O'Connor v. City of Rutland

O'Connor v. City of Rutland (2000-072); 172 Vt. 570; 772 A.2d 551

[Filed 13-Apr-2001]


                                 ENTRY ORDER

                      SUPREME COURT DOCKET NO. 2000-072

                              MARCH TERM, 2001


Jean O'Connor, et al.	               }	APPEALED FROM:
                                       }
                                       }
     v.	                               }	Rutland Superior Court
                                       }	
City of Rutland	                       }
                                       }	DOCKET NO. S0628-99 RcC

                                                Trial Judge: David A. Jenkins 

             In the above-entitled cause, the Clerk will enter:


       Plaintiff Jean O'Connor (FN1) appeals from the Rutland Superior
  Court's grant of defendant  City of Rutland's motion to dismiss her
  complaint under V.R.C.P. 12(b)(6) on the grounds that  defendant is immune
  from suit under our municipal immunity doctrine.  Plaintiff urges us to 
  reconsider, and overrule, Hillerby v. Town of Colchester, 167 Vt. 270, 706 A.2d 446 (1997).  We  decline to do so and affirm.  

       In October 1996, plaintiff's daughter was struck and killed by a
  motorist in the City of Rutland  while she was crossing the street. 
  Plaintiff brought suit against the City under Vermont's Wrongful  Death
  Act, 14 V.S.A. §§ 1491-1492, seeking damages.  Plaintiff's complaint
  alleged-and in the  procedural posture of this case, we accept as true-that
  the City was negligent in failing to maintain  adequate crosswalks and in
  failing to provide adequate street lighting.  Defendant moved to dismiss, 
  claiming immunity because maintaining and designing streets, street
  lighting, and crosswalks are  governmental functions, and thus, the City is
  immune under our municipal immunity doctrine as  recently explicated in
  Hillerby and McMurphy v. State, ___ Vt. ___, 757 A.2d 1043 (2000).  The 
  trial court granted defendant's motion; plaintiff appeals.  Plaintiff does
  not contest that the trial court  was correct under the existing municipal
  immunity doctrine.  

       In the past decisions of this Court, we have recognized the importance
  of the doctrine of stare  decisis, and we have noted that although we are
  not "slavish adherents" to this doctrine, neither do  we lightly overturn
  recent precedent, especially where the precedent could be changed easily by 
  legislation at any time.  State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055,
  1056 (1997) (mem.); 

 

  Chittenden v. Waterbury Ctr. Cmty. Church, 168 Vt. 478, 490-91, 726 A.2d 20, 29 (1998).  Such is  the case here.  In Hillerby, the majority of this
  Court decided that abrogating the  governmental/proprietary distinction in
  our municipal immunity doctrine was for the Legislature and  not the
  courts, 167 Vt. at 272, 706 A.2d  at 446, partly because the Legislature's
  "fact-finding and  problem-solving process is better suited for the task in
  this area of the law," id. at 276, 706 A.2d  at  449.  Thus, the
  considerations that underlie Hillerby also weigh against overturning it,
  even  assuming that current members of the Court would have reached a
  different decision.


       Affirmed.  


            
                                       BY THE COURT:



                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       James L. Morse, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice



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                                  Footnotes


FN1.  Plaintiff brought suit individually, on behalf of her daughter's
  estate, and on behalf of  Sierra Pomainville and Carol O'Connor, as next
  friend.