Civetti v. Turner, 22-AP-079

Docket Nº22-AP-079
Citation2022 VT 64
Case DateDecember 30, 2022
CourtUnited States State Supreme Court of Vermont

2022 VT 64

Paul Civetti
Shelby Turner & Town of Isle La Motte

No. 22-AP-079

Supreme Court of Vermont

December 30, 2022

On Appeal from Superior Court, Grand Isle Unit, Civil Division David A. Barra, J.

Pietro J. Lynn of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Plaintiff-Appellant.

Brian P. Monaghan and Zachary J. Chen of Monaghan Safar Ducham PLLC, Burlington, for Defendants-Appellees.

Present: Reiber, C.J., Eaton, Carroll, Cohen and Waples, JJ.


¶ 1. The primary issue in this appeal is whether the Town of Isle La Motte and its road commissioner, Shelby Turner, are entitled to qualified immunity as a defense to plaintiff Paul Civetti's negligence claims. The trial court determined that both the Town and the road commissioner were entitled to qualified immunity and granted their motions for summary judgment after concluding that decisions regarding road alterations were discretionary, "involv[ing] an element of judgment or choice," rather than ministerial, meaning "prescribe[d]." Searles v. Agency of Transp., 171 Vt. 562, 563, 762 A.2d 812, 814 (2000) (mem.) (quotation omitted). We agree with the trial court that deciding whether to widen Main Street was discretionary, thus entitling both the Town and the road commissioner to qualified immunity. We therefore affirm.


¶ 2. The underlying tort action in this appeal followed an August 2016 motor vehicle accident in the Town of Isle La Motte. Plaintiff was driving a propane truck on Main Street when he lost control of the vehicle causing it to roll over and come to rest on its roof. Plaintiff asserts that defendants were negligent in failing to widen Main Street in accordance with Vermont Town Road and Bridge Standards, causing his accident. The State of Vermont promulgates Town Road and Bridge Standards to serve as guidance for municipalities when they decide to construct or alter a town highway. Plaintiff filed a negligence claim against defendants the Town of Isle La Motte and Shelby Turner, in his capacity as road commissioner, seeking damages for plaintiff's injuries. The parties dispute what authority, if any, the Town Selectboard delegated to the road commissioner to construct, lay out, and alter Town roadways.

¶ 3. Plaintiff's original complaint was dismissed by the trial court based on municipal immunity, culminating in the parties' first appearance before this Court. See Civetti v. Turner, 2020 VT 23, ¶ 1, 212 Vt. 185, 233 A.3d 1056 (Civetti I). In Civetti I, we held that the statutory framework amounts to a waiver of municipal immunity, placing the Town in the shoes of its municipal officers, and entitling it only to the defenses available to those officers. Id. ¶ 15; see also 24 V.S.A. § 901(a) (governing actions by or against municipal officers and employees). We did not foreclose a qualified-immunity defense, however, and remanded the case to the trial court to consider "a host of factors not evident from the bare pleadings" in deciding whether such a defense was available to defendants. Civetti I, 2020 VT 23, ¶¶ 32, 37.

¶ 4. After further development of the record, the Town moved for summary judgment on several bases, including qualified immunity, and the trial court granted the motion. The trial court applied the two-part test established by the United States Supreme Court in U.S. v. Gaubert, 499 U.S. 315, 322 (1991), and adopted by this Court in Searles, 171 Vt. at 563-64, 762 A.2d at 813-14, to determine whether the omission at issue was discretionary or ministerial in nature. The first part of the test asks whether the act or omission employed an element of judgment or choice


and, if the act contained such an element, the second part asks whether that act was of the type that the discretionary-function exception was designed to shield from liability. Id., 171 Vt. at 563, 762 A.2d at 814. This exception is designed to protect public officers from suffering legal consequences for making the kind of difficult decisions that officials are often required to make. See Gaubert, 499 U.S. at 323 ("[T]he purpose of the exception is to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort . . . ." (quotation omitted)).

¶ 5. In analyzing the first prong, the trial court determined that deciding whether to alter town roads was discretionary in nature because there was no explicit policy mandating such action. It noted that the Town had not adopted any policy that would require the widening of Main Street, and further, the Town Road and Bridge Standards did not require municipalities to alter their existing infrastructure. Turning to the second prong, the trial court determined that deciding whether to widen Main Street was necessarily grounded in the kinds of public-policy considerations that the qualified-immunity doctrine was designed to protect. It noted that the road commissioner must weigh factors such as safety and cost in making decisions about highway projects, considerations often steeped in public policy.

¶ 6. Plaintiff appeals, arguing that the road commissioner's duty to maintain Main Street in compliance with the Town's adopted road standards was ministerial in nature and thus defendants are not entitled to qualified immunity. Plaintiff further argues that the road commissioner had a ministerial duty to widen Main Street that flowed from his duty to maintain the town roads, a duty delegated to him by the Selectboard. Plaintiff also asserts that disputed material facts remain regarding the Town's duty to maintain Main Street, namely whether widening Main Street was an "alteration" or routine "maintenance."

¶ 7. "We review a grant of summary judgment de novo, using the same standard as the superior court." Tillson v. Lane, 2015 VT 121, ¶ 7, 200 Vt. 534, 133 A.3d 832. "Summary


judgment is appropriate 'if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Alpine Haven Prop. Owners' Ass'n, Inc. v. Deptula, 2020 VT 88, ¶ 22, 213 Vt. 507, 245 A.3d 1245 (quoting V.R.C.P. 56(a)). On the one hand, "we accept as true allegations made in opposition to the motion for summary judgment," and on the other, "[t]he party opposing summary judgment may not rest upon the mere allegations or denials in its pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial." Id. (quotation omitted).

¶ 8. "Under the doctrine of sovereign immunity, claims against the State are barred unless immunity is expressly waived by statute." Kane v. Lamothe, 2007 VT 91, ¶ 6, 182 Vt. 241, 936 A.2d 1303 (quotation omitted). The Vermont Tort Claims Act waives the State's sovereign immunity in certain circumstances, including for the acts of state or municipal employees and officials meeting certain elements. See 12 V.S.A. § 5601 et seq.; see also Civetti I, 2020 VT 23, ¶ 33 (holding that municipal "officials" and "employees" are both protected for purposes of statutory-immunity scheme). "Absolute immunity is generally afforded to judges . . . legislators, and the highest executive officers," while "[o]nly qualified immunity is extended to lower-level officers, employees, and agents." O'Connor v. Donovan, 2012 VT 27, ¶ 6, 191 Vt. 412, 48 A.3d 584 (quotation omitted). The second form of immunity is qualified in the sense that an official must show they were: "(1) acting during the course of their employment and . . . within the scope of their authority; (2) acting in good faith; and (3) performing discretionary, as opposed to ministerial acts." Id. (quotation omitted).

¶ 9. "To be within the scope of employment, conduct must be of the same general nature as, or incidental to, the authorized conduct." Brueckner v. Norwich Univ., 169 Vt. 118, 123, 730 A.2d 1086, 1091 (1999). Conduct falls outside the scope of employment if it is different in kind from that which is approved by the principal, far outside of the authorized time and space, or too attenuated from achieving the principal's purposes. Id. "This Court has adopted the federal


standard for good faith," which hinges "upon the objective reasonableness of the official's conduct." Amy's Enters. v. Sorrell, 174 Vt. 623, 624-25, 817 A.2d 612, 617 (2002) (mem.). "Such acts are objectively reasonable if an officer of reasonable competence could have made the same choice in similar circumstances." Id. at 625, 817 A.2d at 617. As noted above, courts consider whether an act is discretionary or ministerial by asking: (1) "whether the challenged act involves an element of judgment or choice, or whether a statute, regulation, or policy specifically prescribes a course of action for an employee to follow"; and, if the court determines that the challenged act involves judgment or choice, (2) "whether that judgment is of the kind that the discretionary function exception was designed to shield." Sea...

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