack the legal authority to control their residents, have been held to be under no duty to protect third parties from harm. See, for example, Bailor v. Salvation Army, 51 F.3d 678, 682 (7th Cir. 1995) (Salvation Army, as operator of correctional halfway house, not liable for rape by escaped resident when the legal ability to lock up, detain, and restrain the escapee remained with the Bureau of Prisons). Attendance at Stand Down, even an overnight, weekend Stand Down, does not establish a custodial relationship since the veterans are not admitted into the Home and Hospital, are free to leave at any time, and the Home and Hospital does not thereby assume any legal ability to restrict the liberty and mobility of the veteran. Accordingly, a special relationship based on custody should not be found, with no resulting duty of care to control Stand Down attendees as a result.5

A duty of care can also be found based upon other types of relationships--one of which is noteworthy for purposes of this opinion. Specifically, a "possessor" of land, who opens it up to members of the public, may be found under certain limited circumstances to owe its invitees a duty to control the conduct of third parties who enter on its land. The Restatement (Second) of Torts 314A(3) provides that a possessor of land is under a duty to its invitees to protect them against unreasonable risk. It provides as follows:

If the actor permits a third person to use land or chattels in his possession otherwise than as a servant he is, if present, under a duty to exercise reasonable care so to control the conduct of the third person as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the actor (a) knows or has reason to know that he has the ability to control the third person, and (b) knows or should know of the necessity and opportunity for exercising such control.

This Restatement Rule has been accepted in Connecticut. Specifically, in Stewart v. Federated Department Stores, 234 Conn. 597, 662 A.2d 753 (1995), the owner of a parking garage was found to be under a duty of care to protect a parking garage patron from an assault where other patrons had been similarly assaulted in the past. In accord, see Irons v. Cole, 46 Conn. Supp. 1, 734 A.2d 1052 (No. CV940119038S, J.D. Waterbury, 1998).

Foreseeability of harm to a particular person or class of persons is always a factor in determining the existence of a duty of care, even where the relationship between the individuals is sufficient to establish the "special relationship" that is necessary for a duty of care to be found. "In any determination of whether even a special relationship should be held to give rise to a duty to exercise care to avoid harm to a third person, foreseeability plays an important role." Fraser, 236 Conn. at 632. Such a determination is inherently fact based and dependent on the circumstances in each individual case.

If a duty of care were found based upon a foreseeable risk of harm to other Stand Down participants, it would be a duty to exercise reasonable care under the circumstances. The DVA, as the possessor of the property, is not an insurer that is strictly liable in the event of any injury. It would only be liable if it failed to exercise reasonable care under the circumstances to prevent foreseeable harm from occurring. What is "reasonable" depends on the circumstances, and involves an after the fact examination of such factors as staffing levels, staff training, and the appropriateness of any intervention taken in response to threatening conduct.

It is the agency's responsibility to balance the benefit to veterans of conducting Stand Down in any particular manner versus the risk of potential liability for any failure to exercise reasonable care under the circumstances. The risk of potential liability can be reduced to the extent that Stand Down is conducted in a controlled environment where the activity of program attendees can be readily monitored. No matter how "reasonable" the agency's precautionary steps appear to be in their design, there can be no guarantee that a fact finder, looking backwards, might not determine that they were insufficient to satisfy the duty of care under the circumstances.

However, all activity carries some risk and we certainly do not suggest that the potential liability risks outweigh the benefits of the Stand Down program to veterans. That determination is a matter for the DVA to make, based on an evaluation of all the circumstances and benefits.

I trust this answers your inquiry.

Very truly yours,

RICHARD BLUMENTHAL
ATTORNEY GENERAL

Hugh Barber
Assistant Attorney General

RB/HB/ni


1The foregoing is not intended to be a comprehensive listing of all programs and services that the Department is authoized to provide, but does include the most significant programs administered by the Department.

2We note that the request for advice that was submitted by the agency is unclear on this point in that it indicates that, "According to State Statute 27-103, those veterans eligible for assistance from the state, through the department, must have served 90 days in wartime and must have received an honorable discharge." However, from conversations with Deputy Commissioner Collins, who is responsible for the administration of the Veterans' Advocacy and Assistance Unit, it is apparent that the agency is aware that the "service in time of war" eligibility requirement does not apply to the Department's Advocacy Program. The agency correctly provides advocacy services for veterans without regard to that limitation.

3State funds are expended on the Stand Down program as a whole, not as discrete benefit payments made on behalf of particular Stand Down participants.

4In Fraser, the assault took place off the grounds of the facility and was against an individual who was unknown to the treatment professional at the outpatient psychiatric program.

5Notwithstanding that a "special relationship" resulting in a duty of care is usually found only in circumstances that are comparable to custodial care, there are a number of other circumstances where sufficient "control" has been found by a court (looking backwards) resulting in a duty to control being imposed. See, e.g., Tirasoff v. Regents of University of California, 17 Cal. 3d 425, 431, 55a P.2 334 (1976), where a duty to warn an identifiable victim of a psychiatric outpatient was imposed on the treating psychiatrist who was uniquely aware of the foreseeable danger to the intended victim and was the only person in a position to prevent foreseeable injury by warning the intended victim.


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