Liability for dog bite is based on negligence.

Martin v. Christman, 2014 VT 55 (13-Jun-2014)

CRAWFORD, J. The single issue raised by this appeal is whether we should change the common-law rule requiring proof of a dog owner’s negligence as the sole basis for liability for personal injuries inflicted by the dog. In the face of longstanding precedent, both in Vermont and in the United States in general, we decline to change the substantive law by judicial decision.

The trial court granted defendants’ motion to dismiss the strict liability claim on the ground that Vermont precedent has long required proof of negligence to recover against a dog owner for damages caused by his or her dog. Godeau v. Blood, 52 Vt. 251 (1880). See Hillier v. Noble, 142 Vt. 552, 556, 458 A.2d 1101, 1104 (1983); Carr v. Case, 135 Vt. 524, 525, 380 A.2d 91, 93 (1977); Davis v. Bedell, 123 Vt. 441, 442-43, 194 A.2d 67, 68 (1963); Worthen v. Love, 60 Vt. 285, 286, 14 A. 461, 461 (1888).

In limiting recovery to cases of negligence, the dog-bite cases fall within the normal parameters of our tort law. O. Holmes, Jr., The Common Law 163 (Little, Brown & Co. 1946) (1881)(“ the defendant must have had at least a fair chance of avoiding the infliction of harm before he becomes answerable for such a consequence of his conduct.”)

These principles are generally followed in the United States. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 23 (2010). The overwhelming majority of those states that have adopted strict liability for dog bites have done so only by statute.

We see no reason to single out dog ownership for treatment that is different from that we apply to other human pursuits. If a change were warranted, it should be left to the Legislature. We are not prepared to depart from long-held principles of negligence to create a new field of strict liability.

Affirmed.

SCOVT note on strict liability at common law in Vermont. 

The Court today reaffirms its early rejection of strict liability in dog bite cases, noting that “With the exception of ultra-hazardous activities such as blasting and keeping dangerous animals, there is no liability without a breach of a duty of care based on the defendant’s conduct.” Martin v. Christman, 2014 VT 55, ¶ 10. 

The doctrine of strict liability for abnormally dangerous conditions and activities is a comparatively recent one in the law. See Bosley v. Central Vermont Public Service Corp., 127 Vt. 581, 582-85, 255 A.2d 671, 672-74 (1969). In Vermont the only recognized application of the doctrine involves blasting.

Here is a brief history.

The doctrine of absolute liability was jettisoned in Vermont as early as 1833 in the case of Lapham v. Curtis, 5 Vt. 371.

In Goupiel v. Grand Trunk Ry. Co., 94 Vt. 337, 343, 111 A. 346, a case involving a railroad torpedo, the Vermont Court rejected strict liability as a general doctrine.

Goupiel was recognized as good law as late as 1958, in Thompson v. Green Mtn. Power Corp., 120 Vt. 478, 482, 144 A.2d 786 (1958), a case involving dynamite and chickens. The Court said that the doctrine of absolute liability has not been accepted in this jurisdiction, citing Goupiel v. Grand Trunk R. Co., supra, 94 Vt. at page 343, 111 A. at page 348.

In Malloy v. Lane Construction Corporation, 123 Vt. 500, 194 A.2d 398 (1963) the Court overruled Goupiel v. Grand Truck Ry. Co., and adopted the doctrine of absolute liability in its application to the blasting operations. There “The shock waves of a blasting operation, travelling through air and ground, damaged the plaintiffs' dwelling house, according to their writ. The defendant construction company is named as the responsible agency, but its acts are not condemned as wrongful or negligent.” 194 A2d at 398-99. The Court accepted plaintiff’s’ argument that they ought not to be barred from recovery for their damage because there were no reasonable measures, short of abandoning the operation, that would have prevented injury to their property.

Surveying law elsewhere the Court said, “The use of dangerous explosives has been particularly subject to rules imposing strict liability….Negligence need not be demonstrated, but only the use of explosives and resulting damage.”

Malloy is the high water mark for Rylands v. Fletcher in Vermont.

In 1969 the Court expressly refused to extend the doctrine of strict or absolute liability, as recognized in Malloy, to accidents involving the transmission of electricity. Bosley v. Central Vermont Public Service Corp., 127 Vt. 581, 582-85, 255 A.2d 671, 672-74 (1969) .

In 1990 the Court also refused to extend the doctrine to public railroad crossings.Mobbs v. Cent. Vt. Ry., 155 Vt. 210, 218, 583 A.2d 566, 571 (1990).

In 2000 a case involve the escape of electicity from transmission lines came before the Court on a products liability theory. Darling v. Central Vt. Pub. Serv. Corp., 171 Vt. 565, 567, 762 A.2d 826, 828 (2000) Because the utility did not sell the electricity that allegedly caused the fire in this case, the Court held the doctrine of strict product liability did not apply. The issue of ultra-hazardous activities was not before the Court.

In Bosley  the Court explained that strict liability has been confined to things or activities which are "extraordinary", or "exceptional", or "abnormal". (citing Prosser on Torts, 3rd Ed. Strict Liability, section 77, page 520. ) The Court noted the Restatement of Torts, section 519, 520 accepts the principle of Rylands v. Fletcher, 3 Hurl & C 744 (1865), but has limited it to an "ultra-hazardous activity", defined as one which "necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care" and "is not a matter of common usage."

~ Zphx

Torts. Inspection by liability insurer was not an undertaking to assure workplace safety.

Murphy v. Sentry Insurance, 2014 VT 25 (07-Mar-2014)

Plaintiff  appeals from a superior court decision that vacated a jury verdict in her favor and entered judgment as a matter of law for defendant Sentry Insurance. Plaintiff contends that there was sufficient evidence to establish Sentry’s liability for her husband’s workplace death under the Restatement (Second) of Torts § 324A based on a negligent inspection theory. We affirm.

Decedent died after a forklift he was operating for his employer, Pete’s RV Center, tipped over. Plaintiff alleged that Sentry was negligent in its inspection because it failed to discover and warn Pete’s about the danger of using unapproved towing attachments. Under § 324A one who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

See Derosia v. Liberty Mutual Insurance Co., 155 Vt. 178, 182-83, 583 A.2d 881, 883 (1990). We agree with the trial court that plaintiff did not provide sufficient evidence here to support a finding in her favor under any of the subsections of § 324A.

To fall within § 324A(a) a party must engage in negligent conduct that “directly increases risk of harm.”  Mere negligence in failing to discover a danger does not subject the defendant to liability. Assuming that the risk of physical harm associated with the use of unapproved forklift attachments was present at the time of Sentry’s inspection, nothing Sentry did increased the risk of physical harm to decedent from such attachments. We agree with the trial court that Sentry’s liability cannot be premised on § 324A(a). 

In assessing a party’s liability under § 324A(b), one must examine the nature and extent of a party’s undertaking. Sentry was acting as a general liability insurer, not a workers’ compensation insurer. Sentry’s role in this case was nothing like that of the workers’ compensation insurer in Derosia.  The Sentry inspector walked through the premises with one of the owners of Pete’s, and took note of several obvious hazards. There was no evidence to show that the inspector undertook to inspect the forklift or the forklift attachment, nor evidence to show that the inspector undertook to inspect the entire physical premises to discover any safety hazards that might exist. Given the nature of his safety survey, no jury could reasonably have concluded that in conducting its inspection as Pete’s general liability insurer, Sentry thereby assumed any portion of Pete’s obligation to provide a safe workplace for the decedent. 

Any “reliance” under § 324A(c) must be reasonable. No reasonable employer could believe under the circumstances here that the Sentry inspector had identified all existing hazards on the premises or that he had implicitly approved the use of unauthorized towing attachments. Any reliance on the safety survey as approving the practice of using forklifts with unapproved attachments would be unreasonable as a matter of law.

 

Note. The Third Restatement now provides:

§ 43 Duty to Third Parties Based on Undertaking to Another

An actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to which a third person is exposed has a duty of reasonable care to the third person in conducting the undertaking if:

(a) the failure to exercise reasonable care increases the risk of harm beyond that which existed without the undertaking,

(b) the actor has undertaken to perform a duty owed by the other to the third person, or

(c) the person to whom the services are rendered, the third party, or another relies on the actor's exercising reasonable care in the undertaking.

Restatement (Third) of Torts: Phys. & Emot. Harm § 43 (2012). This Section replaces Restatement Second of Torts § 324A. Id. comment a. ~ Zphx

SCOVT ducks whether it is OK to ask if bar applicant has mental illness.

In re Hirsch, 2014 VT 28 (28-Mar-2014)

REIBER, C.J. Applicant appeals from a commissioner’s report recommending that he be denied admission to the Vermont bar on the basis of a current unfitness to practice law. Applicant challenges a number of Vermont admission practices and rules as violative of the Americans with Disabilities Act (ADA) and the U.S. and Vermont Constitutions. We adopt the commissioner’s recommendation, and deny the application for admission to the bar.

Applicant challenges questions 25 of the Vermont bar application: “25.Within the past five years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder?” The commissioner did not evaluate applicant’s arguments regarding the propriety of the application questions under the ADA and the U.S. and Vermont Constitutions, noting that their task was to make factual findings and recommendations, not to analyze legal claims. We need not address these claims either, as we conclude that the record amply supports the conclusion that applicant’s conduct, wholly apart from his mental health history or status, demonstrates his lack of fitness.

Homestead rights. Moving into husband-owned vacation home and filing for divorce did not give wife a “homestead” that precluded husband from refinancing mortgage.

Brattleboro Savings and Loan Association v. Hardie, 2014 VT 26 (21-Mar-2014)

DOOLEY, J. Plaintiff Brattleboro Savings and Loan Association appeals a superior court decision ruling that Mangini holds title to a property, free and clear of a mortgage to plaintiff. The superior court ruled that the mortgage was inoperative because Mangini’s husband, defendant Richard Hardie, mortgaged the property without the participation of Mangini in violation of 27 V.S.A. § 141(a). We reverse.

“A homestead or an interest therein shall not be conveyed by the owner thereof, if married, except by way of mortgage for the purchase money thereof given at the time of such purchase, unless the wife or husband joins in the execution ” 27 V.S.A. § 141(a).  The parties agree that § 141(a) would apply only if Mangini had a homestead exemption at the time that the new mortgage was created.

In 2002, Hardie borrowed $209,000 from Brattleboro Savings in order to purchase a vacation home. Hardie was married to Mangini at the time, but was the sole owner of the property, and Mangini did not sign either the promissory note or the mortgage. In April 2007, Mangini left the couple’s New Jersey home and moved into the vacation home. In February 2008, Mangini filed for divorce and claimed that the property had become her primary residence as of May 2007. The family court’s interim domestic order forbade either spouse to “remove, sell, assign, transfer, dispose of, lend, dissipate, mortgage or encumber any marital property. In April 2008, while Mangini was occupying the property and the divorce was pending, Hardie refinanced the mortgage on the property. The 2008 refinancing was completed without Mangini’s participation.

In January 2011, Brattleboro Savings commenced a foreclosure action on the property, naming only Hardie as a defendant. Mangini filed an answer asserting an affirmative defense that she had established a homestead interest in the property prior to the 2008 mortgage, and that therefore the 2008 mortgage was “inoperative to convey” her homestead interest. The court granted summary judgment in favor of Mangini, declaring the entire 2008 mortgage on the property unenforceable against Mangini.

The court reasoned that Mangini acquired an equitable interest in the property when she filed for divorce, thus fulfilling the dual requirement for establishing a homestead interest—occupancy and equitable title—as set out in Soter, 26 B.R. at 841 (holding that equitable or legal title is required to establish homestead exemption)

The issue is whether Mangini had an sufficient “equitable interest” at the time of the refinancing because the family court exercised jurisdiction over all of the marital property and she stood to be awarded any or all of it, regardless of which of the spouses held legal title.

We agree with Brattleboro Savings that Mangini did not acquire equitable title to the property by filing for divorce. Because Mangini did not acquire equitable title, she is not entitled to a homestead exemption from the 2008 mortgage, and the security created by the 2008 mortgage is valid against her.

27 V.S.A. § 101 requires that the property claimed as a homestead must be “owned” by the person claiming the exemption, and our precedents recognizing equitable-title interests must be viewed in that context. Equitable title is defined as “title that indicates a beneficial interest in property and that gives the holder the right to acquire formal legal title.” This is a rigorous definition—one that requires not just a possibility of acquiring title, but a concrete right. The jurisdictional statute on which the court relied, s 15 V.S.A. § 751, does not establish title or ownership in either party to a divorce. Its purpose is to give the court jurisdiction over all the property of the parties. Section 751 did not give Mangini equitable title to the property. Nor do we find that the family court’s injunction give either party a right to any item of property.

The trial court should have granted Brattleboro Savings’s motion for summary judgment with respect to Mangini’s claim of a homestead exemption, and denied Mangini’s motion.

BURGESS, J., concurring. I concur with the majority’s mandate as well as its underlying reasoning, but I also concur with Judge Bent’s opinion as an alternative basis for reversing the superior court summary judgment decisions.

BENT, Supr., J., Specially Assigned, concurring. I concur with the majority’s mandate because Mangini cannot rely upon 27 V.S.A. § 141(a) to avoid an existing mortgage that merely refinanced a debt on the homestead that existed before she established the homestead. I am concerned, however, with the implication in the majority’s opinion that spouses generally may not rely upon § 141(a) to avoid the consequences of a unilateral spousal conveyance unless they can prove an equitable interest equivalent to a contractual right to marital property owned solely by the conveying spouse. I believe that a more fundamental basis for rejecting Mangini’s reliance upon § 141(a) in the present circumstances is simply that the 2008 mortgage did not increase the debt existing at the time Mangini established a homestead in the Vermont property and thus may not be deemed inoperative under § 141(a).

Cause of fire not proved; fire investigator’s opinion excluded as unreliable.

Lasek v. Vermont Vapor, Inc., 2014 VT 33 (11-Apr-2014)


CRAWFORD, J. Plaintiff appeals the trial court's grant of judgment as a matter of law to defendants following a three-day jury trial in this negligence case. Plaintiff claims that the trial court erred in (1) excluding the testimony of plaintiff's expert witness on causation, (2) granting defendants' motion for judgment as a matter of law. We affirm.

The court excluded plaintiff's fire investigator's testimony pertaining to causation. The court explained that the fire investigator was not trained in chemistry, and did not know what chemicals were present, what their flammability or other characteristics were, or how they would interact with each other or flow through the air. The court noted that nicotine was present, but nicotine has a low flammability rating and is heavier than air. Even accepting that nicotine's properties could have been modified by a combination of other chemicals, there was no evidence of what the other chemicals were or how they would behave. The court concluded that the fire investigator could not offer his opinion regarding the cause of the fire because it did not meet the standards of Daubert and Rule 702.

"Proposed testimony must be supported by appropriate validation—i.e., `good grounds,' based on what is known." Daubert, 509 U.S. at 590. The trial court properly excluded the fire investigator's testimony because it was based on speculation. There was no evidence that chemicals were present in the lab in a quantity sufficient to ignite a flame at a space heater above and outside of the room on the night of the fire. Furthermore, the fire investigator was unable to offer a reliable explanation of how any nicotine vapors that were present would be able to travel up to the space heater because, as he conceded, nicotine vapors are heavier than air and would therefore tend to sink rather than rise. He opined that the combination of various chemicals might cause the vapors to rise, but admitted that he did not have a chemical engineering background and could not explain what mixture of chemicals might cause that to happen or whether it was likely to have occurred in this case. We agree with the trial court that the fire investigator's opinion about causation was not "based on sufficient facts or data," and was therefore unreliable. V.R.E. 702.

The trial court properly granted judgment as a matter of law in favor of defendants on plaintiff's claims of negligence. Without expert testimony on the issue of causation, plaintiff was unable to prove the use of liquid nicotine caused the fire. Without establishing the use of nicotine caused the fire, plaintiff also could not prove that landlord was negligent in leasing the space or in maintaining the leased space.

It was appropriate for the court to decline to apply res ipsa loquitur in this case. The doctrine of res ipsa loquitur allows an inference of negligence in certain cases, not causation. Established causation is a prerequisite to the application of the doctrine. Furthermore, plaintiff failed to show that a fire in a commercial warehouse is the sort of accident that ordinarily does not occur without negligence. See Metro. Prop. & Cas. v. Harper, 7 P.3d 541, 551 (Or. Ct. App. 2000) ("[R]es ipsa loquitur is not commonly applied to fires, because the cause of a fire is generally unknown [and] fires commonly occur where due care has been exercised as well as where due care was wanting." (quotation omitted)).

Attorney’s fees. Who prevailed? "Buckhannon" test rejected; “catalyst” theory applied.

 Bonanno v. Verizon Business Network Systems 2014 VT 24 (28-Feb-2014)

REIBER, C.J. Plaintiff appeals from the superior court’s grant of summary judgment against him and in favor of his employer on claims stemming from an alleged breach of a settlement agreement with employer regarding his workers’ compensation claim. On appeal, plaintiff contends that the trial court abused its discretion by awarding inadequate attorneys’ fees. Employer cross-appeals and argues that the trial court abused in its discretion by awarding any attorneys’ fees. We affirm the trial court in all respects.

Here, the relevant statutory provision is 21 V.S.A. § 675(a). The key question faced by the trial court was whether plaintiff “prevail[ed]” on his claim for purposes of the statute. The court found that plaintiff did prevail on his claim that defendants had improperly failed to pay plaintiff’s medical bill because defendants “ultimately agreed to pay the medical bill while the litigation was pending.”

Defendants argue that plaintiff did not obtain judicial relief from the court and thus was not entitled to any fees or costs. Defendants argue that this Court should adopt the U.S. Supreme Court’s holding in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), that eligibility for attorneys’ fees requires a “material alteration of the legal relationship of the parties” effectuated by court action, such as an enforceable judgment on the merits. Id. at 604-05 (quotation omitted). The U.S. Supreme Court rejected the “catalyst theory,” holding that a “defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.” Id. Defendants argue that plaintiff did not bring about an alteration of the legal relationship between the parties sufficient to prevail under Buckhannon,

Here, defendants’ decision to pay plaintiff’s medical bill was not brought about by judicial order or other action bearing “judicial imprimatur.” Id. Plaintiff cannot prevail under the Supreme Court’s reasoning in Buckhannon; thus, we are squarely faced with the decision of whether to apply Buckhannon in our interpretation of § 675(a).

In Merriam v. AIG Claims Services, Inc., 2008 VT 8, ¶¶ 16, 22, 183 Vt. 568, 945 A.2d 882 (mem.), we expressly declined the opportunity to overrule our prior case law endorsing the catalyst theory. We take this opportunity to extend our holding in Merriam and explicitly preserve the catalyst theory as a possible route to attorneys’ fees under § 675(a).

To prevail for purposes of the catalyst theory, a party must demonstrate: (1) that the filing of the lawsuit was a “necessary and important factor in achieving” the other party’s change in conduct, and (2) a “colorable or reasonable likelihood of success on the merits.” Here, we agree with the trial court that defendants paid plaintiff’s medical bill as a direct result of plaintiff’s lawsuit to enforce the terms of the settlement agreement pursuant to 21 V.S.A. § 675(a). There is little doubt that plaintiff’s lawsuit was the catalyst for defendants’ action. As to the second factor,plaintiff’s claim was not “frivolous, unreasonable, or groundless” as a matter of law.

Plaintiff contends that the trial court’s grant of $1000 in attorneys’ fees and $250 in costs for prevailing on the medical bill issue was unreasonable, given the “time and effort” that counsel expended on the litigation. Trial courts have ample discretion in determining the amount of attorneys’ fees to award, and we will not disturb the court’s decision unless it has abused this discretion. Here, the trial court reduced the award from plaintiff’s requested $17,932.50 to $1000 in fees and $250 in costs. The court noted that the unpaid medical bill was a peripheral issue compared to the rest of the litigation, and that plaintiff did not provide the discovery supporting payment until compelled by the court. we hold that the peripheral nature of the medical bill issue and plaintiff’s unnecessary delay in providing discovery provide ample reason to affirm the court’s decision.


Affirmed.

 How cited

SCOVT allows relitigation of final decision addressing exclusive "jurisdiction" of divisions of Superior Court

Cameron v. Rollo 2014 VT 40 (25-Apr-2014)

CRAWFORD, J. This case presents a single legal issue: whether the family division has exclusive jurisdiction over the distribution of marital property acquired during a marriage that ends in annulment. First the family division ruled that "[s]ince the marriage was void at its beginning, this court does not have jurisdiction to resolve this dispute. Then the civil division held that the civil division and the small claims court lacked jurisdiction over the division of marital property. We granted permission to appeal to review the legal question of which court has jurisdiction to distribute property under the circumstances of this case. We affirm the decision of the civil division in this case that exclusive jurisdiction over the parties’ property division is conferred by statute to the family division.

This idea that a marriage annulled on grounds of bigamy is void from its inception underlies the family division's refusal in this case to divide the parties' property. But the Legislature extended the remedy of property division to the parties to an annulment when it provided for property division in all cases filed under Chapter 11 of Title 15. 15 V.S.A. § 751(a). Chapter 11 of Title 15 encompasses annulment, divorce, and legal separation.

The statutory grant of jurisdiction to the family division is exclusive. There is no "overlapping jurisdiction—matters that belong in family court may not be brought in superior court." Rogers v. Wells, 174 Vt. 492, 494, 808 A.2d 648, 650 (2002) (mem.). Section 31(1) of Title 4, recently enacted as part of the unification of the judiciary, excludes from the civil division cases that are subject to the jurisdiction of the family division. See also 4 V.S.A. § 33(4).

We have not conistently maintained this  boundary between the family and civil division in property disputes. Compare Tudhope v. Riehle, 167 Vt. 174, 178-80, 704 A.2d 765, 767-68 (1997) with Slansky v. Slansky, 150 Vt. 438, 442, 553 A.2d 152, 154 (1988), The boundary, however, is clear when the issue is whether marital property belongs to one spouse or the other.  By holding that the family division has exclusive jurisdiction over the division of marital property, we seek to discourage overlapping cases in both courts.

DOOLEY, J., dissenting. To the majority this case is about subject matter jurisdiction over property disputes in annulment actions, an issue that will rarely, if ever, rise again. In my opinion, this case is really about the preclusive effect of subject matter jurisdiction determinations. The issue the majority chooses to address is legitimate, but the issues it largely ignores are critical and command a different result. Thus, I dissent.

Reducing the case to its essentials, plaintiff alleges that the person to whom he thought he was married  stole his property while he was incarcerated. This is a conversion action with respect to property owned by plaintiff and possessed at one time by defendant but not in either's possession at the time of the annulment. I consider it debatable whether the conversion action is exclusively within the jurisdiction of the family division. See LaPlume v. Lavallee, 2004 VT 78, ¶¶ 8-9, 177 Vt. 526, 858 A.2d 255 (holding that plaintiff's claim for money damages against former partner for retention of property was conversion claim subject to jurisdiction of small claims court).  But we need not, and should not, reach that question

We made a great stride forward in ensuring finality of judgments against lack-of-subject-matter-jurisdiction claims where the question of subject matter jurisdiction has already been litigated by adopting the Restatement (Second) of Judgments § 12 (1982). See Quinn v. Schipper, 2006 VT 51, ¶ 8, 180 Vt. 572, 908 A.2d 413 (mem.). Under § 12  a judgment generally precludes relitigation of subject matter jurisdiction in subsequent litigation. Restatement (Second) of Judgments § 12 (1982)(indicating a party is foreclosed from litigating subject matter jurisdiction in a subsequent lawsuit unless the decision on jurisdiction was "a manifest abuse of authority," the judgment at issue "would substantially infringe the authority of another tribunal," or the rendering court was incapable of making an adequately informed assessment of its own jurisdiction and procedural fairness would require the party seeking to avoid the judgment to have the opportunity to belatedly attack jurisdiction).

None of the exceptions apply. To say that the family division's ruling was "so plainly beyond the court's jurisdiction that its entertaining the action was a manifest abuse of authority" creates an exception to issue preclusion so broad as to eat up the rule and bring us back to the days of raising lack of subject matter jurisdiction over and over. The family division ruling may have been wrong, but it is not a manifest abuse of discretion, a clear usurpation of power, or a ruling without an arguable basis.  Restatement (Second) of Judgments § 12(1).

Ineffective assistance of counsel harmless because no “reasonable probability” that petitioner would have received a different sentence.

 In re Allen, 2014 VT 53 (23-May-2014).

SKOGLUND, J. Petitioner appeals from the trial court’s order granting summary judgment to the State on his petition for post-conviction relief (PCR). He argues that the court applied improper legal standards in reaching its decision on his ineffective-assistance-of-counsel claim. We affirm.

We conclude, as a matter of law, that there is no reasonable probability that, but for counsel’s alleged unprofessional errors, the result of the sentencing proceeding would have been different. A “reasonable probability is a probability sufficient to undermine confidence in the outcome.” [This does not require a showing that counsel's actions "more likely than not altered the outcome," but] in assessing prejudice for purposes of an ineffective-assistance-of-counsel claim, "[t]he likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 131 S. Ct 770, 792 (2011).

DOOLEY, J., dissenting.  In deciding the prejudice question as a matter of law, the court ignored perhaps the most fundamental principle of the summary judgment standard: that the trial court must view the facts most favorably to the nonmoving party and afford that party—in this case petitioner—the benefit of all reasonable doubts and inferences. Based on the record before us, a reasonable judge, viewing the evidence and all inferences favorably to petitioner, could conclude that petitioner met his burden of showing a reasonable likelihood that his sentence would have been different had his attorney not engaged in what we must presume to be ineffective assistance of counsel. For this reason, the case should be remanded for an evidentiary hearing.

SCOVT denies summary judgment - even though non-movant failed to file statement of disputed fact - because moving party’s statement itself showed material facts were in dispute.

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

CRAWFORD, J. Plaintiff sued the Town of Irasburg alleging that the selectboard had acted unlawfully in ordering her, as town treasurer, to raise her bond to $1,000,000. She sought monetary damages based on common law defamation, tortious interference with office, violation of the Vermont Constitution, and deprivation of due process. In several different orders, the trial court granted the Town summary judgment on all counts. Plaintiff appealed. We affirm in part, and reverse and remand in part.

Like the rules concerning default judgment, the procedure of Rule 56 “should be liberally construed in favor . . . of resolving litigation on the merits, to the end that fairness and justice are served.”

The court based its decision largely on procedural grounds, concluding that plaintiff had failed to adequately oppose summary judgment. In effect, the court sanctioned plaintiff with dismissal of the case for failing to appropriately reference the record in her response to summary judgment even though the record in this case, clearly demonstrates the presence of contested facts. We conclude that the procedural grounds for granting the motion were inadequate.

Vermont Rule of Civil Procedure 56(c), as amended effective January 23, 2012, sets out a mandatory procedure for demonstrating that “a fact cannot be or is genuinely disputed.” V.R.C.P. 56(c)(1). The party asserting that a fact is not disputed must file “a separate and concise statement of undisputed material facts” with citations to the record. V.R.C.P. 56(c)(1)(A). The rule allows an adverse party to file an opposition and statement of disputed facts, and requires a party asserting a fact is genuinely disputed to support the assertion by filing a statement of disputed facts supported by citation to record. V.R.C.P. 56(b), (c)(1) (a).

The Town was the moving party. Its Rule 56(c) statement of undisputed facts was very brief. The Town attached plaintiff’s affidavit and her July 1, 2010 letter. There is no concise statement of the undisputed facts which would support the Town’s argument that plaintiff was neither defamed nor forced unlawfully out of office.

Plaintiff did not file a statement of disputed facts with reference to the record or in some other way show that the materials cited by the Town did not establish the absence of a factual dispute.

The court ruled that plaintiff as the nonmoving party had failed to properly demonstrate issues of material fact because her response to summary judgment was not supported by affidavit, deposition or other sworn testimony.

Grant of summary judgment to the Town based solely on plaintiff’s failure to adequately respond was error for two main reasons. First, because the Town failed to provide a proper statement of undisputed facts with citations to the record demonstrating an absence of any controverted material fact, the burden did not shift to plaintiff to show the existence of disputed facts. See Pierce v. Riggs, 149 Vt. 136, 138, 540 A.2d 655, 656-57 (1987) (explaining burden does not shift to nonmoving party until moving party meets its burden of showing absence of dispute over material fact).

Second, plaintiff was not required to submit new evidence in support of her opposition where evidence already in the record supported her position. See V.R.C.P. 56(c)(3) (allowing court to consider material in record even if not cited in required statement of facts). Since plaintiff’s critical evidence—the July 1, 2010 letter and plaintiff’s affidavit—were both attached to the Town’s motion for summary judgment, it was readily apparent that disputed issues of fact existed between the parties.

***

Note. Decades ago the Court held "the failure to respond does not require an automatic summary judgment; rather, two requirements must be met: (1) the supporting materials must be both formally and substantively sufficient to show the absence of a fact question, and (2) summary judgment must be appropriate in the sense that the moving party is entitled to judgment as a matter of law." Miller v. Merchants Bank, 138 Vt. 235, 238, 415 A.2d 196, 198 (1980). The new Rule 56 now gives several options when a party fails to properly support or address a fact:

(e) Failing to Properly Support or Address a Fact. -- If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may:

(1) give an opportunity to properly support or address the fact;

(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it; or

         (4) issue any other appropriate order.

V.R.C.P.56(e).

Deeds. Error is not ambiguity. Elements of reformation not proved.

Brault v. Welch, 2014 VT 44 (16-May-2014)

SKOGLUND, J. Plaintiffs Brault appeal from the trial court’s order granting judgment to defendant in this dispute over a right-of-way. The Braults argue that the court should have found an ambiguity in the description of the right-of-way because it was a simple scrivener’s error that misstated which side of the wall the easement is on. We affirm.

The language of the deed is not ambiguous. The Braults would read the word “southerly” to mean “northerly.” This does not comport with the deed’s plain language. The fact that the grantor may not have owned the land southerly of the block wall does not render the language at issue ambiguous. Because this language is unambiguous, it must be enforced as written.

Even if the circumstances surrounding the grant of the easement created some initial ambiguity as to the language employed, the “construction” offered by the Braults requires the Court to rewrite, rather than merely construe, the words of the deed. Specifically, it demands that the Court insert the word “northerly” in place of the word “southerly.” A result so at odds with the actual language of a deed is rightly accomplished through the remedy of reformation.

Deed reformation is appropriate where, through mistake, language does “not represent the actual conveyance intended by the parties” The Braults cannot meet the necessary standard of proof because they failed to introduce evidence regarding the circumstances of the drafting of the deed. There was no evidence to explain the sellers’ understanding of boundary lines. There was no evidence to show what circumstances led to the use of the word “southerly thereof” in the deed, and no evidence of a prior agreement between the parties concerning the easement. Therefore, there was no basis on which the court could reform the deed.

Appeals. Standard of review of intermediate appeal from an administrative body.

In re ANR Permits in Lowell Mountain Wind Project, 2014 VT 50 (23-May-2014)

Appellants Energize Vermont, Inc. and several individuals challenge the Vermont Public Service Board (PSB)’s affirmance of a permit issued by the Agency of Natural Resources (ANR), approving an operational-phase stormwater management plan for appellee Green Mountain Power (GMP). The only issue maintained on appeal to this Court is the narrow one of whether ANR complied with certain requirements of its own Vermont Stormwater Management Manual (VSMM) in granting the operational-phase permit. Because we are not persuaded that ANR’s interpretation of the VSMM is irrational or unreasonable in relation to its intended purpose, we affirm.

This case is resolved by the standard of review that applies in appeals from the PSB sitting in its appellate capacity. This is the first appeal from another agency heard by the PSB pursuant to 10 V.S.A. § 8506. In appeals from the PSB’s decisions made within its original jurisdiction, we accept as true all of the PSB]’s findings that are not clearly erroneous, and, in reviewing the PSB’s conclusions, we defer to its particular expertise and informed judgment. This case, however, concerns an appeal from the PSB within its appellate capacity and not within its original jurisdiction.

Where there is an intermediate appeal from an administrative body, this Court reviews the case under the same standard as applied in the intermediate appeal. Travia’s Inc. v. Dep’t of Taxes, 2013 VT 62, ¶ 12, ___ Vt. ___, 86 A.3d 394. In the intermediate appeal the PSB gives substantial deference to ANR’s interpretation of its own regulations— “Absent a clear and convincing showing to the contrary, decisions made within the expertise of such agencies are presumed correct, valid and reasonable.” This deferential standard remains on appeal, even after the PSB holds a de novo hearing on the matter. Appellants therefore bear the burden here of showing that ANR’s interpretation is “wholly irrational and unreasonable in relation to its intended purpose.”

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.