Rubin v. Town of Poultney, No. 97-479.

Docket NºNo. 97-479.
Citation721 A.2d 504
Case DateOctober 28, 1998
CourtUnited States State Supreme Court of Vermont

721 A.2d 504

Rebecca RUBIN
v.
TOWN OF POULTNEY, et al

No. 97-479.

Supreme Court of Vermont.

October 28, 1998.


721 A.2d 505
Before AMESTOY, C.J., and DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ

ENTRY ORDER

Plaintiff Rebecca Rubin appeals the Rutland Superior Court's grant of summary judgment in favor of defendants Town of Poultney, Poultney's town constable, Douglas Bishop, and Poultney's town manager, Jonas Rosenthal, on her negligent failure to protect claim.1 We affirm.

The parties do not dispute the facts. Richard and Sheila Fleury's dog, Ben, bit plaintiff when she jogged past their home in the Town of Poultney. Two days prior to the incident, the town manager received reports that the dog had been roaming the streets frightening people. The reports did not allege that the dog had bitten anyone. In response to the reports, the town manager and the town constable visited the Fleurys' residence to advise them to keep their dog tied up. The next day, the town manager sent a letter to the Fleurys again advising them of the complaints and giving them notice that the town selectmen would take action in the event the dog bit someone. The day after the town manager sent the letter, the dog bit and injured plaintiff. The dog was not tied up at the time of the incident.

Plaintiff brought suit against defendants, claiming negligent failure to protect her from the Fleurys' dog. The court granted defendants' motion for summary judgment, holding that this case did not trigger defendants' statutorily prescribed duty to take action to protect the general public from dogs that bite. See 20 V.S.A. § 3546.2 The court further

721 A.2d 506
held that defendants were not negligent under plaintiff's alternative theories of common law negligence liability

In reviewing a grant of summary judgment, this Court applies the same standard as the trial court. See Madden v. Omega Optical, Inc., 165 Vt. 306, 309, 683 A.2d 386, 389 (1996). Summary judgment should be granted when, taking all allegations made by the nonmoving party as true, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See id. To survive summary judgment, the nonmoving party must demonstrate sufficient evidence to support a prima facie case. State v. G.S. Blodgett Co., 163 Vt. 175, 181-82, 656 A.2d 984, 988 (1995).

By statute, town officials have a duty to investigate if the town receives three written complaints that a dog, while off the premises of the owner, has bitten a person. 20 V.S.A. § 3546(a), (b). If the town finds the animal bit the person without provocation, the town has a duty to protect people by ordering the animal muzzled, chained, confined, or disposed of in a humane way. Id. § 3546(c). On appeal, plaintiff relies, not on the Town's statutorily-imposed duty, but on common law negligence.

To prevail in a common law negligence action, a plaintiff must demonstrate that the defendant owed a legal duty to the plaintiff, the duty was breached, the breach constituted the proximate cause of plaintiff's harm, and plaintiff suffered actual...

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17 practice notes
  • Deveneau v. Wielt, No. 14–330.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 4, 2016
    ...issues of material fact and the moving party is entitled to judgment as a matter of law.” Rubin v. Town of Poultney, 168 Vt. 624, 625, 721 A.2d 504, 506 (1998) (mem); V.R.C.P. 56(a). ¶ 8. Our question on appeal is: What duty, if any, runs from Toomey, as noncustodial landowner, to plaintiff......
  • Cyr v. United States, Case No. 5:10-cv-194
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • June 21, 2011
    ...claim must fail absent a legal duty running from the defendant to the plaintiff, see Rubin v. Town of Poultney, 168 Vt. 624, 625, 721 A.2d 504, 506 (1998). The Government offers two arguments as to why it owed no duty to Plaintiff in this case. First, it argues that the parking lot in which......
  • Gross v. Turner, No. 18-018
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 10, 2018
    ...for a jury to find that Flores undertook to control the dogs after they exited the house. See Rubin v. Town of Poultney, 168 Vt. 624, 626, 721 A.2d 504, 506 (1998) (mem.) (holding town officers' warnings to dog owners to confine their dog was insufficient basis to prove that officers volunt......
  • DJ PAINTING v. Baraw Enterprises, No. 99-401.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 11, 2001
    ...Baraw through the taping and painting services, and that Baraw did accept this benefit. See Rubin v. Town of Poultney, 168 Vt. 624, 625, 721 A.2d 504, 506 (1998) (mem.) (on summary judgment we take all allegations made by the nonmoving party as true). Even assuming that plaintiff's work was......
  • Request a trial to view additional results
17 cases
  • Deveneau v. Wielt, No. 14–330.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 4, 2016
    ...issues of material fact and the moving party is entitled to judgment as a matter of law.” Rubin v. Town of Poultney, 168 Vt. 624, 625, 721 A.2d 504, 506 (1998) (mem); V.R.C.P. 56(a). ¶ 8. Our question on appeal is: What duty, if any, runs from Toomey, as noncustodial landowner, to plaintiff......
  • Cyr v. United States, Case No. 5:10-cv-194
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • June 21, 2011
    ...claim must fail absent a legal duty running from the defendant to the plaintiff, see Rubin v. Town of Poultney, 168 Vt. 624, 625, 721 A.2d 504, 506 (1998). The Government offers two arguments as to why it owed no duty to Plaintiff in this case. First, it argues that the parking lot in which......
  • Gross v. Turner, No. 18-018
    • United States
    • Vermont United States State Supreme Court of Vermont
    • August 10, 2018
    ...for a jury to find that Flores undertook to control the dogs after they exited the house. See Rubin v. Town of Poultney, 168 Vt. 624, 626, 721 A.2d 504, 506 (1998) (mem.) (holding town officers' warnings to dog owners to confine their dog was insufficient basis to prove that officers volunt......
  • DJ PAINTING v. Baraw Enterprises, No. 99-401.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 11, 2001
    ...Baraw through the taping and painting services, and that Baraw did accept this benefit. See Rubin v. Town of Poultney, 168 Vt. 624, 625, 721 A.2d 504, 506 (1998) (mem.) (on summary judgment we take all allegations made by the nonmoving party as true). Even assuming that plaintiff's work was......
  • Request a trial to view additional results

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