Peters v. State

ENTRY_ORDER.93-004; 161 Vt. 582; 636 A.2d 340

[Filed 19-Nov-1993]

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 93-004

                             OCTOBER TERM, 1993


 Donna Peters, et al.              }          APPEALED FROM:
                                   }
                                   }
      v.                           }          Addison Superior Court
                                   }
                                   }
 State of Vermont                  }          DOCKET NO. S259-89Ac


              In the above entitled cause the Clerk will enter:

      Lawrence Peters died as the result of an accident on Route 125 in East
 Middlebury, Vermont, on February 3, 1988.  His widow, on behalf of herself,
 the estate, and the minor children, brought a wrongful death action against
 the State of Vermont, alleging that the State was negligent in the placement
 of warning signs on the highway.  She claimed that the State waived immunity
 for the negligence under 12 V.S.A. { 5601(a) (FN1) of the Vermont Tort Claims
 Act.

      The State moved for summary judgment on the ground that placement of
 warning signs on state highways is a uniquely governmental function for which
 no private analog exists, and therefore, there was no waiver of sovereign
 immunity.  The trial court agreed and granted summary judgment for the State.
 Plaintiff moved for reconsideration, which the court denied, and this appeal
 followed.  We reverse.

      In reviewing a motion for summary judgment, we use the same standard as
 that used by the trial court.  Summary judgment is appropriate where there is
 no genuine issue of material fact and the moving party is entitled to judgment
 as a matter of law.  V.R.C.P. 56(c); State v. Delaney, 157 Vt. 247, 252, 598 A.2d 138, 141 (1991).  Here, the State conceded, for purposes of its motion,
 that it was negligent in the placement of warning signs on Route 125 and that
 this negligence caused the death of Lawrence Peters.  The issue on appeal,
 therefore, is whether the State was entitled to judgment as a matter of law.

 

      Plaintiff contends that the facts conceded by the State are comparable
 to situations where a private citizen may be sued, and therefore, a private
 analog does exist.  We agree.  In LaShay v. Department of Soc. & Rehab.
 Servs., ___ Vt. ___, ___, 625 A.2d 224, 229 (1993), we held that the
 Department of Social and Rehabilitation Services (SRS) was not immune from
 liability for negligently placing and supervising a child in foster care.  We
 found that private individuals or entities may also place and supervise
 children in foster care, and may be liable for negligence "comparable" to
 that asserted by the plaintiff; therefore, a "comparable" cause of action
 could be brought against SRS.  Id.; see also Denis Bail Bonds, Inc. v. State,
 ___ Vt. ___, ___, 622 A.2d 495, 498 (1993) ("threshold issue [under 12 V.S.A.
 { 5601(a)] is whether plaintiff's factual allegations . . . satisfy the neces-
 sary elements of a cause of action against the State comparable to one that
 may be maintained against a private person").

      In the present case, too, a private analog exists where plaintiff's
 claim against the State is comparable to recognized causes of action that may
 be brought against private persons who own or control roads.  See Department
 of Hwys. & Pub. Transp. v. Bacon, 754 S.W.2d 279, 281 (Tex. Ct. App. 1988) (in
 plaintiff's action against state for failing to warn of icy conditions, "[t]he
 duty owed by the State is the same as the duty owed by a private person to a
 licensee on private property"); cf. Restatement (Second) of Torts { 342
 comment d, illustration 2 (1965) (where A owns road and invites B to drive on
 that road, A liable for failure to warn B of dangerous condition); id. { 367
 (private liability for dangerous condition on land appearing to be highway);
 Reider v. City of Spring Lake Park, 480 N.W.2d 662, 667 (Minn. Ct. App. 1992)
 (church liable for motorcyclist's injuries suffered in striking unmarked
 barricade because of inadequate signage on private road); Ridge v. Grimes, 281 S.E.2d 448, 450 (N.C. Ct. App. 1981) (jury could find that developer, by
 undertaking to construct road in subdivision knowing public would use it as
 public road, incurred duty to plaintiff to maintain road in safe condition
 "and to give adequate warning of any contrary condition"); Wolfe v. Union
 Pacific R.R., 368 P.2d 622, 625 (Or. 1962) (where plaintiff mistook private
 road for public road and drove down steep embankment after unmarked sharp left
 turn, jury could conclude failure to erect warning sign or barricade at curve
 was negligent conduct); Baran v. Pagnotti Enterprises, Inc., 586 A.2d 978, 983
 (Pa. Super. Ct. 1991) (jury question whether owner of private road and strip-
 mine pit exercised reasonable care to warn public of danger, where decedent
 drove off road into pit).

      The State contends that its immunity is waived only if a private
 individual would be liable under the "same circumstances," pointing out that
 the use of the word "same" in Vermont's statute constitutes a "critical
 distinction" from the Federal Tort Claims Act.  Compare 12 V.S.A. { 5601(a)
 with 28 U.S.C.A. { 2674 ("The United States shall be liable . . . in the same
 manner and to the same extent as a private individual under like circumstances
 . . . ." (emphasis added)).  In this case, according to the State, the "same
 circumstances" would require that a private individual negligently place a
 warning sign on a state road.  Since the duty to erect appropriate signs on
 state roads is conferred on the Agency of Transportation only, 19 V.S.A. {
 10(7), private individuals have no authority to place signs thereon and may

 

 not be held liable for failing to place them properly.  See 23 V.S.A. { 1027
 (prohibiting unauthorized signs, signals, or markings on highways).

      In support of its argument, the State cites Indian Towing Co. v. United
 States, 350 U.S. 61, 63-64 (1955), wherein the federal government was sued
 for damages to a barge because of alleged negligent operation of a light-
 house.  The government contended that the statutory term "like circumstances"
 should be construed as "same circumstances," and that there could be no
 liability for activities that private persons do not perform.  The United
 States Supreme Court held, however, that even though the Coast Guard was the
 only possible operator of a lighthouse, making the operation a "uniquely
 governmental function," the government was not immune from liability for
 failing to operate the lighthouse "in a careful manner."  Id. at 64-65.  Thus,
 Indian Towing is of little help to the State's cause.  See Sterling v. Bloom,
 723 P.2d 755, 762 (Idaho 1986) ("Indian Towing . . . full well comprehended
 that the language here concerned created government liability for the same
 causes of action for which private persons would be held liable.") (emphasis
 in original).

       There are, of course, governmental functions for which no private analog
 exists, and for these the waiver under 12 V.S.A. { 5601(a) will not apply.
 See Akutowicz v. United States, 859 F.2d 1122, 1125 (2d Cir. 1988) ("Without
 doubt, no private citizen is empowered to certify the loss of American
 nationality."); C.P. Chemical Co. v. United States, 810 F.2d 34, 38 (2d Cir.
 1987) (complaint dismissed because government regulation banning particular
 type of insulation "was a quasi-legislative activity for which we find no
 private counterpart").

      Because we find that the 12 V.S.A. { 5601(a) waiver applies to this case,
 we need not address plaintiff's argument that the State waived its sovereign
 immunity under 29 V.S.A. { 1403 as it existed at the time of the accident.

      Reversed and remanded.





                                    BY THE COURT:



                                    Ernest W. Gibson III, Associate Justice


 [ ]  Publish                       John A. Dooley, Associate Justice

 [ ]  Do Not Publish
                                    James L. Morse, Associate Justice


                                    Denise R. Johnson, Associate Justice



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                                 Footnotes

FN1.    12 V.S.A. { 5601(a) states, in pertinent part:
               (a) The state of Vermont shall be liable for
               injury to persons or property or loss of life
               caused by the negligent or wrongful act or
               omission of an employee of the state while
               acting within the scope of employment, under
               the same circumstances, in the same manner and
               to the same extent as a private person would
               be liable . . . .