Roman Catholic Diocese of Vermont, Inc. v. City of Winooski Housing Authority

Decision Date17 October 1979
Docket NumberNo. 8-79,8-79
PartiesThe ROMAN CATHOLIC DIOCESE OF VERMONT, INC. v. CITY OF WINOOSKI HOUSING AUTHORITY.
CourtVermont Supreme Court

J. William O'Brien and Paul R. Morwood, Burlington, for plaintiff.

Gilbert Myers, Essex Junction, for defendant.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

BARNEY, Chief Justice.

This is an interlocutory appeal raising the issue of sovereign immunity. The question arose out of the denial of a motion for summary judgment, treated by the trial court as a motion to dismiss, made by the defendant City of Winooski Housing Authority. The motion did not involve any of the other defendants.

Since this is a ruling based on V.R.C.P. 56, the matter is to be reviewed on the basis of the pleadings, affidavits and associated documentation referred to in the rule. An affidavit from the executive director of the Winooski Housing Authority reveals that no aspect of sovereign immunity has been waived by the purchase of liability insurance under the authority of 29 V.S.A. § 1403.

The complaint asserts that the Housing Authority undertook, through certain contracting parties, also defendants, to build a multi-story building for housing for the elderly. This construction took place on land purchased from the plaintiff and adjacent to St. Stephen's Rectory, also belonging to the plaintiff. It is claimed that the construction operations damaged the rectory both through vibrations from pile driving and through interference with the lateral support for the foundations and walls of the rectory. Substantial damages are claimed, but the issue before us is limited to the question of sovereign immunity.

The defendant Authority begins by asking for a holding that it is governmentally immune because it is a governmental entity created by statute to carry out an express legislative purpose. This states the policy too broadly. Marshall v. Town of Brattleboro, 121 Vt. 417, 424, 160 A.2d 762, 766-67 (1960), states that, at most, the doctrine of sovereign immunity as applied to municipal corporations should be limited to those activities of the municipalities so necessary and so vital to the inhabitants that the municipality ought to be immune from liability for the methods it uses in performing such functions. It points out that there has been an extension of municipal activities into fields once felt to be inappropriate for governmental bodies.

Indeed the whole concept of sovereign immunity, particularly as applied to municipalities, has been many times challenged, both from the validity of its origin based on Russell v. The Men of Devon, 2 Durn. & E. 667, 100 Eng.Rep. 359 (1788), and from the standpoint of justifying policy. See, e. g., Note, Torts Abrogation of Sovereign Immunity Scope of Retained Immunity, 43 Mo.L.Rev. 387 (1978); see generally Merrill v. City of Manchester, 114 N.H. 722, 332 A.2d 378 (1974). There can be no doubt that its effect is to sacrifice the injured citizen to the benefit of the public treasury. Insofar as the policy originated in court opinion, its justification in terms of current circumstances would be properly reviewable by the judicial branch.

However, the policy has had some legislative recognition in 29 V.S.A. § 1403. That section reads:

When the state or a department or board purchases a policy of liability insurance under the provisions of section 1401 of this title, and when a municipal corporation purchases a policy of liability insurance under section 1092 of Title 24, and when a county purchases a policy of liability insurance under the...

To continue reading

Request your trial
7 cases
  • Hillerby v. Town of Colchester
    • United States
    • Vermont Supreme Court
    • November 26, 1997
    ...This Court has applied the governmental/proprietary distinction for decades. See, e.g., Roman Catholic Diocese of Vt., Inc. v. City of Winooski Hous. Auth., 137 Vt. 517, 520, 408 A.2d 649, 651 (1979) (municipal housing project is proprietary activity not entitled to immunity); Lemieux v. Ci......
  • Gretkowski v. City of Burlington
    • United States
    • U.S. District Court — District of Vermont
    • July 9, 1998
    ...legislature intended to cloak this function with governmental immunity. Id. at 4-5. Citing Roman Catholic Diocese of Vermont, Inc. v. Winooski Housing Authority, 137 Vt. 517, 519, 408 A.2d 649 (1979), I stated that this reads legislative intent too broadly. Id. at 5. In Roman Catholic Dioce......
  • Jacobs v. STATE TEACHERS'RET. SYS. OF VT
    • United States
    • Vermont Supreme Court
    • September 6, 2002
    ...subordinates the interests of injured citizens to those of the public treasury. See Roman Catholic Diocese of Vt., Inc. v. City of Winooski Hous. Auth., 137 Vt. 517, 519, 408 A.2d 649, 650 (1979). Such criticisms have weakened the doctrine, see 1 Civil Actions Against State and Local Govern......
  • Libercent v. Aldrich
    • United States
    • Vermont Supreme Court
    • November 6, 1987
    ...of the essential factors, rather than helpful guides to classification...." Roman Catholic Diocese of Vermont, Inc. v. City of Winooski Housing Authority, 137 Vt. 517, 520, 408 A.2d 649, 651 (1979). However, taking the facts alleged in the complaint as true for purposes of this opinion, Wil......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT