Monday, January 28, 2019
SCOVT affirms summary judgment for defendant in premises liability case for lack of evidence of notice of the hazard and, thus, of causation.
Jay Bernasconi v. City of Barre: Hope Cemetery, 2019 VT 6 [filed 1/25/2019]
ROBINSON, J. Plaintiff Jay Bernasconi appeals from the Superior Court’s grant of summary judgment to defendant City of Barre. Plaintiff fell into a hole and injured his knee while visiting family graves at Hope Cemetery, which the City owns. He contends that the City’s negligent maintenance of the Cemetery caused his injury. We conclude that even if the City was negligent in its inspection and maintenance practices, because plaintiff produced no evidence from which it is possible to determine how long the hole existed, he cannot show that the City would have found the hole if it followed different inspection and maintenance practices. Thus, he cannot establish that any breach of the City’s duty of care caused his injuries. We accordingly affirm
While causation is ordinarily a question for the jury, where a reasonable jury could not find that the defendant caused the plaintiff harm, a court must award judgment as a matter of law. See Collins v. Thomas, 2007 VT 92, ¶ 8 (“Although proximate cause ordinarily is characterized as a jury issue, it may be decided as a matter of law . . . where all reasonable minds would construe the facts and circumstances one way.” (quotations omitted)).
Even assuming that the City was not sufficiently diligent in inspecting for holes, without evidence as to how long the hole existed, plaintiff cannot prove that any lack of diligence by the City in failing to timely inspect for and repair holes caused his injury. In that respect, this case is analogous to Maciejko v. Lunenberg Fire District No. 2, 171 Vt. 542, 758 A.2d 811 (2000) (mem.) (without a finding as to how long an obstruction had been in a sewer main, the court erred in holding that the defendant’s lack of a maintenance plan or policy was the proximate cause of a backup.)
The facts that the workers did not always cover or report holes that they found, that City workers knew about the hole the day after plaintiff’s accident, and that one smiled and said “Call your lawyer” when plaintiff told them he had fallen in it the day before, are together not enough evidence for a reasonable jury to find that the City knew about the hole before the accident. That evidence supports only “conjecture, surmise or suspicion” that the City’s negligence caused plaintiff’s injury, and so is legally insufficient.
Because plaintiff has not offered sufficient evidence to establish causation, his claim for negligence fails.
SCOVT NOTE : As a general rule, "In order to impose liability for injury to an invitee by reason of the dangerous condition of the premises, the condition must have been known to the owner or have existed for such a time that it was his duty to know it." Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 264 A.2d 796, 799 (1970), quoting Dooley v. Economy Store, Inc., 109 Vt. 138, 142, 194 A. 375, 377, and Wakefield v. Levin, 118 Vt. 392, 397, 110 A.2d 712.
Forcier, however, announced a "business practice" exception that relieves plaintiffs of having to prove that a retail business owner had notice of a foreseeably dangerous condition caused by self-service operations. See Randall v. K-Mart Corp., 150 F.3d 210, 213 (2d Cir.1998). Under Vermont law, the existence of a reasonably foreseeable dangerous condition created by self-service retail operations effectively notifies the store owner of the dangerous condition, making the critical issue whether the store owner responded reasonably to protect its customers from the danger. Malaney v. Hannaford Bros. Co. 2004 VT 76 ¶ 13, 861 A. 2d 1069. The modification of premises liability law in slip-and-fall cases involving self-service retail stores — as endorsed Forcier — was aimed at relieving plaintiffs of the nearly insurmountable burden of proving how long the dangerous condition had existed. Id. ¶ 18.
Query whether plaintiffs should be relieved of this impossible burden in situations other than the self-service operation?
Friday, January 25, 2019
SCOVT holds that a direct private right of action for damages based on violations of Article 11 (Search and Seizure ) is available against the State, but only if the violation is flagrant.
Gregory W. Zullo v. State of Vermont, 2019 VT 1 [filed January 4, 2019] How cited
EATON, J. In this civil rights action against the State of Vermont, plaintiff seeks declaratory relief and money damages for alleged violations of Article 11 of the Vermont Constitution arising from the stop, seizure, and search of his vehicle. The civil division of the superior court granted summary judgment to the State, concluding that although damages may be obtained in an implied private right of action directly under Article 11, in this case neither the stop, the exit order, nor the seizure and search of plaintiff’s vehicle violated Article 11’s constraints against governmental searches and seizures We agree that a direct private right of action for damages based on alleged flagrant violations of Article 11 is available against the State, but reverse and remand to give the parties an opportunity to address the elements of a direct action under Article 11 as established in this opinion
At issue in this appeal is: (1) whether Article 11 provides a self-executing right of action for damages; (2) whether the Vermont Tort Claims Act (VTCA) governs any such action and, if not, whether the common law doctrine of sovereign immunity shields the State from liability; (3) if the action is neither governed by the VTCA nor barred by sovereign immunity, whether this Court should impose any limitations on obtaining damages against the State; and (4) assuming a damage remedy exists and plaintiff can potentially overcome any other barriers to obtaining damages against the State, whether the stop, exit order, and/or seizure and search of plaintiff’s vehicle violated plaintiff’s rights under Article 11, thereby entitling him to seek such relief.
In September 2014, plaintiff filed suit against the State, alleging four counts of violations of Article 11 of the Vermont Constitution: (1) an unlawful traffic stop without reasonable suspicion of any traffic violation; (2) an unlawful exit order without reasonable suspicion of danger or the commission of a crime; (3) an unlawful seizure of his car without probable cause; and (4) an unlawful search of his car without probable cause. He sought a declaration that Trooper Hatch’s actions were illegal, an award of damages for the violations of his rights, and an award of costs.
II. The Vermont Tort Claims Act and Sovereign Immunity. We first address the State’s argument that no private right of action may be implied directly under Article 11 because the State has not waived its sovereign immunity to any such action either under the VTCA or any other legislation. Given the VTCA’s silence as to constitutional torts and the absence of any comparable private analog, we conclude that the Act’s statutory waiver of sovereign immunity against certain civil tort claims does not apply here. However in light of the reasoning in our prior caselaw discussed, we conclude that the common law doctrine of sovereign immunity is not an absolute jurisdictional bar to Vermont courts considering constitutional tort actions.
III. Implied Private Right of Action Directly Under Article 11 We must first consider whether the constitutional provision at issue is self-executing in the sense that it is specific enough to support an action against the state or state officials absent implementing legislation. Shields v. Gerhart, 163 Vt. 222, 237, 658 A.2d 924, 927 (1995). If that hurdle is cleared, we must then “determine whether monetary damages are available as a remedy for a violation” because of the absence of any viable alternative remedy. Id. Article 11 unequivocally sets forth a single specific right of the people to be free from unwarranted searches and seizures of their persons, possessions, and property, that provision is manifestly self-executing. none of the alternatives to a compensatory remedy proffered by the State can substitute as a viable remedy for someone subjected to an allegedly unconstitutional search or seizure, most particularly in a case like this where plaintiff was not charged with a crime. However, we conclude that, in the absence of any applicable legislation addressing constitutional torts, restrictions akin to qualified immunity are appropriate and necessary in civil actions seeking damages for violations of Article 11: a plaintiff seeking damages against the State directly under Article 11 based on a law enforcement officer’s alleged violation of that constitutional provision must show that: (1) the officer violated Article 11; (2) there is no meaningful alternative remedy in the context of that particular case; and (3) the officer either knew or should have known that the officer was violating clearly established law or the officer acted in bad faith.
In sum, we conclude that a direct private right of action for damages based on alleged flagrant violations of Article 11 is available against the State. The common law doctrine of sovereign immunity does not preclude such an action, even though the VTCA is not applicable. A plaintiff must show either a violation of clearly established law, which the actor knew or should have known he or she was violating, or bad faith, which may take the form of discriminatory animus. In this particular case, we conclude that the stop and seizure of plaintiff’s car constituted violations of Article 11. Accordingly, we reverse the superior court’s summary judgment ruling in favor of the State. Because the parties heretofore have not had the opportunity to address the elements of a direct action under Article 11 as established in this opinion, we remand the matter to give them an opportunity to file renewed motions for summary judgment, if they so choose. We make no pronouncement at this juncture as to whether the facts of this case are sufficient or insufficient to survive a renewed motion for summary judgment.
The superior court’s dismissal of plaintiff’s count 4 in its March 10, 2015 decision and its grant of summary judgment to the State in its May 10, 2017 decision are reversed; the matter is remanded for further proceedings consistent with this opinion.
SCOVT NOTE Re: Vermont constitutional torts, sovereign and qualified immunity.
The following clauses of the Vermont Constitution are self-executing:
In adopting this "limiting principle" the Zullo Court rejected the view of the trial court that that there is no need for a heightened standard of proof to secure damages under Article 11 because Article 11 provides its own standard—the unreasonable exercise of authority by a state actor.
The Court also noted but rejected the view of other State courts that have held qualified immunity does not apply to suits against the State. Clea v. Mayor and City Council of Balt., 541 A.2d 1303, 1314 (Md. 1988) ("To accord immunity to the responsible government officials, and leave an individual remediless when his constitutional rights are violated, would be inconsistent with the purposes of the constitutional provisions."); Dorwart, 2002 MT 240, ¶¶ 68-69 (holding that qualified immunity is not applicable to claims alleging violation of rights guaranteed by state constitution because it would be inconsistent with constitutional requirement that courts afford remedy for claims recognized by law).
At bottom the limiting principle was necessary because "of our need to be cautious when judicially recognizing potential damage liability to be imposed on another branch of government. Id., ¶ 53 ( citing D. Dobbs et al., The Law of Torts § 334, at 331 (2d ed. 2011) (retaining limited immunity prevents judicial branch from intruding upon functions of legislative and executive branches through adjudication of tort suits)). The common law ability to award damages for constitutional violations:
In sum, the Zullo Court held that a direct private right of action for damages is available against the State but only for the most flagrant and patently unjustified violations of Article 11. See id, ¶84
EATON, J. In this civil rights action against the State of Vermont, plaintiff seeks declaratory relief and money damages for alleged violations of Article 11 of the Vermont Constitution arising from the stop, seizure, and search of his vehicle. The civil division of the superior court granted summary judgment to the State, concluding that although damages may be obtained in an implied private right of action directly under Article 11, in this case neither the stop, the exit order, nor the seizure and search of plaintiff’s vehicle violated Article 11’s constraints against governmental searches and seizures We agree that a direct private right of action for damages based on alleged flagrant violations of Article 11 is available against the State, but reverse and remand to give the parties an opportunity to address the elements of a direct action under Article 11 as established in this opinion
At issue in this appeal is: (1) whether Article 11 provides a self-executing right of action for damages; (2) whether the Vermont Tort Claims Act (VTCA) governs any such action and, if not, whether the common law doctrine of sovereign immunity shields the State from liability; (3) if the action is neither governed by the VTCA nor barred by sovereign immunity, whether this Court should impose any limitations on obtaining damages against the State; and (4) assuming a damage remedy exists and plaintiff can potentially overcome any other barriers to obtaining damages against the State, whether the stop, exit order, and/or seizure and search of plaintiff’s vehicle violated plaintiff’s rights under Article 11, thereby entitling him to seek such relief.
In September 2014, plaintiff filed suit against the State, alleging four counts of violations of Article 11 of the Vermont Constitution: (1) an unlawful traffic stop without reasonable suspicion of any traffic violation; (2) an unlawful exit order without reasonable suspicion of danger or the commission of a crime; (3) an unlawful seizure of his car without probable cause; and (4) an unlawful search of his car without probable cause. He sought a declaration that Trooper Hatch’s actions were illegal, an award of damages for the violations of his rights, and an award of costs.
II. The Vermont Tort Claims Act and Sovereign Immunity. We first address the State’s argument that no private right of action may be implied directly under Article 11 because the State has not waived its sovereign immunity to any such action either under the VTCA or any other legislation. Given the VTCA’s silence as to constitutional torts and the absence of any comparable private analog, we conclude that the Act’s statutory waiver of sovereign immunity against certain civil tort claims does not apply here. However in light of the reasoning in our prior caselaw discussed, we conclude that the common law doctrine of sovereign immunity is not an absolute jurisdictional bar to Vermont courts considering constitutional tort actions.
III. Implied Private Right of Action Directly Under Article 11 We must first consider whether the constitutional provision at issue is self-executing in the sense that it is specific enough to support an action against the state or state officials absent implementing legislation. Shields v. Gerhart, 163 Vt. 222, 237, 658 A.2d 924, 927 (1995). If that hurdle is cleared, we must then “determine whether monetary damages are available as a remedy for a violation” because of the absence of any viable alternative remedy. Id. Article 11 unequivocally sets forth a single specific right of the people to be free from unwarranted searches and seizures of their persons, possessions, and property, that provision is manifestly self-executing. none of the alternatives to a compensatory remedy proffered by the State can substitute as a viable remedy for someone subjected to an allegedly unconstitutional search or seizure, most particularly in a case like this where plaintiff was not charged with a crime. However, we conclude that, in the absence of any applicable legislation addressing constitutional torts, restrictions akin to qualified immunity are appropriate and necessary in civil actions seeking damages for violations of Article 11: a plaintiff seeking damages against the State directly under Article 11 based on a law enforcement officer’s alleged violation of that constitutional provision must show that: (1) the officer violated Article 11; (2) there is no meaningful alternative remedy in the context of that particular case; and (3) the officer either knew or should have known that the officer was violating clearly established law or the officer acted in bad faith.
In sum, we conclude that a direct private right of action for damages based on alleged flagrant violations of Article 11 is available against the State. The common law doctrine of sovereign immunity does not preclude such an action, even though the VTCA is not applicable. A plaintiff must show either a violation of clearly established law, which the actor knew or should have known he or she was violating, or bad faith, which may take the form of discriminatory animus. In this particular case, we conclude that the stop and seizure of plaintiff’s car constituted violations of Article 11. Accordingly, we reverse the superior court’s summary judgment ruling in favor of the State. Because the parties heretofore have not had the opportunity to address the elements of a direct action under Article 11 as established in this opinion, we remand the matter to give them an opportunity to file renewed motions for summary judgment, if they so choose. We make no pronouncement at this juncture as to whether the facts of this case are sufficient or insufficient to survive a renewed motion for summary judgment.
The superior court’s dismissal of plaintiff’s count 4 in its March 10, 2015 decision and its grant of summary judgment to the State in its May 10, 2017 decision are reversed; the matter is remanded for further proceedings consistent with this opinion.
The following clauses of the Vermont Constitution are self-executing:
Prohibition of slavery, Article 1: See Slavery: In Re Vermont Constitution Of 1777, As Regards Its Adoption, And Its Declaration Forbidding Slavery; And The Subsequent Existence Of Slavery Within The Territory Of The Sovereign State ,Vt. Reports, Volume 9. [An Address Delivered By Chief Justice Watson Before The Vermont Bar Association At Its Annual Meeting Held At Montpelier on January 4, 1921]
Inverse condemnation--takings, Article 2: See Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201, 762 A.2d 1219 (2000); Nesti v. Agency of Transportation, 2023 VT 1
Due process, Article 4: See Nelson v. Town of Johnsbury Selectboard, 2015 VT 5, ¶ 52, 198 Vt. 277, 300, 115 A.3d 423, 438 (2015).
Common benefits, Article 7: See Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999); In re Town Highway No. 20, 2012 VT 17, ¶ 34, 191 Vt. 231, 252, 45 A.3d 54, 67 (2012.)
Search and Seizure, Article 11. Zullo v. State 2019 VT 1
Free speech, Article 13: See Shields v. Gerhart, 163 Vt. 219, 227, 658 A.2d 924, 930 (1995). Pease v. Windsor Dev. Review Bd., 2011 VT 103, ¶¶ 30-31, 190 Vt. 639, 646, 35 A.3d 1019, 1028–29 (2011).
The following clauses are not self executing:
Happiness and safety, Article 1: Shields v. Gerhart, 163 Vt. 219, 658 A.2d 924, 928 (1995) (Article 1 does not establish an enforceable property right; happiness and safety clause merely expresses fundamental principles); accord Sabia v. State, 164 Vt. 293, 669 A.2d 1187, 1199 (1995); Benning v. State, 641 A.2d 757 (1994).
Inverse condemnation--takings, Article 2: See Okemo Mountain, Inc. v. Town of Ludlow, 171 Vt. 201, 762 A.2d 1219 (2000); Nesti v. Agency of Transportation, 2023 VT 1
Due process, Article 4: See Nelson v. Town of Johnsbury Selectboard, 2015 VT 5, ¶ 52, 198 Vt. 277, 300, 115 A.3d 423, 438 (2015).
Common benefits, Article 7: See Baker v. State, 170 Vt. 194, 744 A.2d 864 (1999); In re Town Highway No. 20, 2012 VT 17, ¶ 34, 191 Vt. 231, 252, 45 A.3d 54, 67 (2012.)
Search and Seizure, Article 11. Zullo v. State 2019 VT 1
Free speech, Article 13: See Shields v. Gerhart, 163 Vt. 219, 227, 658 A.2d 924, 930 (1995). Pease v. Windsor Dev. Review Bd., 2011 VT 103, ¶¶ 30-31, 190 Vt. 639, 646, 35 A.3d 1019, 1028–29 (2011).
The following clauses are not self executing:
Happiness and safety, Article 1: Shields v. Gerhart, 163 Vt. 219, 658 A.2d 924, 928 (1995) (Article 1 does not establish an enforceable property right; happiness and safety clause merely expresses fundamental principles); accord Sabia v. State, 164 Vt. 293, 669 A.2d 1187, 1199 (1995); Benning v. State, 641 A.2d 757 (1994).
Officers
Servants of the People, Article 6:Welch v. Seer., 138 Vt. 126, 128, 411 A.2d 1351, 1352 (1980) (Article 6 is but a truism of a republican form of
government, and provides no private right of action.); accord Rutland Herald v.
Vermont State Police, 2012 VT 24, 191 Vt. 357, 49 A.3d 91 (2012).
This issue of whether sovereign immunity bars a constitutional tort claim against the government was first addressed in In re Town Highway No. 20, 2012 VT 17. There the Court determined that the Common Benefits Clause in Article 7 of the Vermont Constitution provides a self-executing private right of action, and that litigants may recover monetary relief for such a claim. This case involved a selectboard's repeated and relentless bias against the plaintiffs, which the Court held invidiously discriminated in violation of due process and Article 7.
The Court rejected a defense of complete immunity because it is inconsistent to recognize a constitutional tort while simultaneously granting immunity . Id. ¶ 58 (Citing Corum v. Univ. of N.C., 330 N.C. 761, 785, 413 S.E.2d 276, 291(1992). ("It would indeed be a fanciful gesture to say on the one hand that citizens have constitutional individual civil rights that are protected from encroachment actions by the State, while on the other hand saying that individuals whose constitutional rights have been violated by the State cannot sue because of the doctrine of sovereign immunity.") ).
The Court, however, required a showing of actual malice or bad faith to recover monetary relief in any constitutional-tort claim based on a violation of Article 7. The Court announced a plaintiff must demonstrate that the decision was “actuated by personal motives unrelated to the duties of the defendant's official position, such as ill will, vindictiveness, or financial gain” - - that "the discriminatory treatment was motivated solely by an actual desire to harm the plaintiff or by other unjustified personal motives such as self-enrichment or the enrichment of others.” Id. ¶¶ 37-38.
Later in the opinion the Court said this requirement of a showing of actual malice or bad faith “serves the equivalent function of the qualified immunity doctrine" otherwise available to local officials when they perform discretionary acts in good faith within the course and scope of their employment. Id., ¶ 57 (Citing Morway v. Trombly, 173 Vt. 266, 272, 789 A.2d 965, 970 (2001) (quotation omitted)).
Qualified official immunity protects government officers, employees and agents "(1) acting during their employment and acting, or reasonably believing they are acting, within the scope of their authority; (2) acting in good faith; and (3) performing discretionary, as opposed to ministerial acts." Levinsky v. Diamond, 151 Vt. 178, 185, 559 A.2d 1073, 1077 (1989), overruled on other grounds, Muzzy v. State, 155 Vt. 279, 583 A.2d 82 (1990). Good faith in this context has an objective test: "Good faith exists where an official's acts did not violate clearly established rights of which the official reasonably should have known." Murray v. White, 155 Vt. 621, 630, 587 A.2d 975, 980 (1991) In Zullo v. State 2019 VT 1 the Court borrowed from the malice or bad faith standard of In re Town Highway No. 20, and the law of qualified official immunity, but the Court modified Town Highway to place the burden on plaintiff seeking money damages against the State for a search or seizure violation under Article 11 to show that a law enforcement officer acting within the scope of the officer's duties either acted in bad faith ("which may take the form of discriminatory animus") or knew or should have known that the officer was violating clearly established law. Id. ¶ ¶ 54, 84.
The Court rejected a defense of complete immunity because it is inconsistent to recognize a constitutional tort while simultaneously granting immunity . Id. ¶ 58 (Citing Corum v. Univ. of N.C., 330 N.C. 761, 785, 413 S.E.2d 276, 291(1992). ("It would indeed be a fanciful gesture to say on the one hand that citizens have constitutional individual civil rights that are protected from encroachment actions by the State, while on the other hand saying that individuals whose constitutional rights have been violated by the State cannot sue because of the doctrine of sovereign immunity.") ).
The Court, however, required a showing of actual malice or bad faith to recover monetary relief in any constitutional-tort claim based on a violation of Article 7. The Court announced a plaintiff must demonstrate that the decision was “actuated by personal motives unrelated to the duties of the defendant's official position, such as ill will, vindictiveness, or financial gain” - - that "the discriminatory treatment was motivated solely by an actual desire to harm the plaintiff or by other unjustified personal motives such as self-enrichment or the enrichment of others.” Id. ¶¶ 37-38.
Later in the opinion the Court said this requirement of a showing of actual malice or bad faith “serves the equivalent function of the qualified immunity doctrine" otherwise available to local officials when they perform discretionary acts in good faith within the course and scope of their employment. Id., ¶ 57 (Citing Morway v. Trombly, 173 Vt. 266, 272, 789 A.2d 965, 970 (2001) (quotation omitted)).
Qualified official immunity protects government officers, employees and agents "(1) acting during their employment and acting, or reasonably believing they are acting, within the scope of their authority; (2) acting in good faith; and (3) performing discretionary, as opposed to ministerial acts." Levinsky v. Diamond, 151 Vt. 178, 185, 559 A.2d 1073, 1077 (1989), overruled on other grounds, Muzzy v. State, 155 Vt. 279, 583 A.2d 82 (1990). Good faith in this context has an objective test: "Good faith exists where an official's acts did not violate clearly established rights of which the official reasonably should have known." Murray v. White, 155 Vt. 621, 630, 587 A.2d 975, 980 (1991) In Zullo v. State 2019 VT 1 the Court borrowed from the malice or bad faith standard of In re Town Highway No. 20, and the law of qualified official immunity, but the Court modified Town Highway to place the burden on plaintiff seeking money damages against the State for a search or seizure violation under Article 11 to show that a law enforcement officer acting within the scope of the officer's duties either acted in bad faith ("which may take the form of discriminatory animus") or knew or should have known that the officer was violating clearly established law. Id. ¶ ¶ 54, 84.
The Court also noted but rejected the view of other State courts that have held qualified immunity does not apply to suits against the State. Clea v. Mayor and City Council of Balt., 541 A.2d 1303, 1314 (Md. 1988) ("To accord immunity to the responsible government officials, and leave an individual remediless when his constitutional rights are violated, would be inconsistent with the purposes of the constitutional provisions."); Dorwart, 2002 MT 240, ¶¶ 68-69 (holding that qualified immunity is not applicable to claims alleging violation of rights guaranteed by state constitution because it would be inconsistent with constitutional requirement that courts afford remedy for claims recognized by law).
Finally, the Court rejected argument that there is a meaningful distinction, for immunity purposes, between suit against the State and suits against state actors. Qualified immunity protects state actors from liability for all but the most flagrant and patently unjustified violations of Article 1
At bottom the limiting principle was necessary because "of our need to be cautious when judicially recognizing potential damage liability to be imposed on another branch of government. Id., ¶ 53 ( citing D. Dobbs et al., The Law of Torts § 334, at 331 (2d ed. 2011) (retaining limited immunity prevents judicial branch from intruding upon functions of legislative and executive branches through adjudication of tort suits)). The common law ability to award damages for constitutional violations:
requires policy decisions by the court, and it should be aware of them and face them candidly.... The court is not required to provide the civil remedy, and yet judicial tradition gives it the authority to do this under appropriate circumstances. The court has discretion and it must be careful to exercise that discretion cautiously and soundly.Restatement § 874A cmt. d, at 303 (emphasis added).
In sum, the Zullo Court held that a direct private right of action for damages is available against the State but only for the most flagrant and patently unjustified violations of Article 11. See id, ¶84
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