Olsen v. Town of Barre

• Court: Superior Court of Vermont
• Writing for the Court: Mary Miles Teachout, Superior Judge
• Citation: 2019 Vt Super 082804
• Docket Number: 236-4-18 Wncv
• Decision Date: 28 August 2019
• Parties: MADALEINE OLSEN Plaintiff v. TOWN OF BARRE Defendant

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2019 Vt Super 082804

MADALEINE OLSEN Plaintiff v. TOWN OF BARRE Defendant

No. 236-4-18 Wncv

Superior Court of Vermont, Civil Division, Washington Unit

August 28, 2019

DECISION

Mary Miles Teachout, Superior Judge

The Town of Barre's Motion for Summary Judgment

This is a personal injury action arising out of an automobile collision between Plaintiff Madaleine Olsen and a Town of Barre Police Officer, Jacob Frey, in the course of his official duties. Ms. Olsen alleges that Mr. Frey was operating his police vehicle in a negligent or reckless manner and that negligence or recklessness caused the collision.^[1] Ms. Olsen claims that the Town is liable for Mr. Frey's wrongful operation and is separately liable for "negligent training," referring to some unexplained negligence in the manner by which it allegedly trained Mr. Frey to drive. The Town counterclaimed against Ms, Olsen, asserting that her negligence caused die collision.^[2]

The Town has filed a summary judgment motion arguing that qualified official immunity protects it from liability for the claim against Mr. Frey, and that it has municipal sovereign immunity to Ms. Olsen's negligent training claim. It also argues generally that Ms. Olsen will be unable to come forward with any evidence of injuries.

There is no dispute that on the day of the collision, Mr. Frey was on official police business, responding to an emergency call. As his cruiser turned a comer in snowy and icy conditions, he lost control and slid into Ms. Olsen's vehicle, which was approaching from the opposite direction. Ms. Olsen had not pulled to the right and stopped. See 23 V.S.A. § 1050(a) ("Upon the approach of a law enforcement vehicle which is sounding a siren or displaying a blue or blue and white signal lamp,... all other vehicles shall pull to the right of the lane of traffic and come to a complete stop, until the law enforcement or emergency vehicle has passed.").

Qualified official immunity

The Town argues that, regardless whether Mr. Frey may have operated his cruiser negligently, his conduct is protected by qualified official immunity. Qualified official immunity generally protect lower level governmental employees "from tort liability only where they are:' 1) acting during the course of their employment and acting, or reasonably believe they are acting, within the scope of their authority; 2) acting in good faith; and 3) performing discretionary, as opposed to ministerial acts.'" Libercent v. Aldrich, 149 Vt. 76, 81 (1987) (citation omitted). The court declines to address the Town's qualified official immunity argument at this time.

The Vermont Supreme Court appears to have clearly ruled that police officers responding to emergency calls are, by statute, not entitled to qualified immunity, and are potentially liable for recklessness, though not negligence. See generally Rochon v. State, 2004 VT.77,177 Vt 144 (discussing Morais and 23 V.S.A. § 1015); Morais v. Yee, 162 Vt. 366 (1994). Neither party in arguing for or against qualified immunity in this case addressed the significance of § 1015 as interpreted in Rochon and Morais, The court invites further briefing before a ruling on the issues of qualified immunity or recklessness.

Municipal sovereign Immunity

Ms Olsen alleges in the complaint that the Town is liable for "negligent training," referring to some training of Mr. Frey in how to operate a motor vehicle. There are no allegations in the complaint or elsewhere in the record explaining what the negligent act of training may have been or how it could have contributed to the collision.^[3] The Town, however, does not seek summary judgment due to. a lack of evidence. Rather, it argues that it retains sovereign immunity to this claim because the operation of a police force is a "governmental function" protected by municipal sovereign immunity.

The existence of municipal sovereign immunity depends on the governmental-proprietary dichotomy that, in Vermont, still is used to determine the breadth of a municipality's sovereign immunity. See Hillerby v. Town of Colchester, 167 Vt. 270,272 (1997) ("Traditionally courts have held, municipalities liable only where the negligent act arises out of a duty that is proprietary in nature as opposed to governmental.").

"Police work falls within the category of governmental functions. A municipality provides police services as part of the state's governmental responsibility toward the general public. Therefore, 'municipalities are immune from state law claims arising from injuries caused by the operation of their police departments.'" Livingston v. The Town of Hartford, No. 482-9-06 Wrcv, 2008 WL 8747703 (Vt. Super. Ct. Feb. 28,2008), quoting Decker v Fish, 126 F.Supp.2d 342, 346 (D. Vt. 2000); see also 18 McQuillin Mun. Corp. § 53:77.12 (3d...