Hudson v. Town of East Montpelier

Decision Date29 November 1993
Docket NumberNo. 91-341,91-341
Citation161 Vt. 168,638 A.2d 561
PartiesJudith HUDSON v. TOWN OF EAST MONTPELIER, Cooleen Parker, Administratrix of the Estate of Robert Parker, and Michael Garand.
CourtVermont Supreme Court

Robert G. Cain and Christopher J. McVeigh of Paul, Frank & Collins, Inc., Burlington, for plaintiff-appellee.

Jeffry W. White and John Davis Buckley of Theriault & Joslin, P.C., Montpelier, for defendants-appellants.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and PECK, J. (Ret.), Specially Assigned.

JOHNSON, Justice.

Two employees of the Town of East Montpelier, who were sued in their personal capacity for negligently repairing a town road, appeal from a jury verdict in favor of plaintiff. Although defendants claim several errors, the principal issue we must decide is whether the superior court correctly concluded that the doctrine of qualified official immunity did not shield the employees from liability under the circumstances of this case. We affirm the court's decision.

The relevant facts are not in dispute. In November 1986, at a town selectmen's meeting, East Montpelier Road Foreman Robert Parker was instructed to place gravel over a ledge protruding from a dirt road within the town. Parker was 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. Approximately a week after the meeting, on the morning of November 13, Parker dumped two truckloads of gravel in a swath around the exposed ledge after placing temporary warning signs at both ends of the work site. Grader Operator Michael Garand then leveled the gravel and packed it by running the tires of the grader over it several times. Parker approved the job, picked up the temporary warnings signs, and left. Two to three hours after Parker and Garand left the site, plaintiff lost control of her car when her front tires sank into the newly laid gravel. The car struck a tree, and plaintiff suffered multiple injuries.

Plaintiff filed suit against the Town of East Montpelier, the town's two insurance companies, and Parker and Garand. She elected to pursue the suit only against Parker and Garand in their personal capacity after the superior court ruled that the town's insurance policies excluded her claims from coverage. Defendants filed a motion for summary judgment, arguing that either the doctrine of official immunity or the town's sovereign immunity shielded them from liability. The court denied the motion, and the case proceeded to trial, where the jury assessed total damages at $135,000 and apportioned 70% of the fault to Parker, 24% to plaintiff, and 6% to Garand.

On appeal, defendants argue the court erred in concluding that they were not immune from suit. They also argue that the evidence does not support the jury's finding of negligence, and that the court abused its discretion by (1) refusing to allow the introduction of evidence showing that plaintiff was operating an unregistered vehicle, (2) allowing an unqualified expert to testify on ultimate conclusions of law, (3) allowing testimony of other motorists who had lost control of their cars at the same spot that afternoon, and (4) failing to examine the jurors individually, after learning that one of them had asked if the jurors could be taken to the scene of the accident, to determine whether they had discussed the case among themselves before the close of evidence.

I.
A.

Defendants first argue that Parker's acts were discretionary in nature and thus immune under the doctrine of qualified official immunity. Much of their argument is an attack on what they consider to be the superior court's flawed "bright-line" test that once a discretionary decision is made, in this case by selectmen, all subsequent acts are ministerial as a matter of law. We disagree with their characterization of the court's opinion. In any event, we need not adopt the court's rationale in affirming its conclusion. Gochey v. Bombardier, Inc., 153 Vt. 607, 613, 572 A.2d 921, 925 (1990) (correct judgment may be affirmed even though grounds stated in support of it are erroneous). Rather than dissect the superior court's decision, we need determine only whether it correctly ruled that the doctrine of qualified official immunity did not shield defendants from liability. We conclude that the court's ruling was correct.

In Libercent v. Aldrich, 149 Vt. 76, 81, 539 A.2d 981, 984 (1987), we stated the general rule that 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. We also noted that this Court had applied the doctrine of qualified official immunity in prior cases involving the liability of municipal officers. Id. at 80, 539 A.2d at 983; see, e.g., Ferraro v. Earle, 105 Vt. 243, 246, 164 A. 886, 887 (1933) (municipal officer is personally liable for injuries caused by officer's negligence in performance of ministerial duties); Daniels v. Hathaway, 65 Vt. 247, 254-55, 26 A. 970, 972-73 (1892) (town selectmen are not personally liable for injury resulting from defect in town highway because of performance of discretionary duties).

While, at times, we have defined the words discretionary-decisional and ministerial-operational in literal terms, we have also recognized, as have other courts and commentators, that these words are merely "formalistic labels" provided for conclusions reached after consideration of all relevant factors. Libercent, 149 Vt. at 81, 539 A.2d at 984; see Restatement (Second) of Torts § 895D, at 416-17 (1979) (rather than look at dictionary definition of word discretionary, courts must weigh numerous factors to determine whether immunity is appropriate); 4 E. McQuillin, The Law of Municipal Corporations § 12.208, at 165 (3d ed. 1992) (whether public officer's acts are discretionary or ministerial must be determined after weighing factors such as nature of officer's duties, extent to which acts involve policymaking, and consequences of withholding immunity); W. Keeton, Prosser & Keeton on the Law of Torts § 132, at 1062 (5th ed. 1984) (courts have been unable to define distinction between discretionary and ministerial acts; conclusion that act is discretionary is often result of assessing various factors). Accordingly, we have not relied exclusively on a literal definition of these words. See Levinsky v. Diamond, 151 Vt. 178, 191, 559 A.2d 1073, 1082 (1989) (discretionary-decisional versus ministerial-operational analysis "provides no definitive test, for ministerial-operational acts may still entail some minor decision-making responsibilities"); see also Comment, The Discretionary Function Exception to Government Tort Liability, 61 Marq.L.Rev. 163, 168-69 (1977) (courts have not employed literal definition to interpret discretionary function exception since definitional approach was rejected by California Supreme Court in Johnson v. State, 447 P.2d 352, 357, 73 Cal.Rptr. 240, 245 (1968)).

Rather than rely on the dictionary to understand what is meant by the words discretionary and ministerial in the context of sovereign or official immunity, we must examine the purposes behind the immunity. Id. at 358-59, 73 Cal.Rptr. at 245-46 (determination whether particular activity is discretionary or ministerial should be guided by purpose of immunity); Peavler v. Monroe Cty. Bd. of Comm'rs, 528 N.E.2d 40, 45 (Ind.1988); see Marshall v. Town of Brattleboro, 121 Vt. 417, 424, 160 A.2d 762, 767 (1960) (duty of this Court is to test issue of municipal immunity in light of purpose of doctrine).

Most courts and commentators have 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 decisionmaking. See Restatement, supra, § 895D, at 412. Regarding the first rationale, one prominent commentator states:

Some official conduct is more vulnerable to attack than other conduct. Some official conduct especially needs a free range of choice that is not hampered by concerns over potential personal liability. Other official conduct is neither especially vulnerable to complaint nor in need of especially unhampered decision-making. One who repairs the street can do a good job without provoking a citizen suit; the prosecuting attorney cannot do a good job without provoking anger and, sooner or later, a citizen suit. Good operation of the prosecutor's office does adversely affect people (usually criminals, but, unavoidably, others as well); good operation of the street repair department does not harm people, but on the contrary makes their travel safer. Both kinds of work are socially desirable, but one kind, since it is intended to adversely affect others and does so, is more likely to generate claims than the other. The range of free choice needed in the two kinds of work is also quite different. The importance of the officer's freedom of decision and the likelihood of unjust suit for honest decision-making are factors to be considered in deciding whether official conduct is "discretionary" and immune or "ministerial" and unprotected.

Prosser & Keeton, supra, § 132, at 1065 (footnote omitted).

The second rationale underscores the vital public interest in the free and independent judgment of employees charged with the duty of making public policy decisions. This rationale is related to the doctrine of separation of powers, which is most often cited as a rationale for sovereign immunity, but is also an important factor in determining whether official...

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