Hudson v. Town of East Montpelier

HUDSON_V_TOWN_OF_EAST_MONTPELIER.91-341; 161 Vt. 168; 638 A.2d 561

[Filed 29-Nov-1993]

 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. 91-341


 Judith Hudson                                Supreme Court

                                              On Appeal from
      v.                                      Washington Superior Court

 Town of East Montpelier,                     February Term, 1993
 Cooleen Parker, Administratrix
 of the Estate of Robert Parker,
 and Michael Garand


 Alan W. Cheever, J.

 Robert G. Cain and Christopher J. McVeigh of Paul, Frank & Collins, Inc.,
    Burlington, for plaintiff-appellee

 Jeffrey W. White and John Davis Buckley of Theriault & Joslin, P.C.,
    Montpelier, for defendants-appellants



 PRESENT:  Gibson, Dooley, Morse and Johnson, JJ. and Peck, J. (Ret.),
           Specially Assigned



      JOHNSON, J.   Two employees of the Town of East Montpelier, who were
 sued in their personal capacity for negligently repairing a town road,
 appeal from a jury verdict in favor of plaintiff.  Although defendants claim
 several errors, the principal issue we must decide is whether the superior
 court correctly concluded that the doctrine of qualified official immunity
 did not shield the employees from liability under the circumstances of this
 case.  We affirm the court's decision.

 

      The relevant facts are not in dispute.  In November 1986, at a town
 selectmen's meeting, East Montpelier Road Foreman Robert Parker was
 instructed to place gravel over a ledge protruding from a dirt road within
 the town.  Parker was not told how much gravel to use, how to pack the
 gravel or cover the ledge, or how long to leave warning signs at the site.
 Approximately a week after the meeting, on the morning of November 13,
 Parker dumped two truckloads of gravel in a swath around the exposed ledge
 after placing temporary warning signs at both ends of the work site.  Grader
 Operator Michael Garand then leveled the gravel and packed it by running the
 tires of the grader over it several times.  Parker approved the job, picked
 up the temporary warnings signs, and left.  Two to three hours after Parker
 and Garand left the site, plaintiff lost control of her car when her front
 tires sank into the newly laid gravel.  The car struck a tree, and plaintiff
 suffered multiple injuries.
      Plaintiff filed suit against the Town of East Montpelier, the town's
 two insurance companies, and Parker and Garand.  She elected to pursue the
 suit only against Parker and Garand in their personal capacity after the
 superior court ruled that the town's insurance policies excluded her claims
 from coverage.  Defendants filed a motion for summary judgment, arguing that
 either the doctrine of official immunity or the town's sovereign immunity
 shielded them from liability.  The court denied the motion, and the case
 proceeded to trial, where the jury assessed total damages at $135,000 and
 apportioned 70% of the fault to Parker, 24% to plaintiff, and 6% to Garand.
      On appeal, defendants argue the court erred in concluding that they
 were not immune from suit.  They also argue that the evidence does not
 support the jury's finding of negligence, and that the court abused its

 

 discretion by (1) refusing to allow the introduction of evidence showing
 that plaintiff was operating an unregistered vehicle, (2) allowing an
 unqualified expert to testify on ultimate conclusions of law, (3) allowing
 testimony of other motorists who had lost control of their cars at the same
 spot that afternoon, and (4) failing to examine the jurors individually,
 after learning that one of them had asked if the jurors could be taken to
 the scene of the accident, to determine whether they had discussed the case
 among themselves before the close of evidence.
                                     I.
                                     A.
      Defendants first argue that Parker's acts were discretionary in nature
 and thus immune under the doctrine of qualified official immunity.  Much of
 their argument is an attack on what they consider to be the superior court's
 flawed "bright-line" test that once a discretionary decision is made, in
 this case by selectmen, all subsequent acts are ministerial as a matter of
 law.  We disagree with their characterization of the court's opinion.  In
 any event, we need not adopt the court's rationale in affirming its
 conclusion.  Gochey v. Bombardier, Inc., 153 Vt. 607, 613, 572 A.2d 921, 925
 (1990) (correct judgment may be affirmed even though grounds stated in
 support of it are erroneous).  Rather than dissect the superior court's
 decision, we need determine only whether it correctly ruled that the
 doctrine of qualified official immunity did not shield defendants from
 liability.  We conclude that the court's ruling was correct.
      In Libercent v. Aldrich, 149 Vt. 76, 81, 539 A.2d 981, 984 (1987), we
 stated the general rule that lower-level government employees are immune
 from tort liability when they perform discretionary acts in good faith

 

 during the course of their employment and within the scope of their
 authority.  We also noted that this Court had applied the doctrine of
 qualified official immunity in prior cases involving the liability of
 municipal officers.  Id. at 80, 539 A.2d  at 983; see, e.g., Ferraro v.
 Earle, 105 Vt. 243, 246, 164 A. 886, 887 (1933) (municipal officer is
 personally liable for injuries caused by officer's negligence in performance
 of ministerial duties); Daniels v. Hathaway, 65 Vt. 247, 254-55, 26 A. 970,
 972-73 (1892) (town selectmen are not personally liable for injury resulting
 from defect in town highway because of performance of discretionary duties).
      While, at times, we have defined the words discretionary-decisional and
 ministerial-operational in literal terms, we have also recognized, as have
 other courts and commentators, that these words are merely "formalistic
 labels" provided for conclusions reached after consideration of all relevant
 factors.  Libercent, 149 Vt. at 81, 539 A.2d  at 984; see Restatement
 (Second) of Torts { 895D, at 416-17 (1979) (rather than look at dictionary
 definition of word discretionary, courts must weigh numerous factors to
 determine whether immunity is appropriate); 4 E. McQuillin, The Law of
 Municipal Corporations { 12.208, at 165 (3d ed. 1992) (whether public
 officer's acts are discretionary or ministerial must be determined after
 weighing factors such as nature of officer's duties, extent to which acts
 involve policymaking, and consequences of withholding immunity); W. Keeton,
 Prosser & Keeton on the Law of Torts { 132, at 1062 (5th ed. 1984) (courts
 have been unable to define distinction between discretionary and ministerial
 acts; conclusion that act is discretionary is often result of assessing
 various factors).  Accordingly, we have not relied exclusively on a literal
 definition of these words.  See Levinsky v. Diamond, 151 Vt. 178, 191, 559 A.2d 1073, 1082 (1989) (discretionary-decisional versus ministerial-opera-
 tional analysis "provides no definitive test, for ministerial-operational
 acts may still entail some minor decision-making responsibilities"); see
 also Comment, The Discretionary Function Exception to Government Tort
 Liability, 61 Marq. L. Rev. 163, 168-69 (1977) (courts have not employed
 literal definition to interpret discretionary function exception since
 definitional approach was rejected by California Supreme Court in Johnson v.
 State, 447 P.2d 352, 357, 73 Cal. Rptr. 240, 245 (1969)).
      Rather than rely on the dictionary to understand what is meant by the
 words discretionary and ministerial in the context of sovereign or official
 immunity, we must examine the purposes behind the immunity.  Id. at 358-59,
 73 Cal. Rptr.  at 245-46 (determination whether particular activity is
 discretionary or ministerial should be guided by purpose of immunity);
 Peavler v. Monroe Cty. Bd. of Comm'rs, 528 N.E.2d 40, 45 (Ind. 1988); see
 Marshall v. Town of Brattleboro, 121 Vt. 417, 424, 160 A.2d 762, 767 (1960)
 (duty of this Court is to test issue of municipal immunity in light of
 purpose of doctrine).
      Most courts and commentators have recognized that the doctrine of
 qualified official immunity serves primarily to shield government employees
 from exposure to personal tort liability that would (1) hamper or deter
 those employees from vigorously discharging their duties in a prompt and
 decisive manner, and (2) unfairly subject employees who have a duty to
 exercise discretion regarding matters of public policy to the judgment of
 those acting within a judicial system that is ill-suited to assess the full
 scope of factors involved in such decisionmaking.  See Restatement, supra {

 

 895D, at 412.  Regarding the first rationale, one prominent commentator
 states:
           Some official conduct is more vulnerable to attack
         than other conduct.  Some official conduct especially
         needs a free range of choice that is not hampered by
         concerns over potential personal liability.  Other
         official conduct is neither especially vulnerable to
         complaint nor in need of especially unhampered decision-
         making.  One who repairs the street can do a good job
         without provoking a citizen suit; the prosecuting
         attorney cannot do a good job without provoking anger
         and, sooner or later, a citizen suit.  Good operation of
         the prosecutor's office does adversely affect people
         (usually criminals, but, unavoidably, others as well);
         good operation of the street repair department does not
         harm people, but on the contrary makes their travel
         safer.  Both kinds of work are socially desirable, but
         one kind, since it is intended to adversely affect
         others and does so, is more likely to generate claims
         than the other.  The range of free choice needed in the
         two kinds of work is also quite different.  The impor-
         tance of the officer's freedom of decision and the
         likelihood of unjust suit for honest decision-making
         are factors to be considered in deciding whether
         official conduct is "discretionary" and immune or
         "ministerial" and unprotected.
 Prosser & Keeton, supra { 132, at 1065 (footnote omitted).
      The second rationale underscores the vital public interest in the free
 and independent judgment of employees charged with the duty of making public
 policy decisions.  This rationale is related to the doctrine of separation
 of powers, which is most often cited as a rationale for sovereign immunity,
 but is also an important factor in determining whether official immunity is
 appropriate in a given situation.  See Smith v. Cooper, 475 P.2d 78, 88 (Or.
 1970) (in suit against employees of state highway commission, "most decisive
 factor . . . is that it is essential for efficient government that certain
 decisions of the executive or legislative branches of the government should
 not be reviewed by a court or jury"); Restatement, supra { 895D, at 416
 (among factors courts consider in determining whether officers' acts are

 

 discretionary is "extent to which passing judgment on the exercise of
 discretion by the officer will amount necessarily to passing judgment . . .
 on the conduct of a coordinate branch of government"); Prosser & Keeton,
 supra { 132, at 1065 (most significant factor regarding discretionary
 immunity is doctrine of separation of powers).(FN1) Courts will generally not
 hold legislative or executive employees personally liable for policy
 decisions that are based on factors such as availability or allocation of
 public resources or public acceptance because traditional tort standards do
 not provide an adequate basis for evaluating these types of decisions in
 coordinate branches of government.  See Prosser & Keeton, supra { 132, at
 1065.
      For example, in Smith the Oregon Supreme Court held that state highway
 employees were immune from liability for negligence in various acts
 concerning the designing and planning of a highway because their actions
 were dependent upon considerations such as the funds available for the

 

 project, the amount of land available, the potential loss of agricultural
 land that would result from the project, the amount of traffic contemplated,
 and the evaluation of technical data regarding safety.  475 P.2d  at 90; cf.
 Grant v. Davis, 537 So. 2d 7, 9 (Ala. 1988) (state highway employees who had
 discretion to rank road repair projects based on available resources were
 immune from suit alleging they failed to properly inspect and repair
 shoulder of road).  This Court has employed similar reasoning in finding
 town selectmen immune from suits claiming injury as the result of negligent
 street repair or operation of construction equipment.  See Bates v. Horner,
 65 Vt. 471, 476-77, 27 A. 134, 136 (1893) (village trustees not liable where
 no evidence showed that they operated, or supervised operation of, stone
 crusher that caused injury); Daniels, 65 Vt. at 254-55, 26 A.  at 972-73
 (selectmen not liable for injury caused by failure to repair road where
 selectmen did not actually repair road or supervise repair of road, and
 where performance of their duties required exercise of discretion regarding
 available funds and priority of projects).
      In short, whether the act of a government employee is discretionary so
 as to make the employee immune from personal tort liability requires a case-
 by-case examination of the nature of the act to determine whether the
 employee's action involved the type of policy considerations not suitable
 for review under the judicial system's traditional tort standards.
      Parker's actions in the present case fail to meet this test, and
 therefore are not immune from suit.  Although Parker had to exercise some
 discretion in determining how best to cover the ledge and whether or how
 long to leave warning signs at the site, there is no suggestion that his
 decisions required a weighing of the type of public policy considerations

 

 that would warrant shielding him from liability.  See Restatement, supra {
 895D, at 413, 418 (official immunity extends to lower administrative
 officers when they make "a decision by weighing the policies for and against
 it"; courts consider repair of highways to be ministerial under ordinary
 circumstances); Ham v. Los Angeles Cty., 189 P. 462, 468 (Cal. 1920) ("it
 would be difficult to conceive of any official act, no matter how directly
 ministerial, that did not admit of some discretion in the manner of its
 performance, even if it involved only the driving of a nail").  In short,
 this is not a case requiring a balancing of potential benefits and risks to
 the public, where Parker had the "'right to be wrong.'"  Libercent, 149 Vt.
 at 82, 539 A.2d  at 984 (quoting Williams v. City of Detroit, 111 N.W.2d 1,
 25 (Mich. 1961) (Edwards, J., dissenting)).
                                     B.
      Defendants contend, however, that it violates public policy to impose
 personal liability on town employees in situations where the town is immune
 and the employees acted solely to discharge a duty owed by the town to the
 public in general rather than to specific individuals.  Defendants ask this
 Court to limit our holding in Marshall that "the immunities as to negligent
 acts of municipalities do not attach to their employees" to situations where
 an employee violates a "special" duty owed to a particular individual or
 class of individuals.  See 121 Vt. at 424, 160 A.2d  at 767.  In effect,
 defendants ask us to adopt the "public duty doctrine" and its "special
 relationship" exception, which protect government units or employees from
 liability unless the person seeking recovery can show that the duty breached

 

 was a duty owed to that person in particular, rather than to the public at
 large.(FN2)
      We decline to adopt this doctrine, which in recent years has been
 rejected or abolished by most courts considering it.  Leake v. Cain, 720 P.2d 152, 158 (Colo. 1986) (growing number of courts have rejected rule);
 Jean W. v. Commonwealth, 610 N.E.2d 305, 312 (Mass. 1993) ("the trend has
 been to abolish the rule"); Prosser & Keeton, supra { 131, at 1049 (public
 duty doctrine has been eroded by recent decisions rejecting or limiting it).
 Courts have rejected or abolished the doctrine because it is confusing and
 leads to inequitable, unpredictable, and irreconcilable results.  Leake, 720 P.2d  at 159; Jean W., 610 N.E.2d  at 313.  These courts have stressed that
 concerns over excessive government or public employee liability are baseless
 considering the limitations on liability afforded by conventional tort
 principles, various types of official immunity, or exceptions to waivers of
 sovereign immunity.  Leake, 720 P.2d  at 160; Jean W., 610 N.E.2d  at 313-14.
      Courts have noted that, although the doctrine is couched in terms of
 duty rather than liability, in effect, it resurrects the governmental
 immunities that have been abrogated or limited by most jurisdictions over
 the last thirty-five years.  Leake, 720 P.2d  at 160 (effect of doctrine is
 identical to that of sovereign immunity, which precludes liability based on
 public status of party rather than nature of act); Jean W., 610 N.E.2d  at
 313 (doctrine has no vitality in wake of tort claims act); cf. Gordon v.

 

 Bridgeport Housing Auth., 544 A.2d 1185, 1197 (Conn. 1988) (in refusing to
 abolish public duty doctrine, court noted that legislature had not abrogated
 governmental immunity); Catone v. Medberry, 555 A.2d 328, 334 (R.I. 1989)
 (refusing to apply public duty doctrine where government employee engages in
 activity normally undertaken by private individual, such as driving
 vehicle).  But see Beaver v. Gosney, 825 S.W.2d 870, 873 (Mo. Ct. App. 1992)
 (declining to abolish public duty doctrine; abrogation of sovereign immunity
 did not impliedly abrogate doctrine).
      We recognize that this final rationale for rejecting the doctrine --
 that acceptance or retention of the doctrine would be inconsistent with the
 abrogation of sovereign immunity implicit in the adoption of a tort claims
 act -- is not entirely applicable here because this case involves municipal
 employees.  Our Legislature has neither abrogated sovereign immunity with
 respect to municipalities in our tort claims act, see 12 V.S.A. { 5601
 ("state of Vermont" is liable for wrongful act of "employee of the state"),
 nor required municipalities to defend or indemnify all municipal employees
 in every circumstance.  See 24 V.S.A. { 901 (suits against municipal
 officers must be brought against municipalities; municipalities must assume
 legal fees incurred by officers sued for their nonmalicious acts committed
 while performing official duties); 24 V.S.A. { 1313 (incorporated villages
 "may" defend and indemnify public officers against suits for injuries caused
 by officers discharging official duties); cf. 3 V.S.A. { 1101 (obligation of
 state to defend state employees); 12 V.S.A. { 5602 (when state employee
 causes damage or injury while acting within scope of employment, exclusive
 right of action lies against state); 12 V.S.A. { 5606 (obligation of state

 

 to indemnify state employees where state law is incapable of establishing
 employee immunity).
      Nevertheless, municipal immunity has been limited in Vermont by the
 governmental-proprietary distinction,(FN3) and by 29 V.S.A. { 1403, which

 

 waives a municipality's sovereign immunity to the extent of its insurance
 coverage.  Moreover, conventional tort principles and the doctrine of
 qualified official immunity offer some protection to municipal employees.
      In the absence of the public duty doctrine or a statute specifically
 limiting liability, a municipal employee who commits a tortious act is
 personally liable to the injured person, even though the employee is engaged
 in a governmental function and the municipality is exempt under the doctrine
 of sovereign immunity.  4 McQuillin, supra { 12.211.10, at 281; see
 Marshall, 121 Vt. at 424, 160 A.2d  at 767.  Indeed, municipal employees are
 generally liable for injuries resulting from their negligent repair of
 streets, even though the municipality is exempted from liability.  4
 McQuillin, supra { 12.213, at 288.
      We decline to adopt the confusing and inconsistent public duty doctrine
 as a means of limiting the liability of government employees who are already
 protected to some extent by the doctrine of qualified official immunity, or
 as a means of addressing the discrepancy between the statutory protection
 afforded to state and municipal employees in Vermont.  If the Legislature
 determines that no municipal employees required to engage in work-related
 activities affecting the safety of many people should be held personally
 liable for their negligence in undertaking ministerial tasks within the
 scope of their employment, it may require all municipalities to indemnify

 

 all of their employees or to purchase insurance in order to protect their
 employees from tort judgments, or it may declare suits against municipal-
 ities the exclusive remedy for those injured by municipal employees acting
 within the scope of their employment.  See Prosser & Keeton, supra { 132, at
 1068-69.  As the law now stands, however, the trial court correctly ruled
 that neither the doctrine of qualified official immunity nor the immunity of
 the town shielded defendant Parker from liability from suit for his
 negligence in supervising the repair of the road.
                                     II.
      Defendants also argue that the court should have granted them a
 directed verdict because there was no evidence from which the jury could
 have reasonably concluded that they were negligent.  We disagree.  There was
 ample evidence that defendants placed excessive loose gravel on an extremely
 dangerous section of the road without leaving signs warning motorists of the
 condition of the road.  The gravel was placed on a section of the road
 immediately following a blind curve at the brow of a hill.  According to
 plaintiff and two other witnesses who traveled the road that afternoon, the
 gravel was so deep and loose that their cars fishtailed as they arrived at
 that point in the road.  The investigating police officer confirmed that the
 gravel was deep and loose.  Plaintiff's expert testified that the loose
 gravel caused the accident.  Despite the fact that the gravel was left at a
 section of the road that was not visible until the last moment, there were
 no warning signs left at the site.  This was more than enough evidence to
 justify the jury's verdict.  See Seewaldt v. Mount Snow, Ltd., 150 Vt. 238,
 239, 552 A.2d 1201, 1201-02 (1988) ("A motion for a directed verdict cannot

 

 be granted where there is any evidence fairly and reasonably tending to
 justify a verdict in the nonmoving party's favor.").
      Garand argues that there is no evidence that he was negligent because
 the exposed ledge could not be removed by grading the road, and he had no
 responsibility as far as placing warning signs.  Again, we disagree.  The
 road was left in a dangerous condition without warning to motorists.
 Although Parker had the final say as to whether the gravel was sufficiently
 compacted, Garand did operate the equipment and, as he testified, could have
 questioned Parker's orders.  The jury was reasonably justified in attribu-
 ting 6% of the fault to Garand.
                                    III.
      Defendants' remaining four claims of error can be disposed of in short
 order.  First, defendants argue that plaintiff's expert was not qualified to
 testify regarding the placement of warning signs, and that his testimony on
 that point drew an improper legal conclusion.  Because these specific
 objections were not raised before the trial court, we need not consider them
 here.  See Deyo v. Kinley, 152 Vt. 196, 200, 565 A.2d 1286, 1289 (1989)
 (issue not preserved on appeal unless aggrieved party makes specific
 objection at trial clearly stating grounds for objection); Massucco v.
 Vermont College Corp., 127 Vt. 254, 261, 247 A.2d 63, 67 (1968) (where
 plaintiff failed to object at trial to expert's qualifications or testimony,
 issues not preserved on appeal).
      Second, relying on Coates v. Town of Canaan, 51 Vt. 131, 139 (1878),
 defendants argue that the court should not have allowed testimony by two
 motorists regarding the condition of the road the afternoon of the accident
 because plaintiff failed to establish that the road's condition on each of

 

 those occasions was substantially the same as at the time the accident
 occurred.  The Coates case does not support defendants' argument.  There,
 the inadmissible testimony depicted the condition of a different part of the
 road two days earlier that was caused by a different defect from the one
 that caused the accident.  Id. at 138-39.  The Court held that the plaintiff
 had no right to offer testimony on defects that did not cause the accident
 or on the condition of the road at times other than the accident unless the
 testimony would aid the jury in determining the road's condition at the time
 of the accident.  Id. at 139; cf. Mobbs v. Central Vermont Ry., 155 Vt. 210,
 226, 583 A.2d 566, 575 (1990) (trial court did not abuse discretion in
 refusing to allow testimony of accidents at railroad crossings other than
 site of accident).  Here, the witnesses testified as to the condition of the
 exact same section of the road shortly before, and only a few hours after,
 the accident occurred.  We find no abuse of discretion in admitting the
 testimony.
      Third, defendants contend that the court ignored Hanley v. Town of
 Poultney, 100 Vt. 172, 175, 135 A.2d 713, 714 (1927) by refusing to allow
 evidence that plaintiff was driving an unregistered vehicle.  We need not
 address the continuing viability of Hanley, which ruled that one who is
 injured while operating an unregistered vehicle on a public highway cannot
 collect damages from a town for its breach of a statutory duty, because this
 case is controlled by Gilman v. Central Vermont Ry., 93 Vt. 340, 347, 107 A. 122, 124-25 (1919).  Gilman held that one who is injured while operating an
 unregistered vehicle on a public highway may recover damages for negligence
 as long as the illegal act is not the proximate cause of the accident.
 Here, there is no suggestion that the unregistered status of the car was a

 

 factor in causing the accident.  The court acted well within its discretion
 in refusing to admit the evidence as unduly prejudicial.
      Finally, defendants argue that the court committed reversible error by
 declining to examine the jurors individually after one of them asked, before
 the close of evidence, if it would be possible for the jurors to be taken to
 the scene of the accident.  Defendants contend that because the juror spoke
 for the jurors in general, the court was required to examine all the jurors
 to determine if, in fact, they had improperly discussed the case among
 themselves before the close of evidence.  We find no abuse of discretion.
 The court's examination of the court officer who responded to the juror's
 question revealed that only one juror asked about the site visit, that the
 juror gave no explanation for the request, and that the officer had not
 heard any of the jurors discussing the evidence among themselves.  The lone
 juror's request, in and of itself, did not require the court to examine the
 jurors individually.
      Affirmed.

                                    FOR THE COURT:

                                    ____________________________________
                                    Associate Justice



------------------------------------------------------------------------------
                               Footnotes


FN1.    At least one jurisdiction has stated that the definition of
 discretionary is different depending on whether it is applied to sovereign
 or official immunity because the purpose and scope of the two types of
 immunity differ.  See Holmquist v. State, 425 N.W.2d 230, 233 n.1 (Minn.
 1988); Nusbaum v. Blue Earth Cty., 422 N.W.2d 713, 718 n.4. (Minn. 1988).
 According to the Minnesota Supreme Court, discretion in the context of an
 officer's immunity is broader than the type of discretion referred to in the
 discretionary function exception to sovereign immunity.  Nusbaum, 422 N.W.2d  at 718 n.4; cf. Bermann, Integrating Governmental and Officer Tort
 Liability, 77 Colum. L. Rev. 1175, 1182 (1977) (tort claims statutes have
 generally not indicated whether word "discretionary" has same meaning for
 purposes of both governmental and officer immunity).  But cf. Stevenson v.
 State Dep't of Transp., 619 P.2d 247, 250 (Or. 1980) (in Oregon, California,
 and federal tort claims statutes word discretionary "appears to have the
 same meaning when applied to governmental immunity as it does when applied
 to public employees' immunity").  We need not determine whether the word
 "discretionary" is precisely coextensive when applied to the two types of
 immunity, but, as indicated in our discussion in the text, many of the
 purposes of official immunity also apply to sovereign immunity, including
 concerns over the separation of powers of coordinate branches of government.


FN2.    In its traditional form, the public duty doctrine shields public
 employees from liability only where the plaintiff sustained injury as the
 result of the employee's failure to act to prevent a situation or condition
 not originally caused by the employee.  Jean W. v. Commonwealth, 610 N.E.2d 305, 316 (Mass. 1993) (O'Connor, J., concurring); see Prosser & Keeton,
 supra { 131, at 1049.  Even if we were to accept the doctrine in this form,
 and we do not, defendants would not prevail.


FN3.    The governmental-proprietary distinction was the first attempt by
 many courts, including this one, to alleviate the harsh results of municipal
 immunity, which had long been under attack.  See Restatement (Second) of
 Torts { 895C, at 408-09 (1979).  Most courts eventually abolished municipal
 immunity.  See id. at 409-10.  Vermont is one of a minority of states that
 retains the governmental-proprietary distinction, which has been criticized
 by courts and commentators for many years as unworkable.  See 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," under Federal Tort Claims Act because of "the
 inevitable chaos when courts try to apply a rule of law that is inherently
 unsound"); Spencer v. General Hospital of District of Columbia, 425 F.2d 479, 481 (D.C. Cir. 1969) (distinction has "lost its vitality as an
 accurate or adequate rationale" for immunity); 18 E. McQuillin, The Law of
 Municipal Corporations { 53.24.10, at 315 (3d ed. 1993) (doctrine is
 considered "unsound and unworkable" because attempts to fit particular
 conduct into one of the two categories has led to inconsistent, artificial,
 and inequitable results); W. Keeton, Prosser & Keeton on the Law of Torts {
 131, at 1054 (5th ed. 1984) (distinction "is basically unworkable");
 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").
      This Court, too, has at times expressed dissatisfaction with the
 governmental-proprietary distinction.  See, e.g., Vermont Gas Systems, Inc.
 v. City of Burlington, 153 Vt. 210, 215, 571 A.2d 45, 48 (1989) (distinction
 rejected in context of utility relocation law); Town of Stockbridge v. State
 Hwy. Bd., 125 Vt. 366, 369, 216 A.2d 44, 46 (1965) (distinction "is not
 clearly defined," basis of distinction "is difficult to state," and no
 established rule exists for determination of what belongs to which class);
 Marshall v. Town of Brattleboro, 121 Vt. 417, 424, 160 A.2d 762, 767 (1960)
 (application of distinction "sometimes leads to divergent consequences in
 cases factually similar").  The arbitrariness of the doctrine is exemplified
 by our prior cases involving the repair of roads and sewers.  Although most
 jurisdictions retaining the distinction have classified the repair of both
 roads and sewers as proprietary in nature, see 18 McQuillin, supra { 53.41,
 at 349; Prosser & Keeton, supra { 131, at 1054, this Court has held that the
 maintenance of streets and sidewalks is governmental, while the maintenance
 of sewers is proprietary.  Dugan v. City of Burlington, 135 Vt. 303, 304-05,
 375 A.2d 991, 992 (1977).  Thus, as the law now stands, a person who drives
 a car into an excavation on a town street may sue the town if the hole is
 the result of repair to a sewer or water line, Kelly v. Town of Brattleboro,
 No. 92-581 (Vt. October 1, 1993) (water line repair not distinguishable from
 sewer line repair); Fuller v. City of Rutland, 122 Vt. 284, 287, 171 A.2d 58, 59-60 (1961) (sewer line repair is proprietary), but not if the hole is
 the result of repair to the street.
      Because the only remaining defendants in this case are the two town
 employees in their personal capacity, we need not consider the continuing
 viability of the governmental-proprietary distinction.