Hillerby v. Town of Colchester
Annotate this Case
Hillerby v. Town of Colchester (96-243); 167 Vt. 270; 706 A.2d 446
[Filed 26-Nov-1997]
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 96-243
Donald Hillerby Supreme Court
On Appeal from
v. Chittenden Superior Court
Town of Colchester November Term, 1996
Alden T. Bryan, J.
Richard R. Goldsborough and Corinne P. Wadhams of Jarvis & Kaplan,
Burlington, for plaintiff-appellee
Richard C. Whittlesey of Roesler, Whittlesey, Meekins & Amidon,
Burlington, and Frederick S. Lane III, Of Counsel, Winooski, for
defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
ALLEN, C.J. The following question has been certified for review by
this Court pursuant to V.R.A.P. 5(b): "Whether the traditional
governmental/proprietary distinctions in municipal tort immunity law should
be replaced with the so-called private-analog test as now employed in state
tort claims under 12 V.S.A. § 5601?" Because of the Legislature's approval
of the governmental/proprietary distinction and the complex policy issues
involved, we hold that the abrogation and replacement of the distinction
are matters for the Legislature, not the courts.
Plaintiff was riding his bicycle across a grassy area in the Town of
Colchester when a manhole cover, over which he was crossing, collapsed. He
sued the Town and others for injuries allegedly sustained during the
occurrence. The Town filed a motion for summary judgment claiming
sovereign immunity. In deciding the motion, the Chittenden Superior Court
abandoned the established governmental/proprietary distinction in favor of
the private-analog test, a test used to determine the liability of the
State in tort actions. See 12 V.S.A. § 5601(a). It found that plaintiff
satisfied the requirements of the test and denied the Town's motion. The
court then granted a motion by the Town requesting permission to appeal the
court's interlocutory order to this Court.
Municipal immunity is a common-law doctrine dating back in Vermont to
the mid 1800s. See Baxter v. Winooski Turnpike Co., 22 Vt. 114, 123 (1849)
(law does not provide remedy where individual sustains injury due to
negligence of town). The immunity of a municipality, however, is not
unlimited. Traditionally, courts have held municipalities liable only
where the negligent act arises out of a duty that is proprietary in nature
as opposed to governmental. The rationale for this is that municipalities
perform governmental responsibilities for the general public as
instrumentalities of the State; they conduct proprietary activities only
for the benefit of the municipality and its residents. See Marshall v.
Town of Brattleboro, 121 Vt. 417, 422, 160 A.2d 762, 765 (1960). This
Court has applied the governmental/proprietary distinction for decades.
See, e.g., Roman Catholic Diocese of Vt., Inc. v. City of Winooski Hous.
Auth., 137 Vt. 517, 520, 408 A.2d 649, 651 (1979) (municipal housing
project is proprietary activity not entitled to immunity); Lemieux v. City
of St. Albans, 112 Vt. 512, 516, 28 A.2d 373, 375 (1942) (construction of
public playground is governmental function, thus precluding municipal
liability). Yet it has also criticized the doctrine and acknowledged its
abandonment by other jurisdictions. See, e.g., Hudson v. Town of E.
Montpelier, 161 Vt. 168, 177-78 n.3, 638 A.2d 561, 567 n.3 (1993) (Vermont
is in minority of states that follows distinction widely denounced as
unworkable, unsound, and arbitrary); Marshall, 121 Vt. at 423-24, 160 A.2d
at 766-67 (distinction produces anomalous results in factually similar
cases). But see Kelly v. Town of Brattleboro, 161 Vt. 566, 567, 641 A.2d 345, 346 (1993) (mem.) (applying distinction in same year that Hudson was
decided).
In the present case, the Town argues that this Court should not
abandon the governmental/proprietary distinction because the Legislature
has explicitly and implicitly endorsed the doctrine. Plaintiff, however,
urges this Court not to "`shirk[] its duty and retreat[] into the safe
haven of deference to the legislature.'" (Quoting Hay v. Medical Ctr.
Hosp. of
Vt., 145 Vt. 533, 543-44, 496 A.2d 939, 945 (1985).) He claims that the
argument that "`the issue is more appropriate for legislative resolution is
wholly unpersuasive; such an argument ignores [this Court's] responsibility
to face a difficult legal question and accept judicial responsibility for a
needed change in the common law.'" (Quoting id. at 543, 496 A.2d at 945.)
Plaintiff points out that municipal immunity and the
governmental/proprietary distinction are common-law doctrines that a
variety of courts have abrogated without legislative action. Yet this
Court's ability to act does not turn on whether the doctrines in question
are judicially created, but on whether the Legislature has expressed
approval of these doctrines since their formulation. Such approval
precludes judicial action. See Town of Milton v. Brault, 132 Vt. 377, 380,
320 A.2d 630, 632 (1974) (refusing to abolish municipal immunity because of
Legislature's endorsement; distinguishing abandonment of doctrine by other
state courts following legislative silence).
The Legislature first recognized sovereign immunity in 1959 when it
adopted 29 V.S.A. § 1403, which waived immunity to the extent of coverage
whenever the State, a county, or a municipality purchased liability
insurance. See 1959, No. 328 (Adj. Sess.), § 14 (when governmental entity
purchases liability insurance "it waives its sovereign immunity from
liability to the extent of the coverage of the policy and consents to be
sued"). The Legislature amended the statute in 1981 and 1989, eliminating
the State from its coverage with the second amendment. See 1981, No. 213
(Adj. Sess.), § 1; 1989, No. 114, § 7. The enactment and amendments of §
1403 are an explicit acknowledgment of municipal immunity and an implicit
recognition of the governmental/proprietary distinction. They also
demonstrate the Legislature's intent to treat state and local governments
differently, as well as its desire to ameliorate the possible harsh
consequences of governmental immunity. See Marshall, 121 Vt. at 424, 160 A.2d at 767; cf. Ark. Code Ann. § 21-9-303 (Michie 1996) (softening impact
of municipal immunity by including insurance-waiver provision). Given the
Legislature's acknowledgment and modification of municipal immunity and the
governmental/proprietary distinction, we cannot
drastically alter the manner by which courts decide issues of local
liability. See Roman Catholic Diocese, 137 Vt. at 519-20, 408 A.2d at
650-51 (because Legislature recognizes municipal immunity in § 1403, Court
is bound to accept its continuance).
Under the common law, lawsuits against the State are barred unless the
State consents to be sued by waiving its sovereign immunity. Denis Bail
Bonds, Inc. v. State, 159 Vt. 481, 484-85, 622 A.2d 495, 497 (1993). In
1961, the Legislature enacted the Vermont Tort Claims Act (VTCA), waiving
the State's immunity in specified tort actions. 1961, No. 265, §§ 1-5
(codified as amended at 12 V.S.A. §§ 5601-5606). Although some states have
passed legislation that limits both state and municipal immunity, see,
e.g., Or. Rev. Stat. §§ 30.260 - 30.300 (1995), the Vermont Legislature
chose to address only the liability of the State in its legislation. See,
e.g., 12 V.S.A. § 5601(a) ("The state of Vermont shall be liable for . . .
."). Had the Legislature intended to alter the governmental/proprietary
distinction, it could have included municipalities in the VTCA or enacted a
separate statute relating only to municipalities. We see its failure to do
so as an endorsement of the distinction.
In 1985, the Legislature again indicated approval of the distinction
with its enactment of 24 V.S.A. §§ 4941-4946, a statute relating to
intermunicipal insurance agreements. See 1985, No. 237 (Adj. Sess.), § 1.
Section 4946 states that "the implementation of this subchapter by any
municipality . . . shall constitute essential governmental functions."
(Emphasis added.) It also states that participation by a municipality in
an agreement shall not "constitute a waiver of sovereign immunity under 29
V.S.A. § 1403." 24 V.S.A. § 4946 (emphasis added). Both references
demonstrate the Legislature's recognition and acceptance of the
governmental/proprietary distinction.
The Town also argues that complicated public policy issues preclude
the Court from abandoning the governmental/proprietary distinction and
replacing it with the private-analog test. This Court adopted the
distinction specifically to address the dual character of municipalities.
See Town of Stockbridge v. State Highway Bd., 125 Vt. 366, 369-70, 216 A.2d 44, 46-47
(1965) (municipality is liable for acts exercised for private advantage,
not liable for acts discharged on behalf of state). The Legislature, on
the other hand, adopted the private-analog test to determine only issues
of state liability. According to the statute, the State is "liable for
injury . . . 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 to the claimant." 12 V.S.A. § 5601(a).
Different policy considerations, especially financial concerns, must be
examined to decide the scope of state as compared to municipal liability.
In adopting the private-analog test, the Legislature addressed and
responded to issues of public policy only in the context of state sovereign
immunity. Simply because the private-analog test appears to be an adequate
solution regarding state liability does not mean that similar results will
occur where municipalities are involved.
It is also important to note that the Legislature tailored the
private-analog test with exceptions and limitations that this Court is in
no position to define and compel in the area of municipal immunity. See
Denicore v. City of Burlington, 116 Vt. 138, 144, 70 A.2d 582, 586 (1950)
("`Where the Legislature has declared no limitations the courts are without
power to write them into the law. . . . The Legislature alone can
prescribe limitations.'") (quoting State ex rel. Saylor v. Walt, 278 N.W. 12, 15 (S.D. 1938)). Not only has the Legislature limited the amount of
damages that an individual or group of plaintiffs may receive from the
State, see 12 V.S.A. § 5601(b) (maximum liability of State is $250,000 for
individual plaintiff and $1,000,000 in the aggregate regarding each
occurrence), but it has also excepted from liability claims arising out of
the execution of a statute or regulation, those involving the assessment or
collection of taxes, and a variety of others. See id. § 5601(e)(1)-(8).
In addition, the Legislature has addressed the areas of settlement,
payment, and indemnification of state employees. See id. §§ 5603, 5604,
5606. By adopting the private-analog test for municipalities, this Court
would expose towns to increased liability without the protections that the
Legislature carefully adopted for the State.
Although stated in relation to the abolishment of state sovereign immunity,
the words of Maryland's highest court are equally applicable to the
abrogation of municipal immunity:
[I]t is desirable and in the public interest that any change in the
doctrine of sovereign immunity should come from the legislative
branch of the State Government rather than from the judicial
branch inasmuch as there are fiscal considerations, administrative
difficulties and other problems in balancing the rights of the State
and its agencies with new possible rights of the individual citizens,
which can far better be considered and resolved by the legislative
branch than by the judiciary of the State.
Jekofsky v. State Roads Comm'n, 287 A.2d 40, 42 (Md. 1972).
Our refusal to abolish the governmental/proprietary distinction should
not be read as an endorsement of that distinction. We point out, as we did
in Hudson, 161 Vt. at 177-78 n.3, 638 A.2d at 567 n.3, that many courts,
legislatures, and commentators have strongly criticized this method of
determining municipal liability. Yet we believe that our role in
addressing this issue, at this time, is not to reform the rules of
municipal immunity, but to give the Legislature the initial opportunity to
fashion a more reasonable and workable doctrine. Its fact-finding and
problem-solving process is better suited for the task in this area of the
law.
The certified question is answered as follows: the abrogation and
replacement of the governmental/proprietary distinction is a matter for the
Legislature.
FOR THE COURT:
_______________________________________
Chief Justice
-------------------------------------------------------------------------------
Dissenting
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 96-243
Donald Hillerby Supreme Court
On Appeal from
v. Chittenden Superior Court
Town of Colchester November Term, 1996
Alden T. Bryan, J.
Richard R. Goldsborough and Corinne P. Wadhams of Jarvis & Kaplan,
Burlington, for plaintiff-appellee
Richard C. Whittlesey of Roesler, Whittlesey, Meekins & Amidon,
Burlington, and Frederick S. Lane III, Of Counsel, Winooski, for
defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
DOOLEY, J., dissenting. In two of three of its general themes, I
concur in Justice Johnson s dissent. The governmental/proprietary
distinction is neither appropriate nor workable and should be abandoned.
This Court created the distinction and should now eliminate it, making it
irrelevant to the negligence liability of a municipality whether a
governmental or proprietary activity was involved. The Legislature has
never endorsed this distinction, and we should not leave it to that body to
eliminate it. We cannot, as the majority holds, refuse to endorse the
distinction but leave it in place.
I do not concur, however, in the broader view that we should also
eliminate general municipal immunity, leaving only the very limited
protections proposed by Justice Johnson. Nor do I believe that our goal
should be to expand municipal liability. Many of the reasons for municipal
immunity have become archaic; many did not support the policy even when it
was adopted. Our task should be to tailor our law on municipal immunity to
the modern policy reasons for recognizing such immunity.
Justice Johnson has explained that one of the important goals of any
modern municipal immunity policy is to preserve separation of powers and
protect certain executive-branch decision-making from second-guessing in
the Judiciary. I agree that this is an important goal, but it is not the
only goal.
Throughout this century, government at all levels has taken on new
responsibilities to protect the health and safety of its citizens. Through
inspection and regulation, government seeks to prevent activities that
would impair the public health or degrade the environment. Through its law
enforcement and corrections personnel, it seeks to prevent crime and
incapacitate violent lawbreakers. Through its fire-fighters, it seeks to
prevent property damage and loss of life from fires. Through proper
design, construction and operation, it makes modern transportation systems
safe and efficient. If the promise of these governmental programs were
fully realized, the vast majority of personal injuries would be prevented
and there would be few adverse public health consequences from pollution
and environmental degradation. Conversely, it is possible to assign some
of the blame for almost any serious personal injury or environmentally
caused sickness to the failure of a governmental actor to intervene
effectively and in a timely fashion.
There are other reasons that government becomes a tort-litigation
target. Many of the standards under which government employees act are,
and must be, embodied in statutes and regulations that become duties, the
breach of which gives rise to tort liability. Judgments against
governmental units are usually collectible.
I do not believe that our tort-liability rules should provide that
whenever the appropriate response of a government agent could have
prevented a personal injury or adverse health consequence, the responsible
governmental unit is liable along with any primary tortfeasor. Not only
were the governmental programs not designed to assume a personal duty to
every potential beneficiary, particularly in an era of scarce public
resources where need and demand are inevitably greater than the capacity to
meet them, but the liability consequences of such a policy would be
massive, threatening the ability of government to respond at all to health
and safety
threats. It would be wiser to spend any additional resources on making
prevention programs work better for the benefit of all citizens rather than
responding to tort claims.
Even in Vermont where most municipalities are small and are governed
by volunteers, municipalities have responsibility in essential areas of
public health and safety. For example, municipalities are generally
responsible for law enforcement, fire protection, and housing and building
codes. Thus, the abolition of municipal immunity would expose Vermont
cities and towns to a great and unmeetable liability exposure.
One possible response to the issues before us is to point out the
difficulties and deficiencies in possible approaches and leave it to the
Legislature to act. Both the majority decision and the dissent of Justice
Johnson propose this response. The majority resolution is not likely to
induce any response since the Legislature can continue with the status quo
no matter how irrational the status quo may be. Cities and towns,
supported by insurance carriers, are likely to respond to Justice Johnson s
position by declaring a liability crisis, requiring immediate and emergency
action by the Legislature to fix the problem. I do not think that we deal
appropriately with a coequal branch of government by either action. I
think our proper response is to create a new, workable municipal immunity
rule. We can do so prospectively, as Justice Johnson suggests. If the
Legislature is able to improve on any immunity rule we adopt, we should
welcome its action.
The superior court proposed that we adopt, as an alternative to our
current rule, the private-analog test, which is used to determine whether
the state is immune from suit. See, e.g., Denis Bail Bonds, Inc. v. State,
159 Vt. 481, 486, 622 A.2d 495, 498 (1993). In addition, there are two
main alternatives in use by courts which have abolished blanket municipal
immunity and rejected the governmental/proprietary-responsibility rule: (1)
immunity covering breaches of public duties; and (2) immunity for
discretionary acts. I would adopt both of these alternatives. The
public-duty rule is similar in effect and purpose to the private-analog
test; its adoption would make it unnecessary to consider the private-analog
test.
Under the public-duty rule, tort liability does not attach where the
duty owed by the
municipality runs to the public in general, rather than to any particular
member of the public, in the absence of a special relationship between the
municipality and the tort plaintiff. We have an interesting recent history
with this rule. In Hudson v. Town of East Montpelier, 161 Vt. 168, 176-77,
638 A.2d 561, 566-67 (1993), we refused to adopt the doctrine as a defense
to negligence cases against individual municipal employees. In doing so,
we were quite critical of the rule: it is confusing and leads to
inequitable, unpredictable, and irreconcilable results. Id. at 176, 638 A.2d at 566.
Nevertheless, one year later in Corbin v. Buchanan, 163 Vt. 141, 143,
657 A.2d 170, 172 (1994), we applied the doctrine to the question of
whether a municipality could be liable for failure to conduct regular fire
inspections of apartment buildings. In that case, a young boy died in a
fire in a building that had been inspected by a town inspector in response
to a complaint about wiring, plumbing and sewer problems. The inspector
noticed that the building lacked smoke detectors, but did not pursue that
issue because it was not part of the complaint. Plaintiff alleged that the
fire code adopted by the town required regular periodic inspection and that
such inspection would have turned up the absence of smoke detectors as a
violation of the ordinance.
Without referring specifically to the public-duty doctrine, we held
that the town could not be liable for failure to enforce the fire code
because the duty was owed to the public as a whole. Id. We cited to
public-duty-rule cases from other jurisdictions and quoted extensively from
one. We recognized the apparent inconsistency of the holding with Hudson
and attempted to distinguish that case on the ground that Hudson dealt with
official immunity while Corbin dealt with whether a duty of care existed.
Justice Johnson would treat Corbin as sui generis, standing simply for
the proposition that government entities are not liable for their failure
to enforce regulations adopted to protect the public at large. Post, at
12. While this statement covers part of the public-duty rule, it ignores
other factual situations where the rationale will apply. I do not believe
we can, or should, limit the application of the rationale.
I am reminded of the Massachusetts experience. In Dinsky v. Town of
Framingham, 438 N.E.2d 51, 56 (Mass. 1982), the Massachusetts Supreme Judicial Court
similarly held that a town was not liable for damages arising out of its
failure to inspect pursuant to a building code because the building code
created a duty only to the public at large. Over time, Dinsky was applied
in other circumstances, and the Court acknowledged in 1993 that it had
adopted the so-called public duty rule. Jean W. v. Commonwealth, 610 N.E.2d 305, 308 (Mass. 1993). The Court then reversed course, holding that
the public-duty rule could not coexist with the comprehensive Massachusetts
Tort Claims Act, which governed the liability of all units of government.
See id. at 312. In response, the Legislature amended the Act to specify
the liability outcome in all the common circumstances covered by the
public-duty rule. See Mass. Gen. Laws Ann. ch. 258, § 10 (West Supp.
1997). The law specifically provides immunity against claims based on
issuance of or refusal to issue a license or permit, failure to inspect or
negligent inspection, acts or omissions connected with fighting a fire,
failure to provide adequate police protection or to arrest or detain
suspects or enforce any law, and the release of persons in public custody.
See generally Glannon, Liability for Public Duties Under the Tort Claims
Act: The Legislature Reconsiders the Public Duty Rule, 79 Mass. L. Rev. 17
(1994).
Our Hudson decision criticized the public-duty rule for three reasons:
(1) it resurrects governmental immunities; (2) in recent years [it] has
been rejected or abolished by most courts considering it ; and (3) it is
confusing and leads to inequitable, unpredictable, and irreconcilable
results. 161 Vt. at 176, 638 A.2d at 566. I agree generally with these
criticisms if they are applied to the liability of individual government
employees and we retain the governmental/proprietary distinction to
determine municipal liability. I think they are overstated when applied to
municipal liability and should not deter us from adopting the public-duty
rule as an alternative to our current policy.
If our goal is to eliminate municipal immunity, the public-duty rule
is inconsistent with that goal. See, e.g., Note, Massachusetts General
Laws Chapter 258, § 10: Slouching Towards Sovereign Immunity, 29 N.E.L.
Rev. 1079, 1080 (1995). But, I believe that our goal is different: to
define where governmental assistance, designed to protect the health and
safety of
citizens generally, should give rise to a duty to protect individual
citizens such that negligent breach of the duty should give rise to tort
liability. The public-duty rule addresses that goal directly. Thus, the
fact that it resurrects governmental immunities is its strength, not its
weakness.
If there has been any trend to reject or abolish the public-duty rule,
it has been a slight trend. Comment, Connecticut Tort Reform Act and
Municipalities and Building Officials Liability, 20 Conn. L. Rev. 203, 216
(1987); see generally Annotation, Modern Status of Rule Excusing
Governmental Unit from Tort Liability on Theory that Only General, Not
Particular, Duty Was Owed Under Circumstances, 38 A.L.R.4th 1194 (1985 &
Supp. 1997) (indicating that only a handful of states have rejected
public-duty rule). In New England, only New Hampshire has abolished the
rule. See Doucette v. Town of Bristol, 635 A.2d 1387, 1390 (N.H. 1993).
The Massachusetts Court abolished the rule, but, as discussed above, the
Legislature effectively reinstated it.
The most telling criticism of the public-duty rule is that it can be
difficult to apply. I do not believe this is because the rule is
inherently defective, but because the choices are often complex and hard.
Any rule that attempts to determine instances where it is appropriate to
impose municipal liability for governmental acts is necessarily
complicated. The alternatives, however, are less acceptable. They are
that we impose broad and unwarranted liability on municipalities because
they have assumed responsibilities to protect the health and safety of
their citizens, or that we, or the Legislature, adopt broad immunities that
unnecessarily deny citizens a remedy. If the Legislature finds the
applications of the rule inappropriate, it can, as in Massachusetts,
legislate those results directly.
I would also immunize a municipality from acts of employees that are
discretionary, rather than ministerial. Justice Johnson s dissent states
the rationale for this form of immunity. Although they differ on the scope
of discretionary acts that are covered by immunity, all New England states
extend municipal immunity to discretionary acts. See Conn. Gen. Stat. §
52-557n(a)(2)(B) (Supp. 1997); Gordon v. Bridgeport Housing Auth., 544 A.2d 1185, 1189 (Conn.
1988); Me. Rev. Stat. Ann. tit. 14 § 8104-B(3) (West Supp. 1996); Adriance
v. Town of Standish, 687 A.2d 238, 240 (Me. 1996); Mass. Gen. Laws Ann. ch.
258, § 10(b) (West 1988); Horta v. Sullivan, 638 N.E.2d 33, 36-37 (Mass.
1994); Merrill v. City of Manchester, 332 A.2d 378, 383 (N.H. 1974); Haley
v. Town of Lincoln, 611 A.2d 845, 849 (R.I. 1992).(FN1) Because this is a
dissent, it is unnecessary to choose a detailed definition at this point.
The majority commits us to continue an artificial distinction that
this Court created but cannot now endorse. I would understand our inaction
if there were no alternatives that protect the legitimate interests of
municipalities and yet provide relief for persons seriously injured by
municipal negligence where tort liability is appropriate. We do a great
injustice to this injured plaintiff, and others in similar situations, by
not modernizing our law on municipal liability. I would let this action go
to the jury, and dissent from the decision to terminate it prematurely.
_______________________________________
Associate Justice
-----------------------------------------------------------------------------
Footnotes
FN1. Rhode Island has merged the public-duty rule and the
discretionary-function rule. Thus, political subdivisions are immune for
governmental actions that by their nature are not ordinarily performed by
private persons. Haley, 611 A.2d at 849.
-------------------------------------------------------------------------------
Dissenting
NOTICE: This opinion is subject to motions for reargument under
V.R.A.P. 40 as well as formal revision before publication in the Vermont
Reports. Readers are requested to notify the Reporter of Decisions,
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
any errors in order that corrections may be made before this opinion goes
to press.
No. 96-243
Donald Hillerby Supreme Court
On Appeal from
v. Chittenden Superior Court
Town of Colchester November Term, 1996
Alden T. Bryan, J.
Richard R. Goldsborough and Corinne P. Wadhams of Jarvis & Kaplan,
Burlington, for plaintiff-appellee
Richard C. Whittlesey of Roesler, Whittlesey, Meekins & Amidon,
Burlington, and Frederick S. Lane III, Of Counsel, Winooski, for
defendant-appellant
PRESENT: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
JOHNSON, J., dissenting.
It is revolting to have no better reason for a rule of law than that
so it was laid down in the time of Henry IV. It is still more
revolting if the grounds upon which it was laid down have
vanished long since, and the rule simply persists from blind
imitation of the past.
Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897).
The judicially created doctrine perpetuated by today's decision denies
plaintiff a legal remedy for his injuries solely because the manhole cover
he ran over happens to service only the Town's street and not its sewer
system. The majority feels compelled to reaffirm the doctrine, one
universally condemned for its unjust results and long-ago discarded by the
vast majority of jurisdictions, not because it makes any sense to do so,
but rather because it is longstanding and the Legislature has not acted to
abolish it.
Neither reason should constrain this Court from acting to abrogate its
own laws that no longer have a place in a legal system grounded on modern
principles of tort liability emphasizing
risk sharing and collective security. This Court, not the Legislature,
created general municipal immunity and its accompanying
governmental/proprietary distinction, and thus this Court has not only the
right but the duty to abolish these concededly unjust laws. No past
enactment of the Legislature prevents us from doing so. Rather than
explicitly or implicitly endorsing general municipal liability and the
governmental/proprietary distinction, the Legislature has enacted statutes
that, in most instances, merely sought to limit these judicially created
doctrines.
I would abolish general municipal immunity along with the
governmental/proprietary distinction, but continue to protect local
government bodies from being sued for their legislative, judicial and
high-level policy decisions, and for their failure to follow up on
regulatory duties imposed to protect the general public. Apart from the
instant case, I would implement these changes prospectively to give towns
the time to adjust their insurance coverage and the Legislature an
opportunity to address the issue of municipal immunity, in the event it
elects to do so.
I.
Municipal immunity is a common-law doctrine associated with sovereign
immunity but arising out of a 1788 English case, Russell v. Inhabitants of
Devon, 100 Eng. Rep. 359, in which the court dismissed an action by an
individual claiming that the failure of county inhabitants to repair a
bridge caused damages to his wagon. The decision, which came at a time
when government as a corporate entity was still in a nebulous state, turned
primarily on the fact that the inhabitants of the unincorporated county had
no public fund from which to pay the plaintiff. Holding that the law would
not impose the burden on individual citizens, the court opined that "it is
better that an individual should sustain an injury than that the public
should suffer an inconvenience." Id. at 362. Although Russell was quickly
distinguished into oblivion by the English courts (governmental immunity is
not the general rule in England), most American courts in the first half of
the nineteenth century, beginning with Mower v. Leiscester, 9 Mass. 247
(1812), adopted the holding in Russell, notwithstanding that the towns
involved in those suits were incorporated and had access to public funds.
See Muskopf v. Corning Hosp.
Dist., 359 P.2d 457, 459 (Cal. 1961); Molitor v. Kaneland Community Unit
Dist. No. 302, 163 N.E.2d 89, 91 (Ill. 1959); Long v. City of Weirton, 214 S.E.2d 832, 852-53 (W. Va. 1975).
But because general municipal immunity is contrary to the basic legal
concept that liability follows negligence and to the spirit of
constitutional provisions entitling every person to a legal remedy for
injuries suffered, the courts continually looked for ways to limit its
reach. Owen v. City of Independence, 445 U.S. 622, 645-46 n.28 (1980). The
principal limitation became the governmental/proprietary distinction.
Under that doctrine, municipalities are liable for activities engaged in
pursuant to their corporate or proprietary functions serving the needs of
their inhabitants, but are immune from liability for activities engaged in
pursuant to their governmental functions serving the demands of the state.
18 E. McQuillin, The Law of Municipal Corporations § 53.23, at 304-05 (3d.
ed. 1993). Although today it is easy to see why courts have been unable to
draw such lines, this distinction may have made sense in a time when
municipal corporations were seen as semi-private associations chartered by
the state to provide local inhabitants with services that no government had
previously performed. Id. § 53.02.10, at 132.
The courts justified the distinction by arguing that local governments
should not be liable for activities by which they derived no profit, that
public funds should not be diverted to compensate victims for the torts of
governmental employees, and that it was not reasonable to hold
municipalities liable for torts committed in the performance of duties
imposed by the state. See Restatement (Second) of Torts § 895C cmt. c
(1979). Each of these rationales was roundly criticized by commentators
and courts alike, who pointed out the terrible inequities and
inconsistencies that resulted from application of a doctrine the United
States Supreme Court has labeled "inherently unsound." Indian Towing Co.
v. United States, 350 U.S. 61, 65 (1955) (refusing to enter
nongovernmental/governmental "quagmire," which "has long plagued the law of
municipal corporations" and inevitably led to "chaos" and "irreconcilable
conflict"); see Long, 214 S.E.2d at 856 (describing
governmental/proprietary dichotomy as "nightmarish"); E. McQuillin, supra §
53.24.10, at 315 (attempts to fit particular conduct into one of two
categories
have led to inconsistent, artificial, and inequitable results); W. Keeton,
Prosser and Keeton on the Law of Torts § 131, at 1051-52, 1054 (5th ed.
1984) (reasons cited in support of municipal immunity and
governmental/proprietary distinction are not sound; there is no rational
way to categorize activities of government employees as "governmental" or
"proprietary" because "the distinction itself is basically unworkable"); 3
K. Davis, Administrative Law Treatise § 25.07, at 460 (1958)
(governmental/proprietary distinction "is probably one of the most
unsatisfactory known to the law, for it has caused confusion not only among
the various jurisdictions but almost always within each jurisdiction");
Annotation, Municipal Immunity from Liability for Torts, 60 A.L.R.2d 1198,
1203 (1958) (attempts to apply distinction "have led to many confusing and
contradictory decisions, evoking extensive and bitter criticism from both
the courts and legal writers").
As a result of this criticism, most jurisdictions abrogated general
municipal immunity between the late 1950s and the early 1980s, recognizing
that the community at large rather than the individual should bear the risk
of injury resulting from the negligent conduct of government employees.
See, e.g., Parish v. Pitts, 429 S.W.2d 45, 49 (Ark. 1968) (considered
conclusion of legal commentators is that burden resulting from governmental
enterprises taken for benefit of community at large should be treated as
administrative cost and spread among public receiving benefit of services);
Brinkman v. City of Indianapolis, 231 N.E.2d 169, 172 (Ind. Ct. App. 1967)
(citing trend toward spreading risk and requiring municipalities, like
private corporations to insure themselves); Williams v. City of Detroit,
111 N.W.2d 1, 23 (Mich. 1961) (abrogating municipal immunity based on law's
"transition from individualism to collective security"); Restatement, supra
§ 895C cmts. d and f (current of criticism is that losses due to injuries
resulting from tortious conduct of governmental employees should fall upon
municipality as cost of administering government and be borne by public
rather injured person); 18 E. McQuillin, supra § 53.02 at 126 and §
53.02.10, at 133. These judicial decisions were often followed by
legislative enactments addressing municipal immunity. E. McQuillin, supra
§ 53.02.10, at 133. For the most part, those few jurisdictions that
retained general municipal
immunity and the governmental/proprietary distinction abandoned any pretext
of extolling the merits of the doctrines, but rather contended, as the
majority does today, that the law should remain in place because of its
antiquity. See id. (some jurisdictions reluctantly adhered to governmental
immunity "out of sheer weight of judicial authority").
To a large extent, Vermont's history of municipal immunity and the
governmental/proprietary distinction parallels the above history.
Initially, municipal immunity seemed to have been presumed rather than
declared in Vermont. In Baxter v. Winooski Turnpike Co., 22 Vt. 114, 123
(1849), this Court took it to be "well settled" that an individual could
not maintain a tort action against a town unless a statute had conferred
the right to maintain that particular action. In support of this
common-law principle, the Court agreed with Russell "that it is better that
an individual should sustain an injury, than that the public should suffer
an inconvenience." Id. at 123; see Welsh v. Village of Rutland, 56 Vt.
228, 234 (1883) (since Russell, settled common-law principle has been that
individuals may not sustain actions against towns based on misconduct or
nonfeasance of public officers).
Thirty-four years later, in Welsh, 56 Vt. at 234, this Court declared
that the more "modern" ground supporting municipal immunity was "that these
quasi corporations are mere instrumentalities for the administration of
public government and the collection and disbursement of public moneys,
raised by taxation for public uses, and which cannot lawfully be applied to
the liquidation of damages caused by wrongful acts of their officers."
Applying this rationale, the Court concluded that general municipal
immunity should extend only "so far as the acts done are governmental and
political in their character and solely for the public benefit and
protection," but not for acts done pursuant to "private franchise powers."
Id. at 234-35. __ A. at ___; see Winn v. Village of Rutland, 52 Vt. 481,
491-92 (1880) (municipalities are not liable for damages based on conduct
arising from municipalities' state-imposed public duties, as opposed to
conduct stemming from powers given in charter to benefit municipalities'
inhabitants). Ironically, some of the language in Welsh speaks in terms of
immunizing only legislative, quasi-judicial or high-level planning and
policy decisions, 56 Vt. at 234-35, but this
reasonable approach was not followed there or in later cases. And so this
Court commenced its much-maligned adherence to the governmental/proprietary
dichotomy.
As in other jurisdictions, this Court early on encountered
"considerable difficulty . . . in drawing the line which separates
governmental activities from those of a corporate or proprietary nature."
Farmer v. Poultney School Dist., 113 Vt. 147, 150, 30 A.2d 89, 91 (1943).
Not surprisingly, our attempts to apply this doctrine have been fraught
with artificial distinctions and inconsistent and inequitable results. See
Marshall v. Town of Brattleboro, 121 Vt. 417, 423, 160 A.2d 762, 766 (1960)
(application of doctrine has produced anomalous results); Town of
Stockbridge v. State Hwy. Bd., 125 Vt. 366, 369, 216 A.2d 44, 46 (1965)
(governmental/proprietary distinction is "not clearly defined" because
basis of distinction is difficult to state and thus no established rule
exists for determination of what belongs to which class). For instance, as
our law stands now, relief may be obtained from towns (1) when the
plaintiff is injured because of ice caused by a leaking water main, but not
because of ice caused by water escaping from a fire hydrant during a
routine thawing operation conducted by town firefighters, see Marshall, 121
Vt. at 423, 160 A.2d at 766; (2) when the plaintiff is injured during the
construction of a public playground, but not during the operation of a
mechanical rope ski tow in a municipal park, compare Lemieux v. City of St.
Albans, 112 Vt. 512, 516, 28 A.2d 373, 375 (1942) with Marshall, 121 Vt. at
425, 160 A.2d at 767-68; and (3) when the plaintiff is injured while
driving over a hole caused by the town's repair of a sewer or water line,
but not while driving over a hole caused by the town's repair of a street,
see Hudson v. Town of East Montpelier, 161 Vt. 168, 178 n.3, 638 A.2d 561,
567 n.3 (1993).
Indeed, the latter anomaly is present in the instant case. The
parties debated before the superior court whether the manhole cover that
plaintiff ran over was indirectly connected to the sewer system via a storm
drain system, in which case plaintiff could seek relief from the Town, or
whether the manhole was solely associated with maintenance of the street
system, in which case the governmental/proprietary distinction would bar
plaintiff from seeking relief from the Town for his injuries. Because the
superior court determined that the manhole was connected
only to street repair, the majority's decision means that plaintiff has no
remedy against the Town. Thus, the majority reaffirms a judicially created
doctrine that makes plaintiff's right to a legal remedy dependent on the
function of the manhole that caused his injury. Cf. Whitney v. City of
Worcester, 366 N.E.2d 1210, 1215 (Mass. 1977) (person who has been run over
by city truck can hardly be expected to appreciate fine nicety of
distinction between various functions in which truck driver may have been
engaged).
In the majority's view, we must turn a blind eye toward these
inequities because our doctrine creating them has been around a long time
and has been accepted by the Legislature. The majority adopts the Town's
position that the Legislature has explicitly and implicitly endorsed
general municipal immunity and the governmental/proprietary distinction by
(1) enacting various statutes since at least 1797 that make towns liable
for only certain types of tortious acts, e.g., Vt. Rev. Stat. §§ 13-14, at
355 (1797) (towns are liable for damages resulting from their failure to
maintain roads and bridges); (2) enacting in 1959, and later amending, a
statute that waives municipal immunity to the extent that municipalities
purchase liability insurance, see 29 V.S.A. § 1403; (3) enacting in 1961 a
tort claims act that addressed state but not municipal liability, see 12
V.S.A. §§ 5601-5606; and (4) enacting in 1985 a statute providing that the
participation of towns in intermunicipality insurance agreements is not a
waiver of sovereign immunity under 29 V.S.A. § 1403, see 24 V.S.A. § 4946.
In taking this position, the majority relies on similar past decisions by
this Court declining to abrogate municipal immunity. See Lomberg v.
Crowley, 138 Vt. 420, 424, 415 A.2d 1324, 1327 (1980) (§ 1403 is clear
legislative recognition of judicially created doctrine of governmental
immunity); Roman Catholic Diocese of Vermont, Inc. v. City of Winooski
Hous. Auth., 137 Vt. 517, 519-20, 408 A.2d 649, 650-51 (1979) (accord);
Town of Milton v. Brault, 132 Vt. 377, 380, 320 A.2d 630, 632-33 (1974)
(accord); Town of South Burlington v. American Fidelity Co., 125 Vt. 348,
350, 215 A.2d 508, 510 (1965) (accord).
Notwithstanding our past disinclination to address the significant
inequities caused by general municipal immunity and the
governmental/proprietary distinction, we should do so now.
See Molitor, 163 N.E.2d at 96 (upon determining that judicially created
doctrine is unsound and unjust, court has duty to respond; courtroom doors
were closed, and likewise may be opened, without legislative help);
Enghauser Mfg. Co. v. Eriksson Eng'g, 451 N.E.2d 228, 230-31 (Ohio 1983)
(court has not only power but duty to evaluate its own doctrine of
municipal immunity in light of reason and logic, and actions, functions and
duties of municipalities in twentieth century); see also Stone v. Arizona
Highway Comm'n, 381 P.2d 107, 113 (Ariz. 1963) (reconsidering previous
decisions that deferred issue to legislature, and concluding that court had
power to abrogate judicially created immunity); Haney v. City of Lexington,
386 S.W.2d 738, 741 (Ky. 1964) (retracting earlier decision deferring to
legislature on question of whether to abrogate judicially created immunity
doctrine); Merrill v. City of Manchester, 332 A.2d 378, 382 (N.H. 1974)
(reversing previously stated position that question of expanding municipal
liability is matter for legislature); Ayala v. Philadephia Board of Pub.
Educ., 305 A.2d 877, 886 (Pa. 1973) (abrogating governmental immunity
notwithstanding suggestions in earlier decisions that legislature should
take up issue).
The Legislature has never explicitly or implicitly endorsed general
municipal immunity or the governmental/proprietary distinction. At best
from the Town's perspective, the Legislature has merely recognized the
existence of the court-originated doctrine of municipal immunity and
enacted statutes that, for the most part, limit its reach. See Molitor,
163 N.E.2d at 92 (statutes limiting reach of municipal liability do not
demonstrate legislative adoption of general municipal immunity); Davies v.
City of Bath, 364 A.2d 1269, 1271 (Me. 1976) (statutes intended to curtail
harsh effects of municipal immunity did not transform doctrine from court-
made rule to legislative policy); Kitto v. Minot Park District, 224 N.W.2d 795, 802 (N.D. 1974) (statutes restricting judicially created municipal
immunity do not demonstrate legislative approval of doctrine). In contrast
to its comprehensive treatment of state sovereign immunity in the Tort
Claims Act, 12 V.S.A. §§ 5601-5606, the Legislature's sporadic and
patchwork response to the judicial doctrine of municipal immunity, designed
for the most part to alleviate the doctrine's harsh results, does not
demonstrate its endorsement of general municipal immunity. See Parish,
429 S.W.2d at 48 (only comprehensive enactment encompassing entire field
would warrant inference that legislature had adopted judicially created
doctrine of municipal liability); Muskopf, 359 P.2d at 461 (absent
comprehensive legislative enactment concerning municipal immunity, as
opposed to sporadic statutes affecting doctrine, court is not precluded
from abrogating judicially created doctrine). Ironically, it is possible
that the Legislature has not acted to abolish or revamp municipal immunity
and the accompanying governmental/proprietary distinction for reasons
similar to those cited by the majority -- a misplaced deference to a
longstanding court doctrine. See Haney, 386 S.W.2d at 741 (legislature
might expect courts themselves to correct unjust rule that was judicially
created); Jackson v. City of Florence, 320 So. 2d 68, 73 (Ala. 1975)
(accord); Merrill, 332 A.2d at 382 (accord).
In addition to its belief that the Legislature has endorsed general
municipal immunity and the governmental/proprietary distinction, the
majority states that the Legislature is better suited to consider the
complex public policy issues surrounding municipal immunity. This may be
true, but it should not preclude this Court from abolishing its own
universally condemned doctrine while affording the Legislature time to step
in and address the subject, if it so chooses. See Long, 214 S.E.2d at 859
(although it would be preferable for legislature to speak comprehensively
on subject, court should not perpetuate bad law of judicial origin pending
fortuity of legislative action). The case law demonstrates that for
whatever reasons -- perhaps the lack of a powerful or unified voice from
persons who have been injured through the negligence of government
employees -- legislatures in most jurisdictions have not comprehensively
addressed issues surrounding municipal immunity until the courts acted
first. See E. McQuillin, supra § 53.02.10, at 133; W. Keeton, supra § 131
n.40, at 1055 (judicial decisions initiated shifts from governmental
immunity). I suspect that in Vermont, as elsewhere, the Legislature will
not act until this Court acts.
II.
While it is clear that general municipal immunity under the
governmental/proprietary dichotomy is bad law that should be abolished, the
more difficult question is what, if anything,
should remain of municipal immunity? Even those courts declaring that they
were abrogating municipal immunity stated that municipalities would
continue to be immune for their acts or omissions connected with
legislative, judicial, and high-level executive policy decisions. W.
Keeton, supra § 131, at 1052; e.g., Nieting, 235 N.W.2d at 603; Merrill,
332 A.2d at 383; Enghauser, 451 N.E.2d at 232; McCall v. Batson, 329 S.E.2d 741 742 (S.C. 1985). Eventually, in some jurisdictions immunity became
dependent on whether the government's acts or omissions were deemed
discretionary rather than ministerial, or planning rather than operational,
or whether they were analogous to the duties of private individuals rather
than uniquely governmental in nature. See E. McQuillin, supra §§ 53.04.10
and 53.04.20, at 156-57 and 162-63. Sometimes these new dichotomies
resulted in the courts creating, over time, governmental immunities more
sweeping than when the old governmental/proprietary distinction had been in
place. E.g., Gas Service Co. v. City of London, 687 S.W.2d 144, 147 (Ky.
1985) (municipal immunity was abrogated fifteen years earlier as
"judicially created monstrosity," but gradually reestablished itself under
governmental/proprietary distinction to point where it exceeded its
original scope).
Rather than focus on formalistic labels that merely serve as
conclusions reached after consideration of the relevant factors, see
Hudson, 161 Vt. at 171, 638 A.2d at 563, we should examine the policy
considerations surrounding the issue of governmental immunity. Each of the
immunity tests, whether the emphasis is on the discretion of the actor, the
level of the decision, or the nature of the conduct, is related to the
others and revolves around the same public policy considerations, which in
turn, stem primarily from separation-of-powers concerns. To preserve
separate and coequal branches of government that best serve the public's
interests, government officials must feel that they can use free and
independent judgment, without the threat of liability hanging over them,
regarding decisions involving the balancing of priorities or the allocation
of resources. See id. at 173-74, 638 A.2d at 564; Peavler v. Monroe County
Bd. of Comm'rs, 528 N.E.2d 40, 44-45 (Ind. 1988) (separation-of-powers
doctrine forecloses courts from reviewing political, social and economic
actions within province of coordinate branches of government;
courts are ill-equipped to review, in context of tort law, government's
policy decisions involving assessment of competing priorities and weighing
of budgetary considerations or allocation of scarce resources); E.
McQuillin, supra §§ 53.04.10 and 53.04.20, at 156-57 and 162 (tort law does
not provide adequate framework to analyze governmental actions where real
questions are not negligence, due care, or reasonableness, but rather
social wisdom, political practicability, and economic expediency; decisions
requiring balancing of priorities and weighing of budgetary considerations
are kinds of political acts that courts ought not to second-guess and that
are not readily judged by traditional tort standards).
The goal should be to place municipalities on an equal footing with
private corporate entities with respect to responsibility for injuries
caused by the common torts of their employees, but to shield them from
liability for acts and omissions that are policy-based or that are
adjudicative, legislative, or regulatory in nature. See Gorrell v. City of
Parsons, 576 P.2d 616, 620 (Kan. 1978). The American Law Institute
summarizes this position in Restatement (Second) of Torts § 895C(2), which
provides that local government entities are immune from tort liability only
for their acts or omissions "constituting (a) the exercise of a legislative
or judicial function, and (b) the exercise of an administrative function
involving the determination of fundamental governmental policy."
The Restatement also recognizes that some courts have considered
quasi-judicial or quasi-legislative regulatory and enforcement activities
to fall within § 895C. Restatement, supra § 895C cmt. g; see, e.g., Bolden
v. City of Covington, 803 S.W.2d 577, 581 (Ky. 1991) (municipality not
liable for failure to enforce fire code safety violation, which is
quasi-judicial regulatory enforcement activity); Debry v. Noble, 889 P.2d 428, 441 (Utah 1995) (municipality not liable for injuries allegedly caused
by licensing or inspection decisions). These courts seek to protect
municipalities that have taken on a substantial number of regulatory duties
for the protection of the general public from being sued for failing (by
not exercising those self-imposed or state-imposed duties) to prevent
persons from injuring themselves or being injured by others. See Gas
Service, 687 S.W.2d at 149. Our case law in analogous contexts supports
this position.
See Andrew v. State, 165 Vt. 252, 258-60, 682 A.2d 1387, 1391-92 (1996)
(state not liable under tort claims act's private analog test for its
alleged negligent inspection of private workplace); Johnson v. State, Vt.
___, ___, 682 A.2d 961, 963 (1996) (state agency not liable to purchasers
of motel based on complaint alleging negligent issuance of lodging license
to prior owners); Corbin v. Buchanan, 163 Vt. 141, 144, 657 A.2d 170, 172
(1994) (no private cause of action exists against municipality for failing
to enforce fire code regulation aimed at protection of general public);
Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 489, 622 A.2d 495, 499-500
(1993) (state regulatory agency not liable under tort claims act's private
analog test for allegedly failing to warn plaintiff of complaints filed
with agency regarding plaintiff's agent).
In light of the prior discussion, I would abrogate general municipal
immunity and the governmental/proprietary distinction, and adopt
Restatement § 895C in its place. In doing so, I would acknowledge our
continued support for the position stated in Corbin (and analogous case law
construing the private analog test) that government entities are not liable
for their failure to enforce regulations adopted to protect the public at
large.(FN1) I would not, however, follow the
superior court's lead and adopt the tort claims act's private analog test
because that test, which has not proven to be a model of clarity itself, is
part of a comprehensive statute that includes several limitations and
exceptions. Inconsistencies and inequities could result from following the
test in the context of municipal immunity cases without applying the
accompanying statutorily imposed limitations and exceptions.
Without question, the Restatement approach would not provide the Town
with immunity in the present case, which concerns a common tort scenario
that implicates neither legislative or judicial functions, nor high-level
policy decisions or regulatory activities. Of course, § 895C's general
principles would have to be refined in future cases by examining and
considering various fact patterns while keeping in mind the underlying
principles that support limited exceptions to general municipal liability.
Although it will not be easy to set forth on a case-by-case basis a
principled and cohesive doctrine that is both fair and consistent, it will
be far better than allowing to stand a doctrine acknowledged to be
inequitable and inconsistent. Because of its fact-finding power and its
ability to weigh social and economic consequences outside a particular
adjudicative setting, the Legislature may well be more suited than this
Court to address comprehensively issues surrounding municipal immunity;
however, this fact should not, and does not, prevent us from acting to rid
ourselves of an unfair law that we created.
We could defer to the Legislature's ultimate authority in this area by
abrogating general municipal immunity and abolishing the
governmental/proprietary distinction prospectively, as many other courts
have done, to allow municipalities time to adjust their insurance coverage
and to allow the Legislature an opportunity either to enact comprehensive
legislation on municipal immunity, to include municipalities within the
Tort Claims Act, or to impose other legislative limitations on municipal
liability, if it so chooses. See Becker v. Beaudoin, 261 A.2d 896, 901
(R.I. 1970) (while courts need not wait on legislature to repudiate unsound
judicial doctrine, they should provide legislature opportunity to weigh in
on issue more suited to its control); Restatement, supra § 895B cmt. f
(stating types of legislatively imposed limitations on governmental
liability, including damage limits and notice restrictions).
The courts that have abrogated general municipal immunity have
differed on whether to apply their holding prospectively or retroactively.
Some courts have followed the general rule of retrospective application,
e.g., Stone, 381 P.2d at 112; others have taken a "quasi-retroactive"
approach that applies their holding only in pending cases in which the
municipality is insured for damages stemming from the alleged tort, e.g.,
McCall, 329 S.E.2d at 742-43; perhaps the majority of jurisdictions have
applied their holding "quasi-prospectively" -- after a future date except
for the case at hand, e.g., Evans v. Board of County Comm'rs, 482 P.2d 968,
972 (Colo. 1971); and, finally, other courts have taken a strict
prospective approach, not even affording relief to the plaintiffs that
brought the case, e.g., Becker, 261 A.2d at 902-03. I would favor a
quasi-prospective approach that would afford relief to the instant
plaintiff, but otherwise apply our holding from some future date, say July
1, 1998, after next year's legislative session. This would allow the towns
and the Legislature to react to the change in law, but would afford relief
to the party challenging the current law.
III.
There can be no doubt that the effect of governmental immunity is "to
sacrifice the injured citizen to the benefit of the public treasury."
Roman Catholic Diocese, 137 Vt. at 519, 408 A.2d at 650. This result is
not acceptable under modern tort principles favoring collective security
unless there are sound public policy reasons to support it. That is not
the case under the laws we currently apply to determine whether municipal
immunity exists. We have a responsibility to change those laws and to
attempt to rectify the gross inequities that they impose on the people of
this state. I would affirm the superior court's decision to allow
plaintiff to proceed against the Town, but rely on the grounds stated
herein. See Hudson, 161 Vt. at 170, 638 A.2d at 563 (Supreme Court need
not adopt trial court's rationale in affirming its judgment);
Shields v. Gerhart, 155 Vt. 141, 149 n.8, 582 A.2d 153, 158 n.8 (Supreme
Court will reach issues beyond certified questions when they are fairly
raised by order appealed from).
__________________________________
Associate Justice
--------------------------------------------------------------------------------
Footnotes
FN1. Justice Dooley's dissent misstates my position. It is simply
not true that, like the majority, I have chosen merely to point out the
deficiencies in possible approaches to municipal immunity and leave it for
the Legislature to act. I have attempted to analyze the public policy
considerations underlying municipal immunity and, based on those
considerations, have stated that I would adopt the American Law Institute's
restatement of the law in this area, hardly a radical stand creating a
crisis situation. I have not suggested, as Justice Dooley indicates, that
municipalities should be liable whenever the appropriate response of a
government agent could have prevented a personal injury or adverse health
consequence. Indeed, as I state above, I continue to support this Court's
position in Corbin v. Buchanan, 163 Vt. 141, 144, 657 A.2d 170, 172 (1970)
that government entities are generally not liable for injuries that they
allegedly could have prevented by enforcing regulations aimed at protecting
the public at large. Regardless of whether Corbin and other cases recently
decided by this Court fit within the sphere of the public-duty doctrine,
they are consistent with the Restatement's approach. See Andrew v. State,
165 Vt. 252, 258-60, 682 A.2d 1387, 1391-92 (1996) (state immune from suit
based on negligent inspection of private workplace); Johnson v. State, ___
Vt. ___, ___, 682 A.2d 961, 963 (1996) (state immune from suit based on
negligent issuance of lodging license); Corbin, 163 Vt. at 144, 657 A.2d at
172 (municipality immune from suit based on failure to enforce fire code
regulation); Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 489, 622 A.2d 495, 499-500 (1993) (state immune from suit based on failure to provide
notice of complaints filed with state agency). In short, both Justice
Dooley and I have stated what we would offer in place of general municipal
immunity and have acknowledged that the Legislature is free to arrive at
its own solution; the difference, in my view, is that I would start from a
framework of principles, while Justice Dooley would simply adopt, with only
a promise of future clarification, formalistic labels that are susceptible
to a wide variety of interpretations depending on how broadly they are
construed.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
