Torts. Respondeat superior. Chartiable and volunteer immunities. No undertaking by officer of social club to protect one guest from another.

Buxton v. Springfield Lodge No. 679, Loyal Order of Moose, Inc., 2014 VT 52 (23-May-2014)

DOOLEY, J. Plaintiff appeals two superior court decisions in this personal-injury negligence action: (1) an order dismissing all claims against defendant Robert Merrill, Sr., in his individual capacity, on summary judgment, and (2) an order granting partial judgment as a matter of law during trial, concluding that any liability of defendant Springfield Lodge No. 679, Loyal Order of Moose, Inc., could not be predicated on the action or inaction of Mr. Merrill, Sr., its governor. We affirm both decisions.

Plaintiff, a party guest, was injured during a New Year’s Eve party hosted by the Springfield Lodge when a fight broke out between two other party guests. Merrill, Sr., the governor of the Lodge, was present.   In this position, Merrill, Sr. was an unpaid volunteer. This case turns on whether Merrill, Sr. owed a duty to plaintiff to take some action to prevent the fight that caused plaintiff’s injury.

Plaintiff asserts that Merrill, Sr. voluntarily assumed the responsibilities assigned to the governor and in doing so undertook “to render services to [the Lodge] . . . which he should recognize as necessary for the protection of a third person.” Restatement (Second) of Torts § 324A (1965). Whatever duty Merrill, Sr. undertook as governor, it did not include the duty plaintiff asserted. Nothing in Merrill, Sr.’s relevant responsibilities as governor suggests that the governor has a personal responsibility to prevent the misconduct of others on Lodge property or to warn staff about impending misconduct. Plaintiff did not articulate a viable theory under which the governor of the Lodge had a duty of care towards the Lodge’s New Year’s Eve party guests or a duty to control Merrill, Jr. The trial court’s summary judgment decision dismissing the claims against Merrill, Sr. is correct in its result.

We note that Merrill, Sr. is a voluntary officer of the Moose Lodge serving without compensation. To the extent that plaintiff alleges that Merrill, Sr.’s personal liability should be premised on his good-faith, but negligent, execution of his official duties as a volunteer officer of a tax-exempt organization, such personal liability is prohibited by statute unless he was grossly negligent or committed an intentional tort. 12 V.S.A. § 5781(1); see also 42 U.S.C. § 14503 (limiting liability for volunteers under federal law). The record does not show whether the Lodge is a tax-exempt organization, and neither party has cited the statute. For these reasons, we do not rely upon it. We note, however, that if the statute applies, this is exactly the type of litigation that the statute was intended to prevent.

This statutory tort immunity for individual volunteers is not mirrored by any tort immunity for tax-exempt organizations in Vermont, so it has no bearing on the Lodge’s liability for Merrill, Sr.’s actions. See generally Foster v. Roman Catholic Diocese of Vt., 116 Vt. 124, 137, 70 A.2d 230, 237 (1950) (refusing to adopt the charitable-immunity doctrine for organizations).

The definition of respondeat superior is “[t]he doctrine holding an employer or principal liable for the employee’s or agent’s wrongful acts committed within the scope of the employment or agency.” Black’s Law Dictionary 1338 (8th ed. 2004). In other words, respondeat superior, or vicarious liability, requires the agent to commit some wrongful act—a tort or contract violation, for instance—for which the principal could also be held liable. Alleging respondeat superior based on tort requires a prima facie showing of all elements of the agent’s tort, including the agent’s legal duty. Since Merrill, Sr. committed no wrongful act or failure to act, the Lodge cannot be held liable for his actions or inactions. Thus, the trial court should have also awarded the Lodge summary judgment on plaintiff’s claims that the Lodge was liable based on Merrill, Sr.’s negligence.