churchill v wunderlich

7ermont 	Superior Court
Filed 	09/17/26
Franklin 	nit
VERMONT 	SUPERIOR 	COURT 	CIVIL 	DIVISION
Franklin 	Unit 	Case 	No. 	26-CV-00621
17 	Church 	Street
St. 	Albans 	VT 	05478
802-524-7993
www.vermontjudiciary.org
Nigel 	Churchill 	v. 	Eric 	Wunderlich, 	et 	al
ENTRY 	REGARDING 	MOTION
Title: 	Motion 	to 	Dismiss 	(Motion: 	1)
Filer: 	Kristin 	C. 	Wright
Filed 	Date: 	June 	10, 	2026
Plaintiff Nigel 	Churchill 	filed 	this 	lawsuit 	against 	Defendants 	Eric 	Wunderlich 	and 	his
court-appointed 	guardian 	Ahn 	Klein, 	among 	others. 	He 	alleges 	that 	Mr. 	Wunderlich's 	dogs
attacked 	and 	injured 	him, 	and that 	all 	Defendants 	were 	negligent 	in 	failing 	to 	restrain 	the 	dogs.
Ms. 	Klein 	filed 	a 	motion 	asking 	to 	be 	dismissed 	from 	the 	case.
For 	the 	reasons 	below, 	the 	Court 	grants 	the 	motion 	and 	dismisses 	Ms. 	Klein 	from 	the
case.
I. 	Legal 	Standard
In 	ruling 	on 	a 	motion 	to 	dismiss, 	the 	Court's 	task 	is 	to 	examine 	"[if] 	the 	bare 	allegations
of the 	complaint 	constitute 	a 	statement 	of a 	claim 	under 	V.R.C.P. 	8(a)." 	Bethel 	v. 	Mount 	Anthony
Union 	High 	Sch. 	Dist., 	173 	Vt. 	633, 	634 	(2002) 	(mem.) 	(quotations 	and 	alterations 	omitted). 	In
determining 	whether 	a 	complaint 	survives, 	the 	Court 	assumes 	the 	factual 	allegations 	made 	by 	the
nonmoving 	party 	in 	the 	complaint 	are true. 	Colby 	v. 	Umbrella 	Inc., 	2008 	VT 	20, 	J 	5, 184 	Vt. 	1.
The 	Court, 	however, 	is 	not 	required 	to 	accept 	as 	true 	"conclusory 	allegations 	or 	legal 	conclusions
masquerading 	as 	factual 	conclusions" 	on 	a 	motion 	to 	dismiss. 	Vitale 	v. 	Bellows 	Falls 	Union 	High
Sch., 	2023 	VT 	15, 	q 	28, 	217 	Vt. 	611 	(quotation 	omitted).
The 	Court 	will 	only 	grant 	the 	motion 	if "it 	appears 	beyond 	doubt 	that 	there 	exist 	no 	facts
or 	circumstances 	that 	would 	entitle 	the 	plaintiff to 	relief." 	Alger 	v. 	Dep 	't 	ofLabor 	& 	Indus., 	2006
VT 	115, 	1 	12, 	181 	Vt. 	309 	(citations 	and 	quotations 	omitted).
II. 	Background
Applying 	this 	standard, 	the 	Court 	accepts 	the 	allegations 	in 	the 	complaint 	as 	true 	for
purposes 	of deciding 	this 	motion.
On 	February 	13, 	2023, 	the 	Probate 	Division 	appointed 	Heidi 	Anne 	Moberg 	and 	Ahn
Klein 	co-guardians 	of Eric 	Wunderlich 	under 	14 	V.S.A. 	Chapter 	111. 	After 	the 	appointment, 	on
April 	1, 	2023, 	Mr. 	Wunderlich's 	two 	dogs 	attacked 	Mr. 	Churchill. 	At 	the 	time 	of the 	attack, 	the
dogs 	were 	loose 	in 	Mr. 	Wunderlich's 	yard. 	Mr. 	Churchill cycled 	past 	the 	house 	when 	the 	dogs
ran 	at 	him 	and 	attacked 	him, 	biting 	him 	on 	the 	legs, 	right 	hand, 	left 	wrist, 	head, 	and 	back.
Entry 	Regarding 	Motion 	Page 	1 	of 6
26-CV-00621 	Nigel 	Churchill 	v. 	Eric 	Wunderlich, 	et 	al

Entry Regarding Motion Page 2 of 6
26-CV-00621 Nigel Churchill v. Eric Wunderlich, et al
Mr. Wunderlich’s dogs had previously attacked other people on January 9, 2023, and
February 11, 2023. On February 15 and 24, 2023, the Warren County, New York Public Health
Officer sent letters to Mr. Wunderlich, notifying him of one of the prior dog attacks.
Mr. Churchill alleges that Ms. Klein
had a duty to the general public and to Nigel Churchill,
specifically, regarding the dogs, including the duty to properly
restrain the dogs; to keep the dog under control; to take reasonable
measure to ensure the dogs would not cause injury to other
persons; to adequately constrain or oversee the dog when they
knew or should have known that the dog was a probable source of
danger, and to generally take proper precautions to protect the
public and Nigel Churchill from any dangers presented by the dog.
Compl. (filed Jan. 28, 2026) at ¶ 25. He alleges Ms. Klein took no action after being notified of
the prior attacks.
III. Conclusions of Law
The complaint alleges two different theories of liability against Ms. Klein, and she moves
to dismiss under both theories. First, Ms. Klein contends that Mr. Churchill has failed to make
out a claim against her in her capacity as the owner or keeper of the dogs. Second, Ms. Klein
asserts that in her capacity as a guardian for Mr. Wunderlich she owed no duty to a third party
like Mr. Churchill. The Court addresses each argument in turn.
A. Ms. Klein as Owner/Keeper of the Dogs
Vermont does not impose strict liability on dog owners. See Martin v. Christman, 2014
VT 55, ¶ 15, 196 Vt. 536. An owner “is not liable to persons and property unless the owner had
some reason to know the animal was a probable source of danger,” but where the owner knows
the dog is dangerous, he has a duty “to exercise reasonable control and restraint” to avoid injury
to others. Gross v. Turner, 2018 VT 80, ¶ 22, 208 Vt. 112 (quoting Davis v. Bedell, 123 Vt. 441,
442-43 (1963)).
Ms. Klein is not the owner of the dogs. Compl. ¶ 12. However, Vermont law holds
“keepers” of dogs to the same standard as an owner. Crowley v. Groonell, 73 Vt. 45, 47 (1901).
Keeper status turns on conduct toward the dog, not title. A defendant who “housed, harbored
and fed the dog in the way such animals are usually kept by owners” may be regarded as its
keeper even though another person owned it. Plummer v. Ricker, 71 Vt. 114, 116 (1898). Being
a keeper “requires a person to exercise a similar degree of control and care for a dog as its
owner.” Gross, 2018 VT 80, ¶ 23.
Here, Mr. Churchill makes the conclusory allegation that Ms. Klein was an “owner and
keeper” of Mr. Wunderlich’s dogs. Compl., ¶ 25. No other facts in the complaint support this
legal conclusion and the Court is not required to accept as true “conclusory allegations or legal
conclusions masquerading as factual conclusions” on a motion to dismiss. Vitale, 2023 VT 15, ¶

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26-CV-00621 Nigel Churchill v. Eric Wunderlich, et al
28 (quotation omitted). As a result, the Court does not accept the allegation that Ms. Klein was
an owner or keeper of the dogs as true. It contradicts Mr. Churchill’s prior statement that Mr.
Wunderlich owns the dogs.
Because the complaint does not properly allege that Ms. Klein was an owner or keeper of
the dogs, the Court dismisses this theory of liability.
B. Ms. Klein’s Duty as Guardian
Mr. Churchill’s principal theory of liability is that “[t]he relationship of a guardian and a
person in need of guardianship resembles a special relationship, such as that between a parent
and a child, and imposes a duty to control.” Opp. to Mot. to Dismiss (filed May 27, 2026) at 3.
Mr. Churchill argues that Ms. Klein is liable under sections 315 and 319 of the Restatement
(Second) of Torts because she had a duty to control Mr. Wunderlich or his dogs. Ms. Klein
moves to dismiss this theory on the basis that the complaint fails to allege sufficient facts to meet
the standards in sections 315 and 319.
The starting point for the Court’s analysis is the general principle of tort law that a person
may not be held liable for the conduct of a third party. Sorge v. State, 171 Vt. 171, 176 (2000).
A duty may arise where “a special relation exists between the actor and the third person which
imposes a duty upon the actor to control the third person’s conduct.” Restatement (Second) of
Torts § 315(a); see also Sorge, 171 Vt. at 176. Section 319 of the Restatement describes one
type of special relationship: “[o]ne who takes charge of a third person whom he knows or should
know to be likely to cause bodily harm to others if not controlled.” Restatement (Second) of
Torts § 319; see also Sorge, 171 Vt. at 176 (observing that section 319 describes one of the
special relations giving rise to affirmative duties under section 315); accord Nasser v. Parker,
455 S.E.2d 502, 504 (Va. 1995) (observing that courts must consider sections 315(a) and 319
together when “determining whether one has a duty concerning the conduct of a third person”).
The key inquiry under sections 315 and 319 is therefore whether Ms. Klein owed a duty
to Mr. Churchill based on her relationship to Mr. Wunderlich as his court-appointed guardian.
Because Ms. Klein was not the owner or keeper of the dogs, the question is not whether she did
not appropriately protect the public from the dogs, it is whether she owed a duty to protect the
public from the way Mr. Wunderlich was handling his dogs.
In Sorge v. State, a case addressing these two Restatement sections, our Supreme Court
observed that
a breach of the so-called “duty to control” is relevant to a claim of
negligence only if it is first established that the State’s relationship
with the person to be “controlled” is such that it is fair and just to
impose upon the State a duty to control the person’s conduct to
prevent him from causing harm to another.
171 Vt. at 176. Indeed, duty is generally “a question of fairness” and “[t]he inquiry involves a
weighing of the relationship of the parties, the nature of the risk, and the public interest in the
proposed solution.” Id. at 177 (quoting Langle v. Kurkul, 146 Vt. 513, 520 (1986)).

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26-CV-00621 Nigel Churchill v. Eric Wunderlich, et al
In Sorge specifically, a case where a juvenile in the custody of the predecessor to the
Department of Children and Families injured a third person, our Supreme Court provided that
[t]o find an exception to the common-law rule that there is no duty
to control the conduct of another to protect a third person from
harm, we conclude that the State’s purpose in taking charge of the
third person must explicitly be to control that person. Furthermore,
to invoke that exception, the State’s attempts to exercise that
control must be consistent with the specific objective of insulating
a person having dangerous propensities from uncontrolled contact
with others whom the State knows or has reason to know are likely
to be harmed by the person the State intends to isolate.
Id. at 180.
The Court is not aware of a case in Vermont or elsewhere that has addressed a case like
this and articulated the test for determining if a guardian can be held personally liable in the
circumstances alleged here. Combining the requirements of section 319, Sorge, and Vermont’s
case law on the duties owed by dog owners to the general public, to survive a motion to dismiss
Mr. Churchill is required to allege that (1) Ms. Klein sufficiently “took charge” of Mr.
Wunderlich to establish the “special relation” required by section 315 and the control required by
Sorge, (2) when Ms. Klein “took charge” of Mr. Wunderlich she knew or should have known
that Mr. Wunderlich’s dogs were “a probable source of danger,” Gross v. Turner, 2018 VT 80, ¶
22, (3) Ms. Klein failed to “to exercise reasonable control and restraint” of Mr. Wunderlich to
avoid injury to others, id.; Restatement (Second) of Torts § 319, and (4) it is fair to impose
liability in light of the public interest, Sorge, 171 Vt. at 177.
The Court concludes that Mr. Churchill has failed to allege the facts necessary to meet
three of the four elements required to support a claim against Ms. Klein.
The allegations in the complaint do not establish that Ms. Klein “took charge” of Mr.
Wunderlich in the manner contemplated by section 319 and Sorge. Although Ms. Klein was Mr.
Wunderlich’s court-appointed guardian, that status alone is insufficient to establish that the
exception for special relationships applies. See e.g., id. at 176-77 (“special relationship” did not
exists between SRS and a juvenile solely by virtue of statutes that placed the juvenile with SRS).
The complaint does not allege anything about the scope of the guardianship or Ms.
Klein’s role as a guardian. It does not allege that Ms. Klein “took charge” of or controlled Mr.
Wunderlich in any specific way. Nor is it obvious under Vermont law that all guardians would
have taken sufficient control over their ward for purposes of establishing a special relationship
simply by virtue of being a guardian.
In Vermont, guardianships should be used “only as necessary to promote the well-being
of the individual and to protect the individual from violations of his or her human and civil
rights.” 14 V.S.A. § 3060. Indeed, guardianships are designed to “encourage the development
and maintenance of maximum self-reliance and independence in the individual and only the least
restrictive form of guardianship shall be ordered to the extent required by the individual’s actual

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mental and adaptive limitations.” Id. The Probate Division grants powers to guardians “in the
least restrictive manner appropriate to the circumstances of the respondent [, … and …] only to
the extent required by the respondent’s actual mental and adaptive limitations.” Id. § 3069(c).
The Probate Division selects only specific powers to grant to a guardian and may even “further
restrict each power so as to preserve the respondent’s authority to make decisions commensurate
with respondent’s ability to do so[.]” Id.; see also id. § 3069(e) (“The guardian shall exercise
supervisory powers in a manner which is least restrictive of the personal freedom of the person
under guardianship consistent with the need for supervision.”); id. § 3069(f) (“The guardian shall
encourage the person under guardianship to participate in decisions, to act on his or her own
behalf when practicable, and to develop or regain the capacity to manage his or her own personal
affairs to the maximum extent possible. The wishes, values, beliefs, and preferences of the
person under guardianship shall be respected to the greatest possible extent in the exercise of all
guardianship powers.”); id. § 3071(a) (“The guardian shall maintain close contact with the
person under guardianship and encourage maximum self-reliance on the part of the person under
guardianship.”).
Mr. Churchill argues in his opposition to the motion that the Probate Division granted
Ms. Klein “all guardianship powers, not just financial powers[,]” and asks the Court to consider
the petition to appoint a guardian and the order of appointment. Plf. Opp. (filed May 27, 2026)
at 4. These allegations were not made in the complaint and the probate documents were not
attached to the complaint.
But even if the Court considers these attachments and allegations, they do not establish a
section 319 special relationship in light of the purposes and policies underlying Vermont’s
guardianship statutes. Plf. Ex. 2 at 1; see also Off. of Auditor of Accts. v. Off. of Att’y Gen., 2025
VT 36, ¶ 8, 221 Vt. 266 (observing that when complaint relies on outside documents, those
documents merge into the complaint, and the court may properly consider them on a motion to
dismiss). These attachments point to a concern about harm to Mr. Wunderlich, not the public.
They grant to Ms. Klein all guardianship powers, but do not direct that the “purpose in taking
charge of” Mr. Wunderlich is “to control” him. Sorge, 171 Vt. at 180. No facts in the complaint
suggest the guardianship was aimed at protecting third parties from Mr. Wunderlich.
Under Sorge, the exception to the no-duty rule applies where the actor’s “purpose in
taking charge of the third person … explicitly [is] to control that person,” and where the attempt
to exercise control is “consistent with the specific objective of insulating a person having
dangerous propensities from uncontrolled contact with others.” 171 Vt. at 180. That is not what
Chapter 111 guardianship is about.
Accordingly, Mr. Churchill has failed to allege that Ms. Klein “took charge” of Mr.
Wunderlich within the meaning of Restatement section 319 and Sorge, or in the words of section
315, that Ms. Klein and Mr. Wunderlich had a “special relation.” Other courts have been
similarly reluctant to find a section 319 duty in comparable circumstances. See e.g., Kaminski v.
Town of Fairfield, 578 A.2d 1048, 1052 (Conn. 1990) (parents who permitted adult
schizophrenic son to live with them did not undertake a custodial relationship encompassing
responsibility for controlling his behavior; “[a] familial relationship does not, per se, establish
the capacity to control that § 319 envisages as a basis for liability”); Knight v. Merhige, 133 So.
3d 1140, 1146-47 (Fla. Dist. Ct. App. 2014) (parents who housed and financially supported an

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adult son with a documented history of violence did not exercise control sufficient to place him
within “the functional equivalent of their legal custody”).
Next, the Court looks at whether Mr. Churchill has sufficiently alleged that Ms. Klein
was aware that Mr. Wunderlich’s dogs were a probable source of danger. The Court concludes
that he has for purposes of surviving a motion to dismiss.
Turning to the third factor, even if Mr. Churchill could establish that Ms. Klein and Mr.
Wunderlich had a special relationship and Ms. Klein owed a duty to Mr. Churchill, there is no
allegation that Ms. Klein specifically failed to do anything as it relates to controlling Mr.
Wunderlich. Even if Ms. Klein owed a duty to Mr. Churchill in this instance, it is not the same
duty as Mr. Wunderlich owes to others – she does not stand in Mr. Wunderlich’s place in the
traditional liability analysis articulated in Martin v. Christman. Ms. Klein, as a person who does
not own or keep the dog, could at most owe a duty to put in place appropriate safeguards after
considering all of the facts known to her about Mr. Wunderlich and the dogs. There are no
allegations in the complaint regarding what Ms. Klein knew about Mr. Wunderlich’s control and
restraint of the dogs and what she did in response to that.
Finally, the Court looks at whether is fair to impose a duty on Ms. Klein considering the
facts alleged and the public interest. Were the Court to impose liability directly on a guardian in
a case like this under Restatement section 319, it could “discourage families from providing a
haven to troubled relatives for fear of civil liability” and would “foist those most in need of
family interaction on the governmental and charitable social service networks.” Knight, 133 So.
3d at 1150-51. This Court is reluctant to impose a duty on Ms. Klein “that would disturb the
delicate balance the Legislature has crafted between” protecting people in need of guardianship
“and the broader interests of public safety.” Sorge, 171 Vt. at 180.
Mr. Churchill has failed to allege that Ms. Klein “controlled” Mr. Wunderlich in a way
that it would be fair and just to impose upon her a duty to control Mr. Wunderlich’s conduct so
as to prevent him from causing harm to third parties. See Sorge, 171 Vt. at 176.
The Court concludes that Ms. Klein owed no duty to Mr. Churchill based upon a failure
to control the conduct of Mr. Wunderlich in her capacity as his court-appointed guardian.
Absent this duty, the negligence claim against Ms. Klein fails. See Rubin v. Town of
Poultney, 168 Vt. 624, 625 (1998) (mem.).
Order
Based on the foregoing, Ms. Klein’s motion to dismiss her from the case is granted. The
Court dismisses the claim against Ms. Klein without prejudice.
Electronically signed on September 17, 2026, pursuant to V.R.E.F. 9(d).
____________________
Navah C. Spero
Superior Court Judge