Peters v. State

• Citation: 636 A.2d 340,161 Vt. 582
• Decision Date: 19 November 1993
• Docket Number: No. 93-004,93-004
• Parties: Donna PETERS, et al. v. STATE of Vermont.
• Court: United States State Supreme Court of Vermont

Page 340

636 A.2d 340

161 Vt. 582

Donna PETERS, et al. v. STATE of Vermont.

No. 93-004.

Supreme Court of Vermont.

Nov. 19, 1993.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

ENTRY ORDER

Lawrence Peters died as the result of an accident on Route 125 in East Middlebury, Vermont, on February 3, 1988. His widow, on behalf of herself, the estate, and the minor children, brought a wrongful death action against the State of Vermont, alleging that the State was negligent in the placement of warning signs on the highway. She claimed that the State waived immunity for the negligence under 12 V.S.A. § 5601(a) ^* of the Vermont Tort Claims Act.

The State moved for summary judgment on the ground that placement of warning signs on state highways is a uniquely governmental function for which no private analog exists, and therefore, there was no waiver of sovereign immunity. The trial court agreed and granted summary judgment for the State. Plaintiff moved for reconsideration, which the court denied, and this appeal followed. We reverse.

In reviewing a motion for summary judgment, we use the same standard as that used by the trial court. Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. V.R.C.P. 56(c); State v. Delaney, 157 Vt. 247, 252, 598 A.2d 138, 141 (1991). Here, the State conceded, for purposes of its motion, that it was negligent in the placement of warning signs on Route 125 and that this negligence caused the death of Lawrence Peters. The issue on appeal, therefore, is whether the State was entitled to judgment as a matter of law.

Plaintiff contends that the facts conceded by the State are comparable to situations where a private citizen may be sued, and therefore, a private analog does exist. We agree. In LaShay v. Department of Social & Rehabilitation Services, 160 Vt. 60, ---, 625 A.2d 224, 229 (1993), we held that the Department of Social and Rehabilitation Services (SRS) was not immune from liability for negligently placing and supervising a child in foster care. We found that private individuals or entities may also place and supervise children in foster care, and may be liable for negligence "comparable" to that asserted by the plaintiff; therefore, a "comparable" cause of action could be brought against SRS. Id.; see also Denis Bail Bonds, Inc. v. State, 159 Vt. 481, ---, 622 A.2d 495, 498 (1993) ("threshold issue [under 12 V.S.A. § 5601(a) ] is whether plaintiff's factual allegations ... satisfy the necessary elements of a cause of action against the State comparable to one that may be maintained against a private person").

In the present case, too, a private analog exists where plaintiff's claim against the State is comparable to recognized causes of action that may be brought against private persons who own or control roads. See Department of Hwys. & Pub. Transp. v. Bacon, 754 S.W.2d 279, 281 (Tex.Ct.App.1988) (in plaintiff's action against state for failing to warn of icy conditions, "[t]he duty owed by the State is the same as the duty owed by a private person to a licensee on private property"); cf. Restatement (Second) of Torts § 342 comment d, illustration 2 (1965) (where A owns road and invites B to drive on that road, A liable for failure to warn B of dangerous condition); id. § 367 (private liability for dangerous condition on land appearing to be highway); Reider v. City of Spring Lake Park, 480 N.W.2d 662, 667 (Minn.Ct.App.1992) (church liable for motorcyclist's injuries suffered in striking unmarked barricade because of inadequate signage on private road); Ridge v. Grimes, 53 N.C.App. 619, 281 S.E.2d 448, 450 (1981) (jury could find that developer, by undertaking to construct road in subdivision knowing public would use it as public road, incurred duty to plaintiff to maintain road in safe condition "and to give adequate warning of any contrary condition"); Wolfe v. Union Pacific R.R., 230 Or. 119, 368 P.2d 622, 625 (1962) (where plaintiff mistook private road for public road and drove down steep embankment after unmarked sharp left turn, jury could conclude failure to erect warning sign or barricade at curve was negligent conduct); Baran v. Pagnotti Enterprises, Inc., 402 Pa.Super. 298, 586 A.2d 978, 983 (1991) (jury question whether owner of private road and strip-mine pit exercised reasonable care to warn public of danger, where decedent drove off road into pit).

The State contends that its immunity is waived only if a private individual would be liable under the "same circumstances," pointing out that the use of the word "same" in Vermont's statute constitutes a "critical distinction" from the Federal Tort Claims Act. Compare 12 V.S.A. § 5601(a) with 28 U.S.C.A. § 2674 ("The United States shall be liable ... in the same manner and to the same extent as a private individual under like circumstances...." (emphasis added)). In this case, according to the State, the "same circumstances" would require that a private individual negligently place a warning sign on a state road. Since the duty to erect appropriate signs on state roads is conferred on the Agency of Transportation only, 19 V.S.A. § 10(7), private individuals have no...