Morway v. Trombly

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Morway v. Trombly (2000-499); 173 Vt. 266; 789 A.2d 965

[Filed 28-Dec-2001]

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. 2000-499

Jill Morway Supreme Court

On Appeal from
v. Chittenden Superior Court

Bruce Trombly and Town of Milton September Term, 2000

David A. Jenkins, J.

John J. Bergeron and Kerin E. Stackpole of Bergeron, Paradis & Fitzpatrick,
LLP, Burlington, for Plaintiff-Appellant.

Joseph A. Farnham of McNeil, Leddy & Sheahan, Burlington, for
Defendants-Appellees.

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

JOHNSON, J. Plaintiff Jill Morway, who filed a negligence action
against defendants Town of Milton and its snowplow operator Bruce Trombly
after being injured in a car accident allegedly caused by Trombly, appeals
the superior court's decision granting defendants' joint motion for
summary judgment. Plaintiff does not challenge the grant of summary
judgment in favor of the Town, but contends that the court erred in
granting Trombly summary judgment based on its conclusion that his
operation of the snowplow was a discretionary duty immunizing him from
suit, and that, in any event, plaintiff failed to demonstrate that Trombly
breached any legal duty owed to

her. We conclude that Trombly's operation of the snowplow was a
ministerial, rather than a discretionary, duty that did not accord Trombly
immunity from plaintiff's suit. Further, we conclude that the facts
alleged by plaintiff were sufficient to avoid summary judgment and allow a
jury to determine whether Trombly was negligent, and, if so, whether his
negligence was a proximate cause of the accident. Accordingly, we reverse
the superior court's grant of summary judgment in favor of Trombly, and
remand the matter for further proceedings.

At the time of the accident, which occurred on the morning of January
1, 1999, plaintiff was a passenger riding in the front seat of a car
driven by her husband, Kyle Morway. Their car came upon and began
following Trombly, who was operating a snowplow truck for the Town. There
were snowdrifts on the road, and the wind was blowing. At one point,
another vehicle approached the truck from the opposite direction. After
passing the truck, that vehicle collided with the Morways' vehicle.
Apparently, both drivers were blinded by blowing snow caused by the truck's
plow hitting the snow drifts. The investigating police officer concluded
that the primary cause of the accident was the Morways' vehicle drifting
to the left of center on the road, and the secondary cause was the
Morways' vehicle following the snowplow truck too closely.

In March 1999, plaintiff brought suit against the Town and Trombly,
alleging that she was injured as a result of Trombly's negligence in
operating the snowplow truck. After the parties engaged in significant
discovery, defendants filed a joint motion for summary judgment, asserting
that the doctrine of sovereign immunity shielded the Town from liability,
and that the doctrine of qualified official immunity shielded Trombly from
liability. Plaintiff opposed the motion, but the court granted summary
judgment to both defendants, ruling that (1) under the doctrine of
sovereign immunity, the Town was immune from suits such as plaintiff's
alleging negligence with respect to

governmental functions, including road maintenance; and (2) under the
doctrine of qualified official immunity, Trombly was immune from suits
such as plaintiff's alleging negligence with respect to discretionary acts
performed in good faith during the course of his employment with the Town.
The court concluded that Trombly's operation of the snowplow truck was
discretionary in nature because he had to make decisions concerning the
speed of the truck and the angle of the plow in deciding how best to
negotiate snowdrifts while weighing the safety of others on the road. The
court also concluded that, notwithstanding issues of immunity, plaintiff
had failed to show that defendants breached any duty owed to her.
Finally, the court ruled that plaintiff could not rely on the principle of
res ipsa loquitur (the thing speaks for itself) to prove Trombly's
negligence because she could not show that there were any facts to infer
or that Trombly owed her a legal duty.

On appeal, plaintiff argues that the court erred in granting summary
judgment to Trombly based on the doctrine of qualified official immunity
because his operation of the snowplow truck concerned a ministerial act
not performed in good faith. Plaintiff also argues that the court erred in
concluding that Trombly owed her no legal duty, and that she failed to
demonstrate that he breached any legal duty owed to her. Finally,
plaintiff contends that there were material facts in dispute that preclude
summary judgment.

When we review a decision to grant summary judgment, we apply the same
standard as that applied by the trial court: summary judgment is
appropriate if the moving party proves that there is no genuine issue of
material fact, and that it is entitled to judgment as a matter of law.
White v. Quechee Lakes Landowners' Ass'n, 170 Vt. 25, 28, 742 A.2d 734,
736 (1999). In determining whether there is a genuine dispute over
material facts, "we accept as true allegations made in

opposition to the motion for summary judgment, so long as they are
supported by affidavits or other evidentiary material." Id.

II.

The primary issue we must resolve is whether Trombly was entitled to
judgment as a matter of law based on the doctrine of qualified official
immunity. But before considering that doctrine as it applies to the facts
of this case, we address the apparent aberration raised by the possibility
of allowing a Town to be immune from suit while holding its employees
personally liable for performing routine duties in good faith within the
scope of their employment.

Municipal immunity is a common-law doctrine dating back to the
mid-1800s in Vermont. Hillerby v. Town of Colchester, 167 Vt. 270, 272,
706 A.2d 446, 447 (1997). To alleviate its harsh results, many states
abolished general municipal immunity and eventually replaced it with
specific statutes addressing municipal liability in particular situations.
Id. at 284-85, 706 A.2d at 454 (Johnson, J., dissenting). Vermont,
however, continues to limit the scope of general municipal immunity only
through the arbitrary "governmental-proprietary distinction." Hudson v.
Town of East Montpelier, 161 Vt. 168, 177-78 n.3, 638 A.2d 561, 567 n.3
(1993) (detailing universal criticism of doctrine). While acknowledging
the need to reform the rules of municipal liability in Vermont, this Court
has determined that the Legislature is better suited, because of its
fact-finding and problem-solving process, "to fashion a more reasonable
and workable doctrine." Hillerby, 167 Vt. at 276, 706 A.2d at 449.

Thus far, however, the Legislature has maintained the current system
of municipal immunity, and has done nothing to protect lower-level
municipal employees from tort suits in situations in

which the town is immune from suit. The Legislature has not extended the
state's waiver of sovereign immunity to municipalities in Vermont's tort
claims act. See 12 V.S.A. § 5601 ("state of Vermont" is liable for
negligent or wrongful act of "employee of state" acting within scope of
employment to same extent as private person would be). Nor has the
Legislature required tort suits to be brought exclusively in the name of
the municipality, cf. 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), or required municipalities to defend or
indemnify municipal employees to the extent required of the state. See
Hudson, 161 Vt. at 177, 638 A.2d at 567. Compare 24 V.S.A. § 901 (suits
against municipal or town school district "officer" must be brought against
municipalities; municipalities must assume legal fees incurred by officers
for their unmalicious acts committed while performing official duties) and
24 V.S.A. § 1313 (incorporated villages "may" defend and indemnify public
"officer" against suits for injuries caused by officer discharging official
duties) with 3 V.S.A. § 1101 (state obligated to defend state employee in
civil action alleging damages arising from act or omission in performance
of employee's official duties) and 12 V.S.A. § 5606(a) (state obligated to
indemnify state employee for judgment rendered against employee for acts or
omissions within scope of employment).

As a result, there will be situations in which municipal employees
must answer to tort suits claiming that the employees committed negligent
acts while acting within the scope of their employment, even though the
municipality is immune from suit. It is important to note, however, that
although the employee in such circumstances may technically incur personal
liability should negligence be found, there generally is no personal
liability in fact. As a practical matter, municipalities, such as the
Town of Milton in this case, purchase insurance and defend and

indemnify their employees against liability for judgments based on their
acts performed within the scope of their municipal duties. In general,
municipalities waive their sovereign immunity to the extent of insurance
coverage. See 29 V.S.A. § 1403. But the Legislature "has specifically
authorized municipalities to enter into intermunicipal agreements for
liability insurance purposes, see 24 V.S.A. § 4942, participation in which
does not constitute a waiver of immunity." McMurphy v. State, 171 Vt. 9,
15, 757 A.2d 1043, 1048 (2000). Thus, municipalities are able to defend
and indemnify their employees in situations such as the present case.

We now return to the issue of whether Trombly was entitled to judgment
as a matter of law based on the court's determination that he is immune
from plaintiff's suit. Under the doctrine of qualified official immunity,
which we have applied in cases involving municipal employees, "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." Hudson, 161 Vt. at 171, 638 A.2d at
563. Plaintiff concedes that at the time of the accident Trombly was
performing duties in the course of his employment and within the scope of
his authority. She contends, however, that his negligent operation of the
snowplow truck cannot be characterized as a "good faith" act, and that, in
any case, he was performing a ministerial, rather than a discretionary,
act in operating the truck.

If we determine that Trombly's operation of the snowplow truck was a
ministerial rather than a discretionary act, Trombly is not immune from
suit, regardless of whether he acted in good faith. Accordingly, we first
address whether the alleged negligent conduct was ministerial or
discretionary in nature. In reviewing this prong of the
qualified-immunity test in past cases, we have emphasized

the importance of considering the specific facts of each case in light of
the purposes behind the immunity doctrines, rather than relying on literal
or dictionary definitions of the terms. Johnson v. State, 165 Vt. 588,
589-90, 682 A.2d 961, 963(1996) (mem.); Hudson, 161 Vt. at 172, 638 A.2d at
564.

In Hudson, we 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
decision-making.

161 Vt. at 172, 638 A.2d at 564. Thus, courts will not hold government
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." Id. at 173-74, 638 A.2d at 565.

We applied these principles to the facts of Hudson, which concerned
town employees sued for their alleged negligence in placing gravel over a
ledge protruding from a dirt road. In claiming that their actions were
discretionary rather than ministerial in nature, the employees pointed out
that they were 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. We
rejected this position, holding that although the employees might have had
some discretion in how to perform their job, their decisions did not
require "a weighing of the type of public policy considerations that would
warrant shielding [them] from

liability." Hudson, 161 Vt. at 175, 638 A.2d at 566. Because their
decisions did not require them to balance potential benefits and risks to
the public, they did not have "'the right to be wrong,'" and thus, to be
immune from suit. Id. (quoting Libercent v. Aldrich, 149 Vt. 76, 82, 539 A.2d 981, 984 (1987) (internal quotes omitted)).

We have virtually the same situation here. Trombly may have had the
discretion to make decisions concerning the speed of the truck or the
position or angle of the plow, but these are not the type of discretionary
determinations that immunize governmental employees from liability for
their negligence. See 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"); cf. Andolino v. State, 624 P.2d 7, 9 (Nev. 1981) (decision
regarding which areas of highway to plow was operational, and not
discretionary, in nature). Accordingly, we conclude that Trombly was not
entitled to summary judgment based on the doctrine of qualified official
immunity.

We recognize that it may seem unfair to some that a municipal snowplow
operator may be subject to personal liability for doing a difficult job
under difficult circumstances. The issue in this appeal is whether
Trombly should be immune from suit and any potential liability, not whether
he is actually liable to plaintiff for his actions. Plaintiff still must
prove negligence on Trombly's part. In any event, we have an obligation
to abide by the principles behind the policy of providing limited immunity
from suit to government employees. We may not ignore those principles to
reach a certain result. Doing so would distort the policy for future
immunity cases and lead us back to the morass of cases seeking to
distinguish ministerial and discretionary acts through a literal
interpretation of

the terms. Under the principles outlined in Hudson, Trombly plainly was
not performing the type of duties that would make him immune from civil
tort actions.

III.

The superior court determined, however, that, notwithstanding issues
of immunity, (1) plaintiff could not show that Trombly breached a duty
owed to her; and (2) the doctrine of res ipsa loquitur (the thing speaks
for itself) is inapplicable under the facts of this case. See Black's Law
Dictionary 1311-12 (7th ed. 1999) (res ipsa loquitur is doctrine providing
that, in some circumstances, mere fact of accident's occurrence raises
inference of negligence). In the court's view, plaintiff could not rely
on the principle of res ipsa loquitur to show that Trombly was negligent
because there were no gaps in the facts to infer and, in any case,
plaintiff could not show that Trombly owed her a legal duty.

The superior court's ruling that plaintiff could not prove Trombly
owed her a legal duty is plainly wrong and inconsistent with its
acknowledgment that Trombly, like all drivers, had a general duty to
maintain a proper lookout and operate his truck in a safe manner. See
Smith v. Gainer, 153 Vt. 442, 445-46, 571 A.2d 70, 71-72 (1990); see also
23 V.S.A. § 1081(a) (no driver shall drive vehicle on highway at speed
that is greater than is reasonable or prudent under conditions, having
regard for actual and potential hazards then existing).

We also disagree with the court's ruling that, as a matter of law,
plaintiff could not prove negligence on the part of Trombly. The facts,
viewed most favorably to plaintiff, see Pierce v. Riggs, 149 Vt. 136, 139,
540 A.2d 655, 657 (1987) (facts asserted by party opposing summary
judgment, if supported by affidavits or other evidentiary material, are
regarded as true), revealed that Trombly was traveling approximately
thirty miles per hour when he struck high snow drifts in the road on a

windy winter day. They further indicated that Trombly was familiar with
the blinding "white-outs" that can be caused by a plow striking drifts,
that he observed the vehicle coming toward him from the other side of the
road, that he knew at one point that a car was following him, and that he
did not slow down before striking the drifts immediately preceding the
accident. The parties disputed whether Trombly realized at the time he
struck the drifts that the Morway vehicle was still following him.

Summary judgment is not appropriate in situations involving facts that
leave some doubt as to whether a reasonable jury would find the defendant
negligent. Particularly where there is no settled rule of diligence more
specific than a general reasonableness standard, "negligence is ordinarily
a question for the jury." Baisley v. Missisiquoi Cemetery Ass'n, 167 Vt.
473, 480, 708 A.2d 924, 928 (1998). This is not a case in which we can
know with certainty, given the record on appeal, whether a reasonable jury
would find Trombly negligent or not. See Thompson v. Green Mount. Power,
120 Vt. 478, 483, 485, 144 A.2d 786, 789, 790 (1958) (foresight of harm
lies at foundation of negligence; foreseeable consequences may be
significant in determining scope of legal duty and whether duty was
violated). While we acknowledge that motorists driving behind or passing
a snowplow must be alert to the obvious possibility of blowing snow, it is
conceivable that a reasonable jury could determine, upon a full
exploration of the facts, that Trombly was negligent in this instance.
Accordingly, the superior court erred in granting summary judgment to
Trombly on the basis that plaintiff could not demonstrate Trombly's
negligence.

Finally, while we agree with the superior court that the doctrine of
res ipsa loquitur generally applies only when there is a gap in the
evidence and some facts are left to inference, see Black's Law Dictionary,
supra, at 1312 (application of doctrine presupposes that some part of
causal process is

known, but that evidence connecting defendant's act or omission with
accident's causal process is lacking), the parties have not briefed the
issue of whether the court properly rejected plaintiff's partial reliance
on res ipsa loquitur. Moreover, the record on appeal is insufficient for
us to determine whether an instruction on res ipsa loquitur would be
appropriate should this case come before a jury. In any event, regardless
of the nature of plaintiff's theory, she has alleged sufficient facts
supported by affidavits or other evidentiary material to reach the jury on
the question of whether Trombly was negligent.

Reversed and remanded.

FOR THE COURT:

_______________________________________
Associate Justice

------------------------------------------------------------------------------
Concurring

No. 2000-499

Jill Morway Supreme Court

On Appeal from
v. Chittenden Superior Court

Bruce Trombly and Town of Milton September Term, 2000

David A. Jenkins, J.

John J. Bergeron and Kerin E. Stackpole of Bergeron, Paradis & Fitzpatrick,
LLP, Burlington, for Plaintiff-Appellant.

Joseph A. Farnham of McNeil, Leddy & Sheahan, Burlington, for
Defendants-Appellees.

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

AMESTOY, C.J., concurring. As the majority observes, we are once
again confronted with the potential aberration of a town employee being
held personally liable for the good faith performance of his duties within
the scope of his employment when the employer Town is immune from suit.
Although I disagree with the Court's analysis in Hudson v. Town of East
Montpelier, 161 Vt. 168, 638 A.2d 561 (1993), I acknowledge that its
holding controls the result here, and therefore concur. See O'Connor v.
City of Rutland, __ Vt. __, __, 772 A.2d 551, 552 (2001) (mem.) (we do not
lightly overturn recent precedent).

I write separately to note that, in addition to the majority's
identification of potential legislative responses to the quandary of
exposure of municipal employees to tort liability in situations in which
the town is immune from suit (see majority infra 4-5), legislative remedies
may exist in the narrower context of "snow and ice" or "weather" immunity
statutes. Thus, for example, some legislatures have chosen to extend
immunity to municipal employees for claims arising from weather conditions
on highways. See, e.g., 745 Ill. Comp. Stat. 10/3-105 (2001).

A legislative response which extends immunity to lower-level municipal
employees only for "weather" or "snow and ice" is, of course, open to
criticism from those who would prefer to see a broader "modernization" of
our law on municipal liability. As the dissents of Justice Dooley and
Justice Johnson in Hillerby v. Town of Colchester, 167 Vt. 270, 276-294,
706 A.2d 446, 449-60 (1997), amply demonstrate, consensus on the need for
change of the law is much easier to reach than agreement on how to change
the law. At the very least, however, our decision in this case should
prompt the Legislature to exercise the fact-finding and problem-solving
process we have previously identified as better suited for this area of
the law. Id. at 276, 706 A.2d at 449.

I concur with the majority's opinion exposing municipal snowplow
operators to individual personal liability for a good faith attempt to
carry out the duties assigned to them because current law compels the
result - not because the result makes sense.

______________________
Chief Justice

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