Civetti v. Turner, No. 19-036

• Docket Nº: No. 19-036
• Citation: 233 A.3d 1056
• Case Date: April 03, 2020
• Court: United States State Supreme Court of Vermont

233 A.3d 1056

Paul CIVETTI
v.
Selby L. TURNER, Jr. and Town of Isle La Motte

No. 19-036

Supreme Court of Vermont.

May Term, 2019
April 3, 2020

Pietro J. Lynn, Sean M. Toohey, and Kienan D. Christianson of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for Plaintiff-Appellant.

Brian P. Monaghan and James F. Conway, III of Monaghan Safar Ducham PLLC, Burlington, for Defendants-Appellees.

PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

ROBINSON, J.

233 A.3d 1058

¶ 1. The central issue in this case is whether a town may be held indirectly liable for damages pursuant to 24 V.S.A. § 901 or § 901a for alleged negligence by the Town Road Commissioner. The trial court dismissed plaintiff's negligence action against the Town of Isle La Motte and the Town Road Commissioner on the grounds that (1) because the Road Commissioner is an "appointed or elected municipal officer," plaintiff was required by § 901(a) to bring his action against the Town, rather than the Road Commissioner, and (2) the Town is, in turn, immune from suit based on municipal immunity. We conclude that if the Road Commissioner was negligent in performing a ministerial function, the Town assumes the Road Commissioner's place in defending the action and therefore may not assert municipal immunity from the claim pursuant to § 901(a) or § 901a, and that dismissal of this claim on the basis of qualified immunity would be premature. We accordingly reverse and remand for further proceedings.

¶ 2. In his complaint, plaintiff alleged that: the Town has formally adopted road standards for its town roads; the Road Commissioner is responsible for assuring that the Town's roads meet those standards; Main Street did not comply with those standards, including standards relating to the "width and shoulder"; the Road Commissioner knew or should have known that Main Street does not comply; and plaintiff was injured in a motor vehicle accident because of the noncompliant road.¹ Defendants separately moved to dismiss under Vermont Rule of Civil Procedure 12(b) and (c). Following oral argument, the court granted defendants' motions.

¶ 3. In dismissing the claim against the Road Commissioner, the trial court explained that under 24 V.S.A. § 901(a) an action against "any appointed or elected municipal officer" must be brought against "the town in which the officer serves." Because the Road Commissioner was an appointed or elected municipal officer, he was not properly named as a defendant. The court further concluded that municipal immunity barred plaintiff's claim against the Town—including the claim against the Road Commissioner directed at the Town pursuant to § 901(a). It reasoned that the Town was entitled to municipal immunity because the allegedly negligent acts—involving the design of roads—were governmental acts. It further concluded that the Town was entitled to "discretionary-function" immunity with respect to its discretionary decision regarding whether and how to comply with its road standards. The court thus dismissed plaintiff's claim against the Town. Plaintiff appealed.

¶ 4. On appeal, plaintiff argues that we should abolish the governmental/proprietary distinction in municipal tort immunity law so that the Town can be held directly

233 A.3d 1059

liable in this case; that the Town's municipal immunity does not insulate it from indirect liability arising from a claim against the Road Commissioner pursuant to § 901(a) and/or § 901a ; and that the trial court's determination that discretionary-function immunity applies here is premature.

¶ 5. We review the court's dismissal of plaintiff's complaint without deference. Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 959 A.2d 990 (mem.). "[W]e take all facts alleged in the complaint as true." Id. "Dismissal under Rule 12(b)(6) is proper only when it is beyond doubt that there exist no facts or circumstances consistent with the complaint that would entitle the plaintiff to relief." Id. For the reasons set forth below, we decline to abolish the governmental/proprietary-function distinction, and thus conclude that the Town is immune from direct suit in this case. However, pursuant to 24 V.S.A. § 901a and § 901(a), the Town essentially steps into the Road Commissioner's shoes for the purposes of defending the suit and paying a judgment; we conclude that it is not entitled to invoke its municipal immunity in that context. Finally, we agree with plaintiff that on the basis of the bare pleadings, we cannot conclude that qualified immunity for discretionary acts applies as a matter of law.

I. The Governmental/Proprietary-Function Distinction

¶ 6. Pursuant to well-established common law, a municipality is generally immune from suit based on the negligent performance of "governmental" functions. Lorman v. City of Rutland, 2018 VT 64, ¶ 9, 207 Vt. 598, 193 A.3d 1174. Designing and building roads is a core governmental function. We recognize that the governmental/proprietary distinction has come under fire, but decline plaintiff's invitation to abandon the distinction at this juncture. Accordingly, we conclude that the Town is immune from direct suit arising from the design and construction of a town road.

¶ 7. Vermont continues to apply the longstanding common-law doctrine of municipal immunity. See Hillerby v. Town of Colchester, 167 Vt. 270, 272, 706 A.2d 446, 447 (1997) (discussing history of municipal immunity in Vermont, dating back to mid-1800s); see also D. Dobbs, et al., The Law of Torts § 343 (2d ed.) (noting that while municipalities are "corporations chartered by the state" and not "sovereigns," "a peculiar history led courts to recognize a distinct municipal immunity, which followed a course of its own" (footnote omitted)).

¶ 8. Pursuant to Vermont's common law of municipal immunity, "[a]bsent insurance coverage, those functions which are governmental are protected by the doctrine of sovereign immunity, while, in contrast, the governmental unit will be liable for injuries caused or sustained in furtherance of its proprietary functions." Lorman, 2018 VT 64, ¶ 9, 207 Vt. 598, 193 A.3d 1174 (quotation omitted). See Town of Stockbridge v. State Hwy. Bd., 125 Vt. 366, 369, 216 A.2d 44, 46 (1965) (recognizing "dual character" of municipal corporation: (1) "governmental, public or legislative" and (2) "corporate, private, ministerial or proprietary"). "The rationale for this is that municipalities perform governmental responsibilities for the general public as instrumentalities of the state; they conduct proprietary activities only for the benefit of the municipality and its residents." Lorman, 2018 VT 64, ¶ 9, 207 Vt. 598, 193 A.3d 1174 (quotation omitted); see also Mark v. City & Cty. of Honolulu, 40 Haw. 338, 341 (1953) ("The theory is that the State being sovereign, no suit can be brought against it without its consent and a municipality in performing

233 A.3d 1060

governmental functions is the agent of the State and, therefore, exempt from suit.").

¶ 9. "Building and maintaining streets ... are generally governmental functions, and no liability for injuries suffered as a result of such activities may attach." Graham v. Town of Duxbury, 173 Vt. 498, 499, 787 A.2d 1229, 1232 (2001) (mem.) (citing cases); accord McMurphy v. State, 171 Vt. 9, 14 n.2, 757 A.2d 1043, 1047 n.2 (2000) ("This Court has long held that the maintenance of highways is a governmental function." (citing cases)). Accordingly, based on a common-law analysis, the Town is immune from direct suit.

¶ 10. We recognize that the governmental/proprietary-function distinction is imperfect. Vermont is one of few states that continue to apply the distinction. Lorman, 2018 VT 64, ¶ 9, 207 Vt. 598, 193 A.3d 1174. And we have recognized that "[t]he application of this doctrine has produced anomalous results in particular cases." Marshall v. Town of Brattleboro, 121 Vt. 417, 423, 160 A.2d 762, 766 (1960) ; see also Mark, 40 Haw. at 341-42 (asserting that "cases are in hopeless confusion and even in the same jurisdiction often impossible to reconcile").

¶ 11. Nevertheless, we reject plaintiff's request that we abolish the governmental/proprietary distinction in municipal tort immunity law. We recently reaffirmed that the distinction applies. See Lorman, 2018 VT 64, ¶¶ 10, 20, 207 Vt. 598, 193 A.3d 1174 (continuing to apply governmental/ proprietary distinction despite its flaws but reiterating that "it would be beneficial for the Legislature to act in this area"). While we will not uncritically perpetuate common-law precedent for its own sake, we continue to believe that the Legislature is best suited to balance the competing considerations at play in reevaluating municipal immunity. See O'Connor v. City of Rutland, 172 Vt. 570, 570-71, 772 A.2d 551, 552-53 (2001) (mem.) (similarly rejecting argument that Court should abolish governmental/proprietary distinction, reiterating earlier holding that Legislature's " ‘fact-finding and problem-solving process is better suited for the task in this area of the law’ ") (quoting Hillerby, 167 Vt. at 276, 706 A.2d at 449 ); Marshall, 121 Vt. at 424, 160 A.2d at 767 (declining to abolish distinction despite "divergent consequences in cases factually similar," explaining that "in over one hundred and ten years the doctrine has become...