Nursing negligence. Summary judgment for defense where plaintiff had no expert.

Taylor v. Fletcher Allen Health Care,  2012 VT 86 (Skoglund, J.) (Dooley, J., joined by Robinson, J., concurring and dissenting.)

Plaintiff Sally J. Taylor sued Fletcher Allen Health Care (FAHC) for medical negligence and negligent infliction of emotional distress, in connection with her medical care following a surgery. A nurse was assisting plaintiff in moving to the bathroom when plaintiff alleges that the nurse "withdrew support and assistance . . . unexpectedly and without warning and caused [p]laintiff to fall violently on to the toilet." After plaintiff failed to disclose any expert witness in response to discovery requests, FAHC moved for summary judgment, arguing that plaintiff’s claims failed as a matter of law without an expert witness.  The trial court granted FAHC’s motion.  We agree with the trial court that this case is sufficiently complex that plaintiff cannot prove her claims without expert testimony.  Accordingly, we affirm.

Whether a gait belt should have been used in this case or whether the use of a gait belt could have prevented her drop onto the toilet is beyond the ken of a layperson. There are countless variables that could explain the lack of a gait belt, and only testimony from an expert familiar with general nursing practices and the details of plaintiff's medical record would enable a jury to make an informed decision as to whether FAHC breached its duty of care by not using a gait belt in this case. ...Our holding here is limited to the unique facts of this case given the specificity of plaintiff's argument that the nurse failed to use a specific tool and technique and that the drop was the cause of the need for the second surgery. Those claims are outside of the experience of typical lay person's understanding.

Dooley, J., concurring and dissenting,  concurs in the dismissal of plaintiff's claims that FAHC was negligent in its failure to recognize and diagnose the problems with the hardware and in its treatment of the pain complaints as well as her claim for negligent infliction of emotional distress. I do not concur with the dismissal of the claim that FAHC was negligent when plaintiff fell while attended by a nurse. The majority unnecessarily transforms a routine hospital-fall case into a complex medical-malpractice action requiring expert evidence.

Workers compensation death benefit. No set-off for life insurance.

 Estate of Dunn v. Windham Northeast Supervisory Union, 2012 VT 91 (Reiber, C.J )

This case asks us to determine whether a workers’ compensation insurer is entitled to reimbursement of death benefits it has paid when a claimant’s beneficiary also receives proceeds from a life-insurance policy.  We hold that under 21 V.S.A. § 624(e) a workers’ compensation carrier cannot seek reimbursement from life-insurance payments because such proceeds are not “damages,” as contemplated by the statute, paid because of a third party’s tortious actions.  We therefore affirm the Commissioner of Labor’s grant of summary judgment to the estate of claimant.

Arbitration. Court reverses ruling that court can decide arbitrability in the midst of an arbitration.

Bandler  v. Charter One Bank,  2012 VT 83 (Robinson, J.) 

This case presents the question of whether the superior court has authority to review questions regarding arbitrability in the midst of an arbitration, and outside of the specific review provisions in the Vermont Arbitration Act (VAA).  We conclude that it does not, and reverse the superior court’s ruling concerning the arbitrability of class claims in this case.

Municipal immunity bars claim of negligent tax assessment. Estoppel claim not proven.

Sobel v. City of Rutland, 2012 VT 84 (Burgess, J.)              

Plaintiff owners of an office building appeal the superior court’s grant of summary judgment for defendant municipality. Plaintiffs claim the municipal assessor was negligent in providing inaccurate property tax estimates on the proposed, but not yet built, office.  Plaintiffs also sought to enjoin enforcement of the tax assessment on the office building ultimately constructed.  On appeal, they argue that the court erred in concluding, on summary judgment, that their negligence claim was barred by municipal immunity and that they failed to establish equitable estoppel. We affirm.

Municipal immunity protects municipalities "from tort liability in cases where the municipality fulfills a governmental rather than a proprietary function." Governmental functions are those performed when a municipality "exercise[s] those powers and functions specifically authorized by the Legislature, as well as those functions that may be fairly and necessarily implied or that are incident or subordinate to the express powers." Proprietary activities, on the other hand, are, essentially, commercial activities performed by a municipality in its corporate capacity, for the benefit of the municipality and its residents, and unrelated to its "legally authorized activity." Plaintiffs admit that the estimates here were sought from the Assessor in his official capacity.  But for his office plaintiffs would not haveinquired. Tax estimates thus  elicited solely on account of the Assessor’s official position are reasonably treated as governmental, as opposed to proprietary, activity, that entitle the municipality for immunityfrom suit stemming from the Assessor's estimates.

We also conclude that plaintiffs cannot establish the elements of equitable estoppel: (1) the party to be estopped must know the facts; (2) the party being estopped must intend that its conduct be acted upon; (3) the party asserting estoppel must be ignorant of the true facts; and (4) the party asserting the estoppel must rely on the conduct of the party to be estopped to its detriment.

Defective construction claim dismissed: Economic loss rule bars recovery for negligence; privity rule bars recovery for breach of warranties.

 Long Trail House Condominium Association, v. Engelberth Construction, Inc., 2012 VT 80 (Skoglund, J.)

Plaintiff Condominium Association appeals from the trial court's order granting summary judgment to defendant general contractor Engelberth Construction, Inc. on the Association’s complaint that Engelberth in constructing the project was negligent and breached express and implied warranties. The Association argues that the court erred by: (1) applying the economic loss rule to bar its negligence claim; and (2) dismissing its breach of warranty claim because of lack of privity. We affirm.

The economic loss rule "prohibits recovery in tort for purely economic losses." EBWS,LLC v. Britly Corp., 2007 VT 37, ¶ 30, 181 Vt. 513, 928 A.2d 497. The rule serves to maintain a distinction between contract and tort law. Id. We require actual injury, not simply risk of harm, before one can recover in negligence. Privity, or lack thereof, is not the determining factor. The rule's application does not turn on whether the parties had the opportunity to allocate risks. The existence of a duty, apart from a contractual duty, is a prerequisite to recovery of economic damages in a negligence case. That critical element is lacking in the instant case.  The "professional services" exception to the economic loss doctrine does not apply.  Foreseeability alone is not sufficient to warrant the imposition of a professional duty. We have twice rejected the notion that contractors owed a special duty of care for purposes of this exception, separate and apart from their contractual obligations.  Engelberth presented itself as a contractor and it operated as a contractor, not as a provider of a specialized professional service. 

Our case law plainly contemplates the existence of contractual privity before a breach of implied warranty claim can be raised. The Association's warranty remedy lies against the entity that sold it the condominium units and implicitly warranted through the sale that the units were built in a good and workmanlike manner and that they were suitable for habitation. Its remedy does not lie against Engelberth.

Note: Only two regular members of the Court sat on this case, Skoglund and Burgess, JJ.. These two joined by Davenport, Supr. JJ., formed the majority, with Kupersmit, Supr. JJ., and Johnson, J. (Ret.), dissenting.