Employment. Town not liable for tortious iterference with Town treasurer’s contract.

 Stone v. Irasburg, Town of 2014 VT 43 (25-Apr-2014)

CRAWFORD, J. Plaintiff Linda Stone sued the Town of Irasburg alleging tortious interference with office. The trial court granted the Town summary judgment. Plaintiff appealed. We affirm.

Tortious interference generally refers to interference with performance of an existing contract or a prospective contractual relationship. See Restatement (Second) of Torts § 766 (2013). Under this tort, a person is liable if he “intentionally and improperly interferes with the performance of a contract . . . between another and a third person by inducing or otherwise causing the third person not to perform the contract.” Id.

While plaintiff styles her claim as one for “tortious interference with performance of office,” there is no such enumerated tort in our case law, or in the law of other jurisdictions. The closest analogy, although imperfect, is tortious interference in the employment context, which has been recognized in some states. While the elements are described by courts in various ways, under any definition of this tort, the interference with the contract or prospective advantage must come from a third party.

Here, to the extent that we can apply tortious interference with an employment relationship to plaintiff’s allegation of tortious interference with performance of her office, we conclude that plaintiff has failed to meet the elements of that tort. Plaintiff alleges that selectboard members interfered with plaintiff’s performance of her duties as treasurer. Because the selectboard members are agents of the Town and not third parties, plaintiff has failed to allege interference by a third party, and has not pled a prima facie case for tortious interference.

Therefore, the court was correct to grant judgment to the Town on this count.

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Note: Vermont precedent not cited in this opnion says the tort of interference with contract is applicable in limited situations against other employees or officers of the plaintiff's employer who act outside the scope of their employment to further their own interests. Murray v. St. Michael's College, 667 A.2d 294, 164 Vt. 205 (1995) (summary judgment in favor of supervisor appropriate in the absence of any allegation by plaintiff that supervisor acted outside the scope of his employment or in his own personal interest in dealing with plaintiff); Lyon v. Bennington College Corp., 137 Vt. 135, 138-39, 400 A.2d 1010, 1012-13 (1979) (claim against officers of college for inducing college to break its contract with plaintiff presented viable tort claim because the gravamen of the complaint was that the individual defendants acted in their individual capacities, and was not an attempt to impose liability for good faith acts within the scope of corporate duties). See generally Annotation, Liability of Corporate Director, Officer, or Employee for Tortious Interference with Corporation's Contract with Another, 72 A.L.R. 4th 492 (1989) (stating circumstances in which courts have allowed plaintiffs to bring contractual interference suits against other employees of plaintiffs' employer); Restatement (Second) of Torts § 767 (1979) (stating circumstances in which courts have allowed plaintiffs to bring contractual interference suits against other employees of plaintiffs' employer); Restatement (Second) of Torts § 767 (1979) (stating factors for court's consideration in determining whether defendants' actions are "improper" so as to make defendants liable under contractual interference claim); e.g. Shea v. Emmanuel College, 425 Mass. 761, 682 N.E.2d 1348 (1997), (court properly granted summary judgment against terminated college employee's interference of contract action against her former supervisor because employee failed to create genuine issue of material fact as to whether former supervisor had acted with actual malice in arranging for her discharge); Hickman v. Winston County Hosp. Bd., 508 So.2d 237 (Ala.1987), (courts have held that claim of tortious interference with former employee's contract of employment cannot be maintained against officers or employees of a corporation unless those persons were acting outside their scope of employment and were acting with actual malice); Murray v. Bridgeport Hosp., 40 Conn.Supp. 56, 480 A.2d 610 (1984),(although an agent acting legitimately within the scope of agent's authority cannot be held liable for interfering with or inducing principal to breach a contract between principal and a third party, an agent can be held liable for such interference or inducement if agent did not act legitimately within the agent's scope of duty but used the corporate power improperly for personal gain); Holloway v. Skinner, 898 S.W.2d 793 (Tex.1995), (on an interference with contract claim a plaintiff must show that the officer of a corporation defendant acted in a fashion so contrary to the corporation's best interests that the officer's actions could only have been motivated by personal interests).

Murder: provocation as defense. Plain error.

State v. Bolaski 2014 VT 36 (25-Apr-2014)


DOOLEY, J. Defendant Kyle Bolaski appeals from his conviction for second-degree murder after a jury trial. He argues that the trial court erred in not instructing the jury that, to find second-degree murder, the jury had to find an absence of passion or provocation. We reverse and remand for a new trial.

Defendant and others arrived at the ball field at around 7 p.m. on August 17, 2008. Soon after defendant’s truck arrived, the victim arrived with his girlfriend and her friend. The group, including defendant, started approaching the victim’s car, engaging in shouting with the victim. They were unarmed. The victim exited his vehicle holding a taser and sparking it. The group continued to approach. The victim then threw the taser into the car and pulled out a splitting maul from the back seat.  He raised it and charged at the approaching group, which scattered and ran away. For unknown reasons, the victim chose to chase defendant to his truck that was some distance away. Once they reached the truck, the victim began hitting the truck with the maul. Defendant was able to enter the truck, where he obtained a rifle. Under highly disputed circumstances, defendant twice shot the victim, once in the leg and once in the buttocks. The victim bled to death from the second shot. Defendant admitted to having fired the two shots, but maintained that he acted in self-defense.

Our relevant substantive law is clear: “Where passion or provocation is implicated, the court must instruct the jury that to establish murder the State must prove beyond a reasonable doubt that the accused did not kill under the influence of passion or provocation.” The Reporter’s Notes for the Vermont Model Jury Instructions for Second Degree Murder explain that “lack of provocation” is not “an essential element that must always be proven in a prosecution for second degree murder,” but “in a proper case involving substantial evidence of provocation, the lack of provocation becomes an essential element that the state will have to prove beyond a reasonable doubt.” Available at http://vtjuryinstructions.org. The second-degree murder charge did not explain that the existence of passion or provocation would mean that second-degree murder had not been proven. Defense counsel did not object, and the jury found defendant guilty of second-degree murder.

In this case there was ample evidence that defendant acted under provocation such as to sustain a verdict of voluntary manslaughter. The fact that the jury rejected defendant’s claim of self-defense does not undermine this conclusion.

 It was undisputed that the victim chased defendant with a splitting maul. Virtually all witnesses, including defendant, testified to the fear that the victim’s actions engendered. Various witnesses testified to acts of extreme provocation. The critical events occurred in a very short period of time, with little opportunity for defendant to cool off. We upheld a verdict of voluntary manslaughter under similar circumstances in a case where defendant relied upon self-defense. See State v. Boglioli, 2011 VT 60, ¶ 8, 190 Vt. 542, 26 A.3d 44 (mem.).

There is a substantial likelihood that the jury would have found that defendant acted under the influence of provocation and rendered a similar verdict here, but the jury instructions prevented a verdict based on that finding.

In these circumstances, the elimination of the opportunity for the jury to find voluntary manslaughter, and not murder, was prejudicial to defendant. We conclude that the jury instruction caused a miscarriage of justice that affected the fairness of the trial. We cannot uphold the resulting verdict, even though defendant did not object to the jury instruction.

Family Division has no authority to award visitation or joint custody. Welfare of the animal must be considered in final disposition.

Hament v. Baker 2014 VT 39 (25-Apr-2014)

CRAWFORD, J. The only issue in this contested divorce was which spouse should receive the family dog. Belle is an eleven-year-old German wirehaired pointer who is greatly loved by husband and wife. The parties have no minor children, and they were able to reach an agreement on the division of their property and other financial issues. They came to the final hearing for a ruling on which one of them would receive the dog in the divorce decree.

On appeal, wife claims that the court erred in refusing to consider allocating the dog to both spouses in a joint arrangement. She also argues that the court failed to enforce the parties’ temporary agreement to share their time with the dog. We affirm the family court decision on two grounds. The factors identified and considered by the court in allocating the dog were appropriate. The court was also correct in its statement that the family division cannot enforce a visitation or shared custody order for animals.

We hold first that the allocation of a pet in a divorce is subject to 15 V.S.A. § 751. In contrast to a child, a pet is not subject to a custody award following a determination of its best interests. Because a pet is property, the family division must assign it to one party or the other. Like other aspects of the property division, the assignment is final and generally not subject to modification.

This Court has consistently ruled that pet animals are property. Scheele v. Dustin, 2010 VT 45, ¶ 8, 188 Vt. 36, 998 A.2d 967; see also Goodby v. Vetpharm, Inc., 2009 VT 52, ¶ 7, 186 Vt. 63, 974 A.2d 1269 (holding that no tort recovery allowed for emotional damages following loss of pet). But pets are different from other property. They are alive and form emotional attachments with their owners that run in both directions. Their long and intimate association with people gives rise to special concerns for their well-being and humane treatment. See, e.g., Morgan v. Kroupa, 167 Vt. 99, 103, 702 A.2d 630, 633 (noting that value of most pets is primarily emotional rather than financial). Morgan recognized the emotional value of a dogs well as the value our society places on the humane treatment of animals. The dog in that case remained “property,” but his disposition was governed by concerns for animal welfare. Id. at 104-05, 702 A.2d at 634.

We hold that the family division may consider the welfare of the animal and the emotional connection between the animal and each spouse. Evidence concerning welfare of the animal includes evidence about its daily routine, comfort, and care. Evidence concerning the emotional connection may include testimony about the role of the animal in the lives of the spouses. In this case, the parties were afforded an opportunity to put on evidence regarding both factors without restriction. While the family court could consider both welfare and emotional ties in awarding the dog to one of the parties, it had discretion to decide what weight to give to these factors.

The court’s specific findings about Belle and her owners are supported by the evidence. The factors the court considered—the dog’s welfare and its emotional relationship with the parties—are the same factors that we recognize today as appropriate for the resolution of similar questions in the future. Accordingly, we affirm the court’s decision to assign ownership of the dog to husband.

Finally, we disagree with wife’s contention that the court had authority to impose an enforceable visitation order for the dog. Unlike child custody matters, there is no legislative authority for the court to play a continuing role in the supervision of the parties with respect to the care and sharing of a companion animal. Accordingly, we agree with the court below that even if submitted by stipulation, an agreement to share custody of the family dog or other pet would be unenforceable in the family division. The enforcement of such agreements falls outside of the jurisdiction of the family division over the distribution of marital property.


Affirmed.