Dugan v. City of Burlington, 240-76
| Decision Date | 07 June 1977 |
| Docket Number | No. 240-76,240-76 |
| Citation | 375 A.2d 991,135 Vt. 303 |
| Court | Vermont Supreme Court |
| Parties | Edward J. DUGAN v. CITY OF BURLINGTON. |
Graves & Nicholson, South Burlington, and William S. Roby, III, Waterbury, for plaintiff.
Joseph E. McNeil, Burlington, for defendant.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
The plaintiff Edward Dugan allegedly suffered bodily injury when, as he was walking along a street in the City of Burlington, he fell into a partially uncovered catch-basin. In a complaint filed in the Chittenden Superior Court, he alleged that the injuries he sustained were due to the negligence of the city in designing and maintaining the catch-basin and grate. He presently appeals from the superior court's order, based on the doctrine of sovereign immunity, granting the defendant City of Burlington's motion to dismiss for failure to state a claim upon which relief could be granted.
In reviewing the court's order, we are to regard all facts properly pleaded by the non-moving party as having been admitted by the moving party. Huey v. Bates, 135 Vt. ---, 375 A.2d 987 (1977). Therefore, the sole facts for our consideration are those enumerated above. On the basis of these facts, we hold that the superior court improperly granted the city's motion to dismiss and that the cause must be remanded for further proceedings.
The law of sovereign immunity as it has developed in this jurisdiction places emphasis upon the distinction between "proprietary" and "governmental" functions. Absent 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. Fuller v. City of Rutland, 122 Vt. 284, 286, 171 A.2d 58 (1961). The building and maintenance of streets and sidewalks are governmental functions, Town of South Burlington v. American Fidelity Co., 125 Vt. 348, 350, 215 A.2d 508 (1965), while the maintenance of sewers is considered proprietary. Stoneking v. Orleans Village, 127 Vt. 161, 167, 243 A.2d 763 (1968); Fuller v. City of Rutland, supra.
The plaintiff's complaint stated that his injuries were caused by a fall into the partially uncovered catch-basin. From this complaint, the only document available to review the court's order, it cannot be ascertained whether the catch-basin was used and maintained by the city as part of its streets or as an integral aspect of its sewer system. The superior court's reference to the structure as a "man-hole" serves to indicate this underlying uncertainty. Under V.R.C.P. 12(b)(6), as under the comparable federal rule,
a complaint should not be...
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