Goss

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal
revision before publication in the New Hampshire Reports. Readers are requested to notify
the Clerk/Reporter, Supreme Court of New Hampshire, Supreme Court Building,
Concord, New Hampshire 03301, of any errors in order that corrections may be made
before the opinion goes to press. Opinions are available on the Internet by 9:00 a.m. on the
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http://www.state.nh.us/courts/supreme.htm
THE SUPREME COURT OF NEW HAMPSHIRE
___________________________
Rockingham
No. 97-577
DAVID M. GOSS, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF

KIMBERLY S. GOSS
v.
STATE OF NEW HAMPSHIRE
July 24, 1998
Douglas, Robinson, Leonard & Garvey, P.C., of Concord (Charles G. Douglas, III and Susanna
G. Robinson on the brief, and Ms. Robinson orally), for the plaintiff.
Philip T. McLaughlin, attorney general (Stephen J. Judge, associate attorney general, on the brief
and orally), for the defendant.
BROCK, C.J. The plaintiff, David M. Goss, filed an action alleging negligence and loss of
consortium against the defendant, the State of New Hampshire, seeking damages for the rape and
murder of his wife, Kimberly S. Goss, by Daniel Vandebogart. The defendant brings this
interlocutory appeal from the Superior Court's (McHugh, J.) orders denying the defendant's
motions for summary judgment. See Sup. Ct. R. 8. We reverse.
On June 28, 1989, the Manchester Police Department arrested Daniel Vandebogart for simple
assault and criminal threatening. On the same day, Vandebogart was released on a $200 personal
recognizance bond, which the bail commissioner set without knowledge that Vandebogart was a
State of Montana parolee who had been transferred to New Hampshire, or that he had two prior
sexual assault convictions in other jurisdictions. See State v. Vandebogart, 139 N.H. 145, 150,
652 A.2d 671, 674 (1994) (detailing Vandebogart's prior sexual assaults).
Vandebogart's New Hampshire parole officer, Brian Jones of the New Hampshire Department of
Corrections, first learned of Vandebogart's arrest when reviewing the docket of the Manchester
District Court on July 7, 1989, the day set for Vandebogart's formal arraignment. After
requesting police reports from the Manchester police and discussing with Vandebogart the
circumstances of his arrest, Officer Jones increased Vandebogart's supervision level and
informed the authorities in Montana of his arrest. Officer Jones also contacted the city
prosecutor, who prepared a motion to revoke Vandebogart's bail but eventually withdrew it as
part of an agreement with Vandebogart's attorney. On July 18, 1989, following discussions with
his supervisors, Officer Jones recommended to the Montana authorities that they issue a warrant
for Vandebogart's arrest upon his conviction in district court. Although Officer Jones did not
contact the New Hampshire Adult Parole Board (parole board) regarding Vandebogart's arrest,
the booking officer stated in an affidavit that he telephoned the parole and probation office and
informed them of the arrest on June 28, the day that Vandebogart was taken into custody.
On September 12, 1989, Kimberly S. Goss was brutally raped and murdered outside her home in
Londonderry. Vandebogart was convicted for this crime and is currently serving a life sentence
without the possibility of parole. See Vandebogart, 139 N.H. at 148, 168, 652 A.2d at 673, 685.
The plaintiff filed a negligence action against the State, alleging that Officer Jones' failure to
report Vandebogart's June 28 arrest to the parole board caused his wife's death. The defendant
filed a motion for summary judgment claiming discretionary function immunity, the absence of a
common law or statutory duty to report Vandebogart's arrest to the parole board, and a lack of
proximate cause. After the superior court denied the motion, the defendant filed a motion to
reconsider which the court also denied. The defendant appeals.
"When reviewing the denial of a motion for summary judgment, we consider the pleadings and
any accompanying affidavits, and all proper inferences drawn from them, in the light most
favorable to the nonmoving party." Mahan v. N.H. Dep't of Admin. Services, 141 N.H. 747, 748,
693 A.2d 79, 81 (1997). "[S]ummary judgment may be granted only where no genuine issue of
material fact is present, and the moving party is entitled to judgment as a matter of law." Goss v.
City of Manchester, 140 N.H. 449, 450-51, 669 A.2d 785, 786 (1995) (quotation omitted).
The State contends that it is entitled to summary judgment because it did not proximately cause
the death of Kimberly S. Goss. "The concept of proximate cause includes both the cause-in-fact
and the legal cause of injury." Bronson v. The Hitchcock Clinic, 140 N.H. 798, 801, 677 A.2d
665, 668 (1996). A defendant's conduct is a legal cause of harm if he could have reasonably
foreseen that his conduct would result in an injury, or if his conduct was unreasonable in light of
what he could anticipate. Goodwin v. James, 134 N.H. 579, 583, 595 A.2d 504, 507 (1991); see
LeFavor v. Ford, 135 N.H. 311, 315, 604 A.2d 570, 573 (1992) (noting that resulting injury must
be foreseeable consequence of defendant's conduct).
The plaintiff contends that if Officer Jones had reported Vandebogart's arrest to the parole board,
rather than to the Montana authorities, the parole board would have ensured that Vandebogart
remained incarcerated. Even if we assume, without deciding, that this claim satisfies the cause-
in-fact prong of proximate cause, the plaintiff provides no compelling argument that Officer
Jones' failure to contact the parole board legally caused the harm that occurred.
Officer Jones could not have foreseen that failing to contact the New Hampshire parole board,
and contacting only Montana parole authorities, would result in a brutal rape and murder. See
Goodwin, 134 N.H. at 583, 595 A.2d at 507. Moreover, contacting only the Montana authorities
was not unreasonable because his conduct complied with the New Hampshire Department of
Corrections' procedures, and because Montana retained ultimate authority to revoke
Vandebogart's parole. See RSA 504-A:3 (1997); see also RSA 651-A:25, II (1996) (receiving
State assumes limited duties of visitation and supervision over out-of-state parolees). But see
RSA 651-A:25, III-a (1996) (effective 1993) (receiving State may hold final revocation
hearings). We therefore conclude that, as a matter of law, legal causation cannot be established in
this case. The nexus between the State's omission and the plaintiff's harm is "simply too
attenuated to impose legal liability on the part of the defendant." McLaughlin v. Sullivan, 123
N.H. 335, 342, 461 A.2d 123, 127 (1983).
Consequently, no reasonable jury could find that proximate cause exists, and we therefore
reverse the trial court's denial of summary judgment. Because we reverse on this issue, we need
not reach the State's remaining arguments. See Appeal of City of Portsmouth, Bd. of Fire
Comm'rs, 137 N.H. 552, 558, 630 A.2d 769, 772 (1993).
Reversed.
BRODERICK, J., sat but did not participate in the decision; the others concurred.

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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal

THE SUPREME COURT OF NEW HAMPSHIRE

DAVID M. GOSS, INDIVIDUALLY AND AS ADMINISTRATOR OF THE ESTATE OF

STATE OF NEW HAMPSHIRE

July 24, 1998

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