Gretkowski v. City of Burlington

• Decision Date: 09 July 1998
• Docket Number: No. 2:97-CV-271.,2:97-CV-271.
• Parties: Frances GRETKOWSKI, Plaintiff, v. CITY OF BURLINGTON, Defendant.
• Court: U.S. District Court — District of Vermont

50 F.Supp.2d 292

Frances GRETKOWSKI, Plaintiff, v. CITY OF BURLINGTON, Defendant.

No. 2:97-CV-271.

United States District Court, D. Vermont.

July 9, 1998.

Robert W. Katims, Hoff, Curtis, Pacht, Cassidy & Frame, P.C., Burlington, DC, for plaintiff.

Nancy Goss Sheahan, McNeil, Leddy & Sheehan, P.C., Burlington, VT, for defendant.

OPINION AND ORDER

(Paper 10)

NIEDERMEIER, United States Magistrate Judge.

The defendant City of Burlington ("Burlington") has moved for summary judgment pursuant to Fed.R.Civ.P. 56 in this personal injury case, arguing that it is statutorily immune from liability and it is immune from liability as a governmental entity. Paper 10. Jurisdiction is based on diversity pursuant to 28 U.S.C. § 1332.¹

For the following reasons, I GRANT Burlington's motion.

FACTS AND DISCUSSION

Plaintiff Frances Gretkowski was injured on August 20, 1994 while walking along the Burlington Bike Pathway ("Bikepath"), which is owned and maintained by Burlington. Paper 1, ¶¶ 6, 7. Gretkowski alleges that her injuries were caused by Burlington's negligent maintenance of the Bikepath. Paper 1, ¶ 11. Burlington contends that 19 V.S.A. § 2309 grants it immunity. Paper 10 at 7. Burlington also claims that the common law doctrine of municipal immunity protects it from liability. Paper 10 at 3-4. These defenses are based on Vermont law.

I. Summary Judgment

Summary judgment shall be granted if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c). A fact is material when it affects the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). There is a genuine dispute over a material fact when the evidence requires a factfinder to resolve the parties' differing versions of the truth at trial. Id. at 249, 106 S.Ct. 2505 (citing First Nat'l Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 288-89, 88 S.Ct. 1575, 20 L.Ed.2d 569, rehearing denied, 393 U.S. 901, 89 S.Ct. 63, 21 L.Ed.2d 188 (1968)). "Uncertainty as to the true state of any material fact defeats the motion." Gibson v. American Broad. Co., 892 F.2d 1128, 1132 (2d Cir.1989).

In analyzing the record, the court must view the evidence in the light most favorable to the nonmoving party and resolve all ambiguities in its favor. Dister v. Continental Group Inc., 859 F.2d 1108, 1114 (2d Cir.1988). The moving party bears the initial burden of informing the court of the basis for the motion and of identifying those parts of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the nonmovant may not rely on conclusory allegations or mere conjecture, but rather must offer specific facts to support a verdict in its favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (construing Fed. R.Civ.P. 56(e)). As to any claim or essential element thereof for which the nonmoving party bears the burden of proof at trial, the nonmoving party must make a showing sufficient to establish the existence of that claim or element. Celotex, 477 U.S. at 322-25, 106 S.Ct. 2548.

The question before this Court is whether Burlington is immune from liability under either 19 V.S.A. § 2309 or the doctrine of municipal immunity.

II. Statutory Immunity

Section 2309 states

No landowner shall be liable for any property damage or personal injury sustained by any person who is using, for any purpose permitted by state law or by a municipal ordinance, bicycle routes constructed on the landowner's property pursuant to this chapter, unless the landowner charges a fee for the use of the property.

19 V.S.A. § 2309 (Supp.1997). The intent of the legislature in passing § 2309 was not to confer immunity on municipalities. Rather, it was to encourage private landowners to allow their property to be used for bike paths. As such, the statute does not protect municipalities that construct bike paths.

III. Municipal Immunity

Burlington also contends that it is protected by the doctrine of municipal immunity. Municipal immunity, as the Vermont Supreme Court recently stated, is a common law doctrine dating back to the mid-1880s in Vermont. Hillerby v. Town of Colchester, 706 A.2d 446, 447 (Vt. 1997). The doctrine of municipal immunity protects a city from damage liability when the city is engaged in a governmental function unless the city has waived its immunity by purchasing insurance. Dugan v. City of Burlington, 135 Vt. 303, 304, 375 A.2d 991 (1977). A city will, however "be liable for injuries caused or sustained in furtherance of its proprietary functions." Id. (emphasis added). This governmental/proprietary distinction, intended "to alleviate the harsh results of municipal immunity," Hudson v. Town of East Montpelier, 161 Vt. 168, 177 n. 3, 638 A.2d 561 (1993), remains alive in Vermont in the area of municipal tort liability. See Hillerby, 706 A.2d at 449 (refusing to repudiate government/proprietary function); Vermont Gas Sys. v. City of Burlington, 153 Vt. 210, 212, 215, 571 A.2d 45 (1989) (declining to apply the distinction in the area of utilities relocation law). Despite the recognition that it is in the distinct minority, the Vermont Supreme Court has continued to apply this distinction, reasoning that in performing governmental functions, municipalities act as instrumentalities of the State and do so for the general public. Hillerby, 706 A.2d at 447; Hudson, 161 Vt. at 177 n. 3, 638 A.2d 561. In contrast, a proprietary function is solely for the benefit of the municipality and its residents. Id. The issue before this Court is therefore whether in operating the Bikepath Burlington engaged in a governmental or proprietary function. See id. In the absence of any Vermont caselaw discussing this precise issue, this Court looks to the distinction Vermont courts have drawn between the two functions in an effort to predict how Vermont courts would view the operation of the Bikepath.

The Vermont Supreme Court has admitted "some difficulty distinguishing between governmental and proprietary functions." Vermont Gas, 153 Vt. at 213, 571 A.2d 45. This has led the court to conclude that "there is no established rule for the determination of what belongs to the one or the other class." Town of Stockbridge v. State Highway Bd., 125 Vt. 366, 369, 216 A.2d 44 (1965). In so doing, the court has found "unworkable" a distinction that would find a function governmental when it is either "`(1) essential or necessary for the government to perform, or (2) traditional for the government to perform.'" Vermont Gas, 153 Vt. at 213, 571 A.2d 45 (quoting Northwest Natural Gas Co. v. City of Portland, 300 Or. 291, 300, 711 P.2d 119, 125 (1985)) (noting that under this test, "nearly all municipal activities are deemed governmental rather than proprietary"). At one time, it appeared that the Vermont courts, reflecting the policy behind the distinction, had adopted the position that a function is a governmental activity if it is discharged as a "public governmental duty" but a proprietary activity if it is done to benefit inhabitants of the municipality. See Winn v. Village of Rutland, 52 Vt. 481, 491, 493 (1880). Since that time, however, the court has rejected the proposition that the test is "whether the benefit from the exercise or the function accrues to the municipality in its corporate capacity or to the public generally." Marshall v. Town of Brattleboro, 121 Vt. 417, 425, 160 A.2d 762 (1960) ("This is not the test this Court finds persuasive for justifying immunity."). Rather, the court has reluctantly adopted the test of whether the function is "so necessary and so vital to the inhabitants [of the municipality] that the municipality itself ought to be immune from liability for the methods it uses in performing such function[ ]." See id. at 424, 160 A.2d 762 (noting that the test has become so firmly established in law that it cannot be lightly set aside).

As a result of the "difficulty distinguishing between governmental and proprietary functions," Vermont Gas, 153 Vt. at 213, 571 A.2d 45, the caselaw provides this Court little guidance in determining whether the maintenance of the Bikepath is a governmental or proprietary function. At various times, the court has affirmed the notion that maintenance of streets and sidewalks is a governmental function, see Town of South Burlington v. American Fidelity Co., 125 Vt. 348, 350, 215 A.2d 508 (1965), but the maintenance of sewers is a proprietary function, see Kelly v. Town of Brattleboro, 161 Vt. 566, 567, 641 A.2d 345 (1993); Fuller v. City of Rutland, 122 Vt. 284, 286, 171 A.2d 58 (1961); Winn, 52 Vt. at 491. But see Dugan, 135 Vt. at 305, 375 A.2d 991 (because a catch-basin can be part of either a sewer or part of the street, plaintiff is not precluded from proving it was part of sewer, and therefore maintenance of catch-basin could be proprietary function).

Legislative authorization of a function is not dispositive as to whether that function is governmental or proprietary. In the 1880 case of Winn, the court indicated that mere authorization indicates that a function is proprietary. See Winn, 52 Vt. at 491. In Winn, the court held that the creation of a sewer system was proprietary. Id. The court noted that where a municipal charter permits a municipality to do something, it is not governmental. Id. Rather, the court stated that a function is governmental where the function is imposed on the municipality by the legislature. Id. In 1942, the court took a contrary position in Lemieux v. City of St. Albans, 112 Vt. 512, 515, 28 A.2d 373. In that case, the court held that the construction of a playground is a governmental function. 112 Vt. at 516, 28 A.2d 373. The court noted with approval McQuillan, ...