Brueckner v. Norwich University

Brueckner v. Norwich University  (97-396); 169 Vt. 118; 730 A.2d 1086

[Opinion Filed 5-Feb-1999]
[Motion for Reargument Denied 10-Mar-1999]

       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. 97-396
	

William C. Brueckner, Jr.	               Supreme Court
 
                                               On Appeal from
     v.		                               Washington Superior Court

Norwich University	                       March Term, 1998


Alan W. Cheever, J.

       Richard T. Cassidy, Richard H. Thomas and Karen Stackpole of Hoff
  Curtis Pacht Cassidy & Frame, P.C., Burlington, for Plaintiff-Appellee.

       Allan R. Keyes and John A. Serafino of Ryan Smith & Carbine, Ltd.,
  Rutland, and Arthur Makadon, Walter M. Einhorn, Jr., and Courtney L. Yeakel
  of Ballard Spahr Andrews & Ingersoll, Philadelphia, Pennsylvania, for
  Defendant-Appellant.


PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       AMESTOY, C.J.  Norwich University appeals from the denial of its
  post-trial motions for  judgment as a matter of law, or in the alternative,
  for a new trial, following a jury verdict finding it  liable and awarding
  compensatory and punitive damages on several tort claims arising from
  incidents  of hazing suffered by plaintiff while a freshman.  Norwich
  University raises numerous issues with  respect to its liability, the award
  of lost earnings damages, and the award of punitive damages.  We  affirm
  the court's rulings on liability and lost earnings damages, but reverse the
  award of punitive  damages because there was an insufficient showing of
  malice to support the award. 


       Viewing the evidence in the light most favorable to the plaintiff, as
  we must on the appeal  of both a motion for judgment as a matter of law,
  see Silva v. Stevens, 156 Vt. 94, 101-102, 589 A.2d 852, 856 (1991), and a
  motion for a new trial, see Lent v. Huntoon, 143 Vt. 539, 522, 470 A.2d 1162, 1170 (1983), the facts are as follows.  In August 1990, plaintiff
  William C. Brueckner, Jr.  arrived as an incoming freshman, or "rook," at
  the Military College of Vermont of Norwich

 

  University (Norwich).  At the time, he was a twenty-four year old,
  five-year veteran of the United  States Navy, having been awarded a
  four-year naval ROTC scholarship in the amount of $80,000  to attend
  Norwich.  Under the authority and training of Norwich and its leadership,
  certain  upperclassmen were appointed by the University to indoctrinate and
  orient the incoming rooks,  including plaintiff.  These upperclassmen were
  known as the "cadre."  

       Plaintiff attended Norwich for only sixteen days as a result of his
  subjection to, and  observation of, numerous incidents of hazing.  In those
  sixteen days, plaintiff withstood a regular  barrage of obscene, offensive
  and harassing language.  He was interrogated at meals and thereby 
  prevented from eating.  He was ordered to disrobe in front of a female
  student, although he did not  follow the order.  He was prevented from
  studying during some of the assigned study periods and,  on several
  occasions, cadre members destroyed his academic work with water.  Members
  of the  cadre also forced him to squat in the hall as they squirted him
  with water.  He was forced to  participate in unauthorized calisthenic
  sessions, despite an injured shoulder.  He was slammed into  a wall by a
  cadre member riding a skateboard in the hall.  After cadre members
  vandalized his room  by dumping water in it, plaintiff was ordered to clean
  up the mess.  On two occasions, plaintiff was  prevented from attending
  mandatory ROTC study hall on time, leading him to believe his  scholarship
  status was endangered.  One morning, as plaintiff walked along the corridor
  in the  dormitory, he encountered two cadre members, one of whom asked
  plaintiff where plaintiff's name  tag was.  When plaintiff responded that
  he had forgotten it, one cadre member hit plaintiff hard in  the shoulder,
  which was injured and in a sling.  After the other cadre member told the
  hitter to stop,  the hitter struck plaintiff again in the same shoulder,
  causing pain and bruises.  After reporting the  hazing problems to Norwich
  officials, plaintiff left the campus, believing that his situation would 
  not improve.  He returned briefly once more, then withdrew from Norwich,
  his scholarship  terminated.  Norwich investigated plaintiff's complaints
  and, as a result, several cadets were  disciplined.


       Plaintiff brought this action against Norwich for assault and battery,
  negligent infliction of  emotional distress, intentional infliction of
  emotional distress and negligent supervision.  By means 

 

  of special interrogatories, the jury found Norwich liable on all counts and
  awarded plaintiff $100,000  for emotional distress, $8,600 for medical
  expenses, $80,000 for the lost four-year college  scholarship and $300,000
  to cover lost earnings (past and future).  The jury also awarded $1.75 
  million in punitive damages.  The court denied Norwich's post-trial motions
  for judgment as a matter  of law and for a new trial.  Norwich appeals.

                           I. Norwich's Liability

       Norwich challenges the court's denial of its motion for judgment as a
  matter of law on each  of plaintiff's theories of liability.  We find no
  error.

       Judgment as a matter of law may be granted where "there is no legally
  sufficient evidentiary  basis for a reasonable jury to find for [the
  non-moving] party."  V.R.C.P. 50(a)(1), (b).  Under the  rule, a trial
  court considers the evidence "in the light most favorable to the non-moving
  party,  excluding the effect of any modifying evidence."  Lussier v. North
  Troy Eng'g Co., 149 Vt. 486,  490, 544 A.2d 1173, 1176 (1988).  If evidence
  exists that may fairly and reasonably support all  elements of the
  non-moving party's claim, judgment as a matter of law is improper.  On
  appeal from  a denial or grant of judgment as a matter of law, this Court
  also views the evidence in the light most  favorable to the non-moving
  party and excludes the effects of any modifying evidence.  See Center  v.
  Mad River Corp., 151 Vt. 408, 413, 561 A.2d 90, 93 (1989).  The question is
  whether the result  reached by the jury is "sound in law on the evidence
  produced."  Kinzer v. Degler Corp., 145 Vt.  410, 412, 491 A.2d 1017, 1018
  (1985).

          A. Vicarious Liability -- Assault and Battery, Intentional
               and Negligent Infliction of Emotional Distress
	
                           i. Vicarious Liability


       Norwich claims error in the court's entry of judgment on the claims of
  assault and battery,  as well as negligent and intentional infliction of
  emotional distress, because those claims are  premised on acts of the cadre
  members that were not authorized and did not occur within the scope  of
  their employment.  Norwich claims it should not be held vicariously liable
  for the cadre's hazing. 

   

  Under the settled doctrine of respondeat superior, an employer or master is
  held vicariously  liable for the tortious acts of an employee or servant
  committed during, or incidental to, the scope  of employment.  See Anderson
  v. Toombs, 119 Vt. 40, 44-45, 117 A.2d 250, 253 (1955); Poplaski  v.
  Lamphere, 152 Vt. 251, 257, 565 A.2d 1326,1330 (1989).  Norwich concedes
  that cadre members  acted as its agents in "indoctrinating and orienting"
  rooks such as plaintiff.  Norwich claims,  however, that the tortious acts
  complained of were not committed within the cadre members' "scope  of
  employment."  Whether a given act is committed within the scope of
  employment is properly  determined by the finder of fact after
  consideration of the attendant facts and circumstances of the  particular
  case.  See Anderson, 119 Vt. at 48, 117 A.2d  at 254.  

       To be within the scope of employment, conduct must be of the same
  general nature as, or  incidental to, the authorized conduct.  See
  Restatement (Second) of Agency § 229(l) (1958).   Conduct of the servant
  falls within the scope of employment if: (a) it is of the kind the servant
  is  employed to perform; (b) it occurs substantially within the authorized
  time and space limits; (c) it  is actuated, at least in part, by a purpose
  to serve the master; and (d) in a case in which  the force is 
  intentionally used by the servant against another, it is not unexpectable
  by the master.  See id. §  228(1).  Conduct of a servant is not within the
  scope of employment if it is different in kind from  that authorized, far
  beyond the authorized time and space limits, or too little actuated by a
  purpose  to serve the master.  See id. § 228(2).  

       Here, the cadre were authorized by Norwich to indoctrinate and orient
  rooks through  activities performed at various times of the day and night. 
  A jury could reasonably find members  of the cadre were acting in
  furtherance of their general duties to indoctrinate and orient the rooks
  and  thus within their "scope of employment" at the time of the hazing
  incidents of which plaintiff  complains.  


       Norwich argues that, because it had adopted policies against hazing
  and had instructed the  cadre to refrain from mistreating the rooks, the
  tortious conduct was outside the scope of  employment.  Norwich contends
  that McHugh v. University of Vermont, 966 F.2d 67 (2d Cir. 1992), 

 

  supports this result.  In McHugh, the Second Circuit Court of Appeals,
  applying Vermont law,  concluded that an employee who sexually and
  religiously harassed a fellow employee was not acting  within the scope of
  employment.  There, a major in the United States Army and an employee at
  the  University of Vermont's Department of Military Studies, told
  plaintiff, a female secretary, that his  definition of a "secretary" was a
  "paid whore."  The employee repeatedly joked about plaintiff  contracting
  AIDS, stating that he hoped she would be able to avoid infection.  The
  employee also  told plaintiff that it was "a good day to watch Catholic
  babies burn."  Id. at 68-69.   The court  rejected the argument that the
  employee's conduct was within his scope of employment because it  was
  within that scope for him to talk with the plaintiff, either to give
  instructions or to avoid the  awkwardness of silence at work.  It held: "It
  can hardly be contended that [the employee's] alleged  conduct furthered
  the business" of his employer.  Id. at 75.  

       The same cannot be said of this case, where the actions involved in
  hazing rooks may fairly  be seen as qualitatively similar to the
  indoctrination and orientation with which the cadre members  were charged. 
  Indeed, Norwich described some of the acts of which plaintiff complained,
  such as  forced calisthenics and questioning at mealtime, as not far
  removed from the official system of  military discipline and training which
  recruits are expected to endure.  The evidence supported the  jury's
  conclusion that the cadre members were acting within the scope of
  employment.  See Belanger  v. Village Pub I, Inc., 603 A.2d 1173, 1179
  (Conn. App. 1993) (under doctrine of respondeat  superior, employee's
  failure to follow employer's orders would not relieve employer of liability
  for  employee's tortious conduct if employee acted with apparent authority
  in furtherance of employer's  business).

                           ii. Assault and Battery


       Norwich next claims that there was insufficient evidence to support
  plaintiff's claim for  assault and battery and thus, that the court erred
  when it denied Norwich judgment as a matter of  law.  Norwich concedes that
  an assault and battery occurred, but claims that vicarious liability cannot 
  be established because insufficient evidence exists to identify the
  assailant as a member of the cadre.  At 

 

  trial, plaintiff could not recall whether the person who had struck him in
  the shoulder was a member  of the cadre, but testified that he knew the
  assailant was not a rook and thought he was a member  of the senior class. 
  Plaintiff's counsel stressed in closing argument that, although plaintiff's
  memory  failed him at trial, a report prepared in connection with
  plaintiff's case contained his earlier statement  to his roommate that the
  hitter had been a cadre member.  Norwich claims that the identification in 
  the report is triple hearsay and amounts to "conjecture, surmise or
  suspicion," (quoting Burlson v.  Caledonia Sand & Gravel Co., 127 Vt. 594,
  597, 255 A.2d 680, 682 (1969)), which is inadequate  as a matter of law to
  support the jury's verdict.

       There is no absolute prohibition against the use of admitted hearsay
  evidence to support a  jury's verdict.  See In re M.P., 133 Vt. 144, 146,
  333 A.2d 116, 118 (1975).  Particularly in light of  the fact that Norwich
  commissioned the report and moved for its introduction at trial, it cannot 
  complain of the jury's consideration of a statement recorded therein. 
  Notwithstanding plaintiff's  memory lapse at trial, the jury reasonably
  could have concluded that plaintiff's earlier statement  accurately
  recorded the attacker's identity.  The court correctly denied the motion
  for judgment as  a matter of law.

               iii. Negligent Infliction of Emotional Distress


       Norwich claims that it was error for the court to uphold the jury's
  finding of liability for the  claim of negligent infliction of emotional
  distress.  To establish a claim for negligent infliction of  emotional
  distress, a plaintiff must make a threshold showing that he or someone
  close to him faced  physical peril.  See Francis v. Gaylord Container
  Corp., 837 F. Supp. 858, 864 (S.D. Ohio), aff'd,  9 F.3d 107 (6th Cir.
  1993).  The prerequisites for establishing a claim differ according to
  whether  plaintiff suffered a physical impact from an external force.  See
  Kingston Square Tenants Ass'n v.  Tuskegee Gardens, Ltd., 792 F. Supp. 1566, 1576-77 (S.D.Fla. 1992).  If there has been an impact,  plaintiff may
  recover for emotional distress stemming from the incident during which the
  impact  occurred.  See id.  If plaintiff has not suffered an impact,
  plaintiff must show that: 1) he was within  the "zone of danger" of an act
  negligently directed at him by defendant, 2) he was subjected to a 

 

  reasonable fear of immediate personal injury, and 3) he in fact suffered
  substantial bodily injury or  illness as a result.  See Vaillancourt v.
  Medical Ctr. Hosp. of Vermont, 139 Vt. 138, 143, 425 A.2d 92, 95 (1980).  

       In this case, plaintiff withstood at least two incidents of physical
  impact by a cadre member.  Plaintiff testified about the fear of personal
  injury he felt in connection with a cadre member's  careening down the
  dormitory hallway on a skateboard and "plowing" into rooks.  On one such 
  occasion, the cadre member ran into plaintiff.  Plaintiff also testified as
  to the fear and apprehension  he felt when struck twice in the shoulder he
  had previously injured.  Plaintiff's doctor testified that  plaintiff
  suffered from post-traumatic-stress disorder and a major depressive
  disorder as a result of  his perception that he was at risk of serious
  physical injury during the incidents just described.  The  evidence at
  trial fairly and reasonably supported the jury's verdict on negligent
  infliction of  emotional distress.(FN1)

                B. Direct Liability -- Negligent Supervision


       Norwich argues it was not liable to plaintiff for negligent
  supervision of the students in the  cadre because it owed no duty of care
  to plaintiff.  Norwich's claim is premised on the fact that the  hazing in
  question came at the hands of fellow students.  It cites Smith v. Day, 148
  Vt. 595, 599, 538 A.2d 157, 159 (1987), for the proposition that Norwich
  owed no duty to control the actions of  Norwich students for the protection
  of plaintiff.  We disagree because, unlike the Smith case, 

 

  Norwich specifically charged cadre members with "indoctrinating and
  orienting" plaintiff.

       A principal may, in addition to being found vicariously liable for
  tortious conduct of its  agents, be found directly liable for damages
  resulting from negligent supervision of its agents'  activities.  See
  Trahan-Laroche v. Lockheed Sanders, Inc., 657 A.2d 417, 419 (N.H. 1995);
  Mainella  v. Staff Builders Indus. Servs., Inc., 608 A.2d 1141, 1145 (R.I.
  1992) (direct liability for negligent  supervision of employees or agents
  constitutes an entirely separate and distinct type of liability from 
  vicarious liability under respondeat superior); Restatement (Second) of
  Agency  § 213.  Norwich's  claim that it owed no duty to plaintiff under
  the circumstances of this case fails under these  established principles. 
  Under the Restatement, "[a] person conducting an activity through servants 
  or other agents is subject to liability for harm resulting from his conduct
  if he is negligent or reckless  . . . in the supervision of the activity." 
  Id.  According to the Restatement's drafters, § 213 "is a  special
  application of the general rules stated in the Restatement of Torts . . . . 
  Liability exists only  if all the requirements of an action of tort for
  negligence exist."  Id. cmt. a.  In this instance, the cadre  members, and
  by extension Norwich, owed plaintiff at minimum the duty to use reasonable
  care to  avoid harming him.  "One who engages in an enterprise is under a
  duty to anticipate and to guard  against the human traits of his employees
  which, unless regulated, are likely to harm others.  He is  likewise
  required to make such reasonable regulations as the size and complexity of
  his business may  require."  Id. cmt. g.  Norwich, therefore, owed
  plaintiff a duty of reasonable care in the control and  supervision of the
  cadre.

       In the instant case, the court correctly instructed the jury that
  Norwich owed plaintiff a duty  to use reasonable care in avoiding harm to
  plaintiff, and the evidence in the record fairly and  reasonably supports
  the jury's finding of liability.

            II.  Actual Damages -- The Jury's Lost Earnings Award


       Norwich argues next that the trial court erred in failing to vacate
  the jury's award of  $300,000 in lost earning capacity, and that the expert
  testimony offered to support the award was  based on speculation and was
  therefore irrelevant and should not have been admitted. When  reviewing a
  jury's

 

  award of damages, this Court must affirm the award "unless it appears to be
  clearly erroneous when  the supporting evidence is viewed in the light most
  favorable to the prevailing party and any  modifying evidence is
  disregarded."  Meadowbrook Condo. Ass'n v. South Burlington Realty Corp., 
  152 Vt. 16, 26, 565 A.2d 238, 244 (1989).  Specifically, when a party
  appeals a court's refusal to set  aside a verdict and grant a new trial on
  the grounds that the jury's verdict is not supported by the  evidence, "we
  need only determine `whether the jury could reasonably have found its
  verdict for  damages on the evidence before it.'" Lorrain v. Ryan, 160 Vt.
  202, 209, 628 A.2d 543, 548 (1993)  (quoting Brunelle v. Coffey, 128 Vt.
  367, 370, 264 A.2d 782, 784 (1970)).  

       Viewed in the light most favorable to plaintiff, the evidence before
  the jury concerning lost  earnings consisted of the following.  Plaintiff
  graduated from high school and spent five years as an  enlisted officer in
  the Navy.  He consistently received high ratings by his superior officers,
  and he  improved his aptitude examination rating during his time in the
  Navy.  In 1990, his application for  admission into the civil engineering
  program at Norwich was accepted, and he was granted a full  four-year ROTC
  scholarship.  Although plaintiff remained at Norwich only long enough to
  take one  examination in the fall of 1990, he performed satisfactorily.  As
  a result of hazing, plaintiff withdrew  from Norwich and thereafter worked
  a series of relatively low-paying jobs, culminating with his  employment as
  a postal worker at the time of trial.  He testified that he wished
  ultimately to  complete college but, due to work and family pressures
  existing since his departure from Norwich,  he had not been able to resume
  college studies other than to take one night course at a community 
  college.  At the time of trial, plaintiff's pursuit of a college education
  had been delayed more than  six years as a result of his experiences at
  Norwich. 


       In calculating plaintiff's lost earnings, his expert economist
  analyzed the difference in  earnings over a lifetime between a high school
  graduate and a college graduate.  Using U.S. Census  Bureau data, and
  discounting the figures for present value, he determined that if plaintiff
  were a  college graduate he would earn between $600,000 and $932,593 more
  over the course of his working  life than he would as a high school
  graduate.  The jury awarded plaintiff $300,000. 

 


       The difficulty of precise computation of the losses plaintiff has and
  will continue to incur  as a result of his premature departure from Norwich
  is not a ground to reverse a lost earnings award.  See Imported Car Ctr.,
  Inc. v. Billings, 163 Vt. 76, 82, 653 A.2d 765, 770 (1994) (upholding award 
  of damages where plaintiff continued to incur expenses throughout trial and
  exact amount of  damages could not be ascertained).  Nor do we reverse such
  an award where a plaintiff has not yet  acquired an earning capacity.  See
  Melford v. S.V. Rossi Constr. Co., 131 Vt. 219, 223-24, 303 A.2d 146, 148
  (1973) (holding that a person is not deprived of right to recover damages
  for loss of earning  capacity in future, by fact that at time of injury he
  is not engaged in any particular employment). 
 
       There was ample evidence before the jury to support its award of lost
  earning capacity.  Based upon the evidence presented at trial, the jury
  could have considered and weighed such issues  as whether and when
  plaintiff would return to college, the impact of the six years that had
  elapsed  since his departure from Norwich, as well as his likelihood of
  successful completion if he returned  to college.   Applying its assessment
  of these and other variables to the testimony of the expert, the  jury
  could reasonably have found that plaintiff lost or would lose approximately
  one-third of a  college-educated working life as a result of his withdrawal
  from Norwich and subsequent inability  to resume a college education; the
  jury's award of $300,000 for past and future lost earning capacity  -  less
  than one-third of the total amount the expert testified plaintiff would
  lose over his working  lifetime -  is reasonably supported by the evidence.   

                            III. Punitive Damages


       The purpose of punitive damages is to "punish conduct which is morally
  culpable . . . [and]  to deter a wrongdoer . . . from repetitions of the
  same or similar actions."  Coty v. Ramsey Assocs.,  Inc., 149 Vt. 451, 467,
  546 A.2d 196, 207 (1988) (quoting Davis v. Williams, 402 N.Y.S.2d 92, 94 
  (N.Y. Civ. Ct. 1977)).  Punitive damages are permitted "[w]here the
  defendant's wrongdoing has  been intentional and deliberate, and has the
  character of outrage frequently associated with crime."  W. Keeton et al.,
  Prosser and Keeton on the Law of Torts § 2, at 9 (5th Ed. 1984).  It is not
  enough  to show that defendant's acts are wrongful or unlawful - there must
  be proof of defendant's "bad 

 

  spirit and wrong intention."  Agency of Natural Resources v. Riendeau, 157
  Vt. 615, 624-25, 603 A.2d 360, 365 (1991).  Consistent with the view that
  punitive damages are to be applied to deter and  to punish "truly
  reprehensible conduct," Tuttle v. Raymond, 494 A.2d 1353, 1361 (Me. 1985), 
  Vermont has long required a plaintiff to demonstrate that a defendant acted
  with malice in order to  recover punitive damages.  See Sparrow v. Vermont
  Savings Bank, 95 Vt. 29, 33, 112 A. 205, 207  (1921).

       The Vermont test for the malice necessary to establish liability was
  first announced in 1921  in Sparrow, and most notably stated in Shortle v.
  Central Vermont Public Service Corp., 137 Vt. 32,  33, 399 A.2d 517, 518
  (1979): "It must be shown that there was actual malice.  This may be shown 
  by conduct manifesting personal ill will or carried out under circumstances
  evidencing insult or  oppression, or even by conduct showing a reckless or
  wanton disregard of one's rights."  This test  has been cited frequently
  since.  See, e.g, Murray v. J & B. Int'l Trucks, Inc., 146 Vt. 458, 465,
  508 A.2d 1351, 1355 (1986); Bruntaeger v. Zeller, 147 Vt. 247, 252-53, 515 A.2d 123, 127 (1986); Ryan  v. Herald Ass'n, Inc., 152 Vt. 275, 281, 566 A.2d 1316, 1320 (1989); Meadowbrook Condominium  Ass'n, 152 Vt. at 28, 565 A.2d  at 245; Crump v. P & C Food Markets, Inc., 154 Vt. 284, 298, 576 A.2d 441, 449 (1990); Wheeler v. Central Vt. Med. Ctr., Inc., 155 Vt. 85, 96,
  582 A.2d 165, 171  (1990); Riendeau, 157 Vt. at 624, 603 A.2d  at 365.


       We have found punitive damages inappropriate where the evidence shows
  only that the   defendant engaged in wrongful conduct.  See Bruntaeger, 147
  Vt. at 254, 515 A.2d  at 127 (punitive  damages properly denied because
  "defendant's conduct, however wrongful, was not malicious");  Meadowbrook,
  152 Vt. at 28, 565 A.2d  at 245 (after trial court assessed punitive damages
  because  of defendant's "willful violation" of consumer protection statute,
  Supreme Court reversed because  "[d]efendant's conduct . . . however
  wrongful, did not evince the degree of malice required").  In  Riendeau,
  the trial court assessed civil and punitive damages because the defendants
  in that case  "knowingly and willfully discharged substances into waters of
  the State."  157 Vt. at 623-24, 603 A.2d  at 361-62.  This Court remanded
  for further proceedings on punitive damages because "we 

 

  believe that there must be some showing of bad motive to make knowing and
  intentional conduct  malicious."  Id. at 625, 603 A.2d  at 365.(FN2)

       Here, plaintiff's theory of Norwich's liability for punitive damages
  was predicated not upon  a showing of defendant's "bad motive" in engaging
  in intentional misconduct, but instead upon  "Norwich's conscious choice to
  remain ignorant [of hazing] activities."  In upholding the punitive 
  damages award, the judge described the rationale for the punitive damages
  request: "The jury was  asked to impose punitive damages in order to punish
  Norwich for its inaction and inattention to the  issue of hazing on
  campus."  (Emphasis added).    A corporation may be held directly liable
  for punitive damages.  As stated in Shortle, 137  Vt. at 33, 399 A.2d at
  518:

    The fact that the defendant is a corporation does not prevent an award 
    of punitive damages in an appropriate case, but the malicious or unlawful
    act relied upon must be that of the governing officers of the corporation
    or one lawfully exercising their authority, or, if the act relied upon is
    that of a servant or agent of the corporation, it must be clearly shown
    that the governing officers either directed the act, participated in it,
    or subsequently ratified it.

       While we have made clear our view that the board of trustees and
  management hierarchy of a  corporation cannot insulate itself from the
  malice or its equivalent exhibited by staff, see Wheeler,  155 Vt. at 96,
  582 A.2d  at 171, we are not prepared to hold that inaction or inattention
  of senior  corporate officers constitutes malice sufficient to establish
  punitive damages liability.  This is  particularly true where, as here, the
  findings of fact made by the judge in upholding the jury's  punitive
  damages award are insufficient to support an inference that the defendant's
  inaction was  infused with "a bad motive," Riendeau, 157 Vt. at 625, 603 A.2d  at 365, giving rise to "outrage  frequently

 

  associated with crime," Prosser, supra, § 2 at 9.(FN3)

  Viewing the evidence in the light most favorable to plaintiff, as we must,
  the facts  demonstrate that senior leadership at Norwich knew of numerous,
  often serious, hazings by the cadre  that had taken place on campus during
  the years preceding plaintiff's arrival there, and that Norwich  officials
  left the cadre in "virtually unsupervised control" of plaintiff as a rook. 
  A senior vice  president knew that rooks felt intimidated by the prospect
  of entering a complaint about hazing  through the chain of command, and
  that no formal method of complaining about hazing outside of  the chain of
  command existed while plaintiff was a rook.  Furthermore, a security
  officer testified  that he felt he was not encouraged to report hazing. 
  From 1987 to 1991, Norwich did not implement  any changes to its training
  of student leaders related to hazing, and no changes were introduced to 
  the training patterns that were aimed at avoiding or reducing hazing. 
  Significantly, however, the  evidence indicates that Norwich considered
  hazing to be an inappropriate behavior and, when  training the cadre,
  advised its members to stay within the rule and treat each other suitably. 
  Norwich  had an honor code, sworn to by all students, which prohibited
  hazing.  When specific incidents of  hazing were reported to the senior
  vice president, investigations were conducted.  If reports were  found to
  be valid, disciplinary action was taken, ranging from punishment within the
  corps or loss  of a cadet's rank, to suspension or dismissal from Norwich. 
  Disciplines were announced to the  students by publishing an order from the
  administrative officer of the commandant's office, posting  it on all
  bulletin boards, and giving it to all members of the corps.  It was also
  read in company  formation.  


       On the basis of this record it may be fair to conclude, as indeed the
  court did, that the  defendant was "indifferent to the health and safety of
  the rooks in its custody and control."  But