My Sister's Place v. City of Burlington

Decision Date02 June 1981
Docket NumberNo. 185-79,185-79
Citation433 A.2d 275,139 Vt. 602
PartiesMY SISTER'S PLACE v. CITY OF BURLINGTON and Lt. John Vincent.
CourtVermont Supreme Court

Skinner & Skinner, Montpelier, for plaintiff.

Anthony B. Lamb of Paul, Frank & Collins, Inc., Burlington, for defendants.


HILL, Justice.

My Sister's Place, a nonprofit Vermont corporation, rented the second floor of a downtown Burlington building in June, 1975, with the intention of opening a women's center. Prior to extending its month-to-month lease to a six month arrangement, agents of My Sister's Place met with Burlington deputy fire warden Lt. John Vincent, to discuss the renovations necessary to bring the premises into compliance with the relevant fire code. The Burlington City Code entrusts fire wardens with the duty of enforcing those codes.

At that meeting, plaintiff's agents informed defendant Vincent that they intended to use the space for a restaurant and a community-based social and cultural women's center, and expected approximately fifty people at meetings. Vincent was aware that the previous tenant had planned to open a restaurant. He also knew that the building was wood-core. Plaintiff's agents were given by him a list of specific improvements necessary to meet fire code requirements, including the installation of sheetrock, particular types of doors, two fire extinguishers, emergency lighting, exit signs and bannisters, and the repair of the stairs. Vincent informed plaintiff's agents that the restaurant area capacity would be restricted to 75-100 persons. He also asked for a list of specific activities planned at My Sister's Place. No list was ever provided.

About ten days later, plaintiff's agents were issued a building permit by the Burlington building inspector so that the renovations could be made. Workers were hired and construction commenced. All employees agreed to defer receipt of their wages until after My Sister's Place opened, but they kept track of the hours worked.

In September, 1975, Vincent was asked to inspect the premises to determine the proper placement of fire extinguishers and fire doors. At that meeting, plaintiff's agents mentioned for the first time that a bar would be installed and that My Sister's Place would apply for a liquor license after the restaurant opened. Vincent responded by informing plaintiff's agents that they could have neither a restaurant nor a bar, attributing his earlier approval of a restaurant to his being unfamiliar with certain provisions in the fire codes for wood-core buildings.

Plaintiff sued Vincent and the City of Burlington, claiming it acted in reliance of Vincent's negligent statements to its detriment in the sum of $12,749.00. Plaintiff later amended its complaint to demand $25,806.98. Defendants waived their right to a jury after the first complaint, V.R.C.P. 38(d), but, in response to the amended complaint, attempted to revive that right. The trial court rejected the request for a jury.

The trial court concluded that Vincent was negligent in performing his duties, that plaintiff's agents relied upon his statements, and, as a result, suffered damages. Citing Verrill v. Dewey, 130 Vt. 627, 629, 299 A.2d 182 (1972), and Nadeau v. Marchessault, 112 Vt. 309, 311, 24 A.2d 352 (1942), the court ruled that Vincent was immune because he was acting in a quasi-judicial capacity, and dismissed that portion of the complaint. Burlington was held liable for $6,110.73, the court explaining that the City is responsible for the negligence of its agents.

Burlington appeals, claimant that the trial judge made errors of law and incorrectly calculated damages. Plaintiff did not challenge the court's decision concerning Vincent.


Central to finding Burlington liable was the lower court's determination that the city was not protected by the doctrine of sovereign immunity. 29 V.S.A. § 1403 provides (W)hen a municipal corporation purchases a policy of liability insurance under section 1092 of Title 24 ... it waives its sovereign immunity from liability to the extent of the coverage of the policy and consents to be sued.

There is no dispute that Burlington has an insurance policy covering the present damage action. Because of that policy the trial judge ruled that the defense of sovereign immunity was not pertinent to the suit.

Defendant, however, claims it is protected by sovereign immunity both because plaintiff did not properly plead or prove waiver of the defense.

While sovereign immunity is not considered an affirmative defense in Vermont, Lemieux v. City of St. Albans, 112 Vt. 512, 516, 28 A.2d 373 (1942), we need not reach the issue of whether plaintiff's original pleadings provided sufficient facts to raise the issue. Pleadings are treated as conforming to the evidence introduced by consent during the course of litigation, V.R.C.P. 15(b), and defendants' answers to interrogatories established that the City had insurance coverage.

Defendant also claims that it shares the quasi-judicial immunity enjoyed by its employee, Vincent. While a public officer performing his official duties is immune from suit, Verrill, supra, 130 Vt. at 629, 299 A.2d at 183, support provided for the proposition that Burlington shares that protection is inapposite. Defendant, for example, cites Norton v. United States, 581 F.2d 390 (4th Cir. 1978), but that case clearly rests upon an interpretation of a particular federal statute, and the court so restricted its holding. Id. at 395 n.7. City of Hialeah v. Hutchins, 166 So.2d 607 (Dist.Ct.App.Fla. 1964), also cited by defendant, does not raise the issue of how an employee's immunity affects a city's liability.

The immunity waiver elucidated in 29 V.S.A. § 1403 makes no mention of the governmental unit vicariously enjoying an employee's immunity, and we will not strip the statute of its plain meaning nor ignore the obvious intention of the Legislature. See State v. Lynch, 137 Vt. 607, 611-12, 409 A.2d 1001 (1979).


Burlington also challenges the trial judge's conclusion that it should be estopped from disclaiming liability for damages resulting from its agent's representations to plaintiff.

Vincent was a duly authorized agent of the City charged with a duty of enforcing the National Fire Safety Code. Concomitant with that duty is the charge of knowing the law and properly advising the public. There is no dispute that Vincent was acting within the scope of his employment throughout his dealings with plaintiff's agents. While the doctrine of estoppel must be applied with great caution when the government is the involved party, Champaign County, Illinois v. United States Law Enforcement Assistance Administration, 611 F.2d 1200, 1205 (7th Cir. 1979); 28 Am.Jur.2d Estoppel and Waiver §§ 129, 139, nevertheless when a government agent acts within his authority, the government can be estopped by his actions, Molton, Allen & Williams, Inc. v. Harris, 613 F.2d 1176, 1179 (D.C. Cir.1980); Morris v. Andrus, 593 F.2d 851, 854 (9th Cir.1978). See also Village of Morrisville Water & Light Department v. Town of Hyde Park, 129 Vt. 1, 270 A.2d 584 (1970).

The doctrine of equitable estoppel precludes a party from asserting rights which otherwise may have existed as against another party who has in good faith changed his position in reliance upon earlier representations. See Dutch Hill Inn, Inc. v. Patten, 131 Vt. 187, 193, 303 A.2d 811 (1973); Precious Metals Associates v. Commodity Futures Trading Commission, 620 F.2d 900, 908 (1st Cir.1980). "The doctrine of estoppel is based upon the grounds of public policy, fair dealing, good faith, and justice, and its purpose is to forbid one to speak against his own act, representations or commitments to the injury of one to whom they were directed and who reasonably relied thereon." Dutch Hill Inn, Inc. supra, 131 Vt. at 193, 303 A.2d at 815. As we recently elucidated in Town of Bennington v. Hanson-Walbridge Funeral Home, Inc., 139 Vt. ---, 427 A.2d 365, 369 (1981), the four elements of equitable estoppel are: "(1) (t)he party to be estopped must know the facts; (2) he must intend that his conduct shall be acted on or must so act that the party asserting the estoppel has a right to believe it is so intended; (3) the latter must be ignorant of the true facts; and (4) he must rely on the former's conduct to his injury." The trial court's conclusions that plaintiff relied upon Vincent's representations, see Liberty Mutual Insurance Co. v. Cleveland, 127 Vt. 99, 103, 241 A.2d 60 (1968), and that plaintiff's actions were a proximate and reasonably anticipated result of defendant's agent's representations, see McLaughlin v. Blake, 120 Vt. 174, 179, 136 A.2d 492 (1957), are amply supported in the record. See also Dessureau v. Maurice Memorials, Inc., 132 Vt. 350, 353, 318 A.2d 652 (1974); Armstrong v. Hanover Insurance Co., 130 Vt. 182, 185, 289 A.2d 669 (1972).

Defendant, however, argues that plaintiff's reliance upon Vincent's representations was unreasonable because plaintiff's agents had not informed the fire warden that they were contemplating adding a bar to the meeting center. "Courts will not predicate an estoppel in favor of one of whose own omissions or inadvertence contributed to the problem," Town of Bennington, supra, 139 Vt. at ---, 427 A.2d at 369; Novella v. Hartford Accident & Indemnity Co., 163 Conn. 552, 556, 316 A.2d 394 (1972). But the possible addition of a bar was not a principal intended use of the premises, see Town of Bennington, supra, nor did its potential existence mitigate the fact that Vincent negligently led plaintiff's agents to believe that a restaurant could be operated after certain renovations were completed. The City is not estopped from denying liability pertaining to blocking the operation of a bar. The damage award is limited to the consequences of the failure of the inspector to warn the plaintiff that the other plans...

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