Wednesday, June 26, 2019

Affirms summary judgment dismissing, for insufficient evidence of causation, wrongful death claim alleging plaintiff’s decedent would not have lost his balance and fallen from the back of defendant's pickup.but for defendant's negligence in driving an uninspected, defective vehicle,

Collins v. Thomas,, 2007 VT 92 [filed August 24, 2007]



DOOLEY, J. This is a wrongful death action on behalf of David Collins, who died tragically at age twenty after falling from the back of a pickup truck driven by his friend, defendant Bradford Garland. Plaintiffs, the estate of Collins, his parents, and sister, appeal an order of the superior court finding defendant not liable as a matter of law and granting him summary judgment. We affirm.

The truck was in poor repair and not legally inspected at the time of the incident. Specifically, it had only an expired New Hampshire inspection sticker and would not have passed inspection in Vermont due to insufficient tread on the tires, a defective front light, a crack in the windshield, a broken rear right shock absorber, and a faulty rear right brake cylinder.

Plaintiffs contend that but for defendant's negligence in driving an uninspected, defective vehicle, Collins would not have fallen to his death.

Liability for negligence, however, requires not only a breach of a duty of care but also evidence that defendant's unreasonable conduct caused the plaintiff's harm. See, e.g., Rivers v. State, 133 Vt. 11, 13, 328 A.2d 398, 399 (1974). Specifically, causation requires both "but-for" and proximate causation. See Wilkins v. Lamoille County Mental Health Servs., Inc., 2005 VT 121, ¶¶ 13-14, 179 Vt. 107, 889 A.2d 245. Thus, the plaintiff must first show that the harm would not have occurred "but for" the defendant's conduct such that the "tortious conduct [was] a necessary condition for the occurrence of the plaintiff's harm." Id. ¶ 13.

The plaintiff must also show that the defendant's negligence was "legally sufficient to result in liability," Black's Law Dictionary 234 (8th ed.2004) (defining proximate cause), such that "liability attaches for all the injurious consequences that flow [from the defendant's negligence] until diverted by the intervention of some efficient cause that makes the injury its own." Beatty v. Dunn, 103 Vt. 340, 343, 154 A. 770, 771 (1931) (quotations and citation omitted); see also Estate of Sumner v. Dep't of Soc. & Rehab. Servs., 162 Vt. 628, 629, 649 A.2d 1034, 1036 (1994) (mem.) ("Proximate cause is the law's method of keeping the scope of liability for a defendant's negligence from extending by ever-expanding causal links.").

Although proximate cause "ordinarily" is characterized as "a jury issue," it may be decided as a matter of law where "the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way." Estate of Sumner, 162 Vt. at 629, 649 A.2d at 1036 (quotations and citation omitted).


[There is no sufficient] legal nexus between any defect in the truck and Collins' death. Collins' fatal fall from atop the toolbox could just as easily have occurred had the truck been in perfect repair and properly inspected. See Wilkins, 2005 VT 121, 1212*1212 ¶ 10, 179 Vt. 107, 889 A.2d 245 (explaining that a "defendant cannot be considered a cause of the plaintiff's injury if the injury would probably have occurred without" the defendant's unreasonable conduct (internal quotations omitted)). The fall was not within the natural flow of "injurious consequences" from the truck's defects; indeed, it occurred irrespective of the defects.

[A]lthough defendant did act negligently in operating a defective truck, defendant's conduct was not the proximate cause of plaintiff's injury, because there was no relationship between the defects and the accident.

SCOVT Note. Collins is increasingly cited for the proposition that a plaintiff alleging negligence must show “both ‘but-for’ and proximate causation.” Collins v. Thomas, 2007 VT 92, ¶ 8. See Palmer v. Furlan, 2019 VT 42; (affirming summary judgment dismissing legal malpractice claim for lack of evidence of causation); Ziniti v. New England Central Railroad, Inc.,2019 VT 9 (affirming partial summary judgment finding that car train collision was not caused by lack of a second warning sign).

Also causation “may be decided as a matter of law where the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way.” Collins v. Thomas, 2007 VT 92, ¶ 8. See Bernasconi v. City of Barre, 2019 VT 6 ( affirming summary judgment dismissing premises liability claim for lack of evidence of causation.); Sachs v. Downs Rachlin Martin PLLC . 2017 VT 100 (reversing conclusion of no causation in legal malpractice case and holding causation was established as a matter of law.)


Query -- Could Collins equally have been decided on the points that the plaintiff was not a member of the group of people whom the statute requiring vehicles inspections was intended to protect and that the risk of falling out of the vehicle was not within the purview of the statute? See Montague v. Hundred Acre Homestead, LLC, 2019 VT 16 (members of the public mot entitled to sue under statute and regulations with overarching purpose to protect residents of long-term-care facilities, not the public generally); see also Restatement (Second) of Torts § 286 (1965) (A duty may be established by safety statutes intended to protect the class of persons to which the plaintiff belongs against the particular hazard from which the harm resulted.)

SCOVT affirms summary judgment that there was no ineffective assistance of counsel, largely because alleged professional errors did not prejudice result.

In Re Burke, 2019 VT 28 [4/26/2019]


SKOGLUND, J. Petitioner James Burke sought post-conviction relief (PCR) alleging that his trial counsel, Attorney Daniel Maguire, provided ineffective assistance because of a conflict of interest. The PCR court denied petitioner’s motion for summary judgment and granted the State’s motion for summary judgment based on the court’s determination that Attorney Maguire did not provide ineffective counsel. Petitioner appeals and, for the reasons below, we affirm.

For PCR petitions based on ineffective counsel, the trial court outlined the Strickland two-part standard where the petitioner must show: (1) "by a preponderance of the evidence that counsel's performance fell below an objective standard of reasonableness informed by prevailing professional norms"; and (2) prejudice "by demonstrating a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.

 Although an expert opined that Attorney Maguire's failure to hire a forensic toxicologist fell below the prevailing professional norm, there was no evidence to support the "prejudice" prong of the test with any degree of specificity because "the results of forensic toxicological evaluation remain highly speculative at best.. Similarly even if Attorney Maguire had more effectively counseled and prepared petitioner for the competency examinations, testimony, and PSI interview, there is no evidence that demonstrates or predicts how petitioner would have done anything different.

Rule 41 gives claimant absolute right to dismiss if no answer or summary judgment is filed.

Sheryl Weitz v. Theodore Weitz , 2019 VT 35 [filed 5/24/2019]


CARROLL, J. In this divorce proceeding, husband appeals an order denying his motion to reopen the case after wife’s notice of voluntary dismissal, filed pursuant to Vermont Rule of Civil Procedure 41(a)(1)(i). On appeal, husband argues that: (1) Rule 41(a)(1)(i) “is in direct conflict” with the Vermont Rules for Family Proceedings and is therefore inapplicable to the Family Division; (2) Rule 41(a)(1)(i) was not intended to apply in cases where significant resources have been expended; and (3) that it is inequitable to apply Rule 41(a)(1)(i) in this case due to alleged bad faith and bad acts by wife. We affirm.

The interpretation of a procedural rule is a question of law which we review de novo. State v. Amidon, 2008 VT 122, ¶ 16, 185 Vt. 1, 967 A.2d 1126. The plain, ordinary meaning of a rule controls when it is unambiguous. See State v. Villar, 2017 VT 109, ¶ 7, 206 Vt. 236, 180 A.3d 588 (“In construing a procedural rule, we look first to the rule's plain language, just as with statutory construction.”); McClellan v. Haddock, 2017 VT 13, ¶ 13, 204 Vt. 252, 166 A.3d 579 (“Our task . . . is to ascertain and implement the Legislative intent . . . . In determining that intent, our principal source, at least initially, must be the language of the statute itself.” (quotation omitted)).

Rule 41(a)(1)(i) states that an action “may be dismissed by the plaintiff without order of court by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment.” V.R.C.P. 41(a)(1)(i). This language is unambiguous: if an adverse party has not served either an answer or a motion for summary judgment on the plaintiff, then the plaintiff may choose to dismiss the case3 by filing a notice of dismissal. Use of the permissive term “may” shows that a V.R.C.P. 41(a)(1)(i) dismissal is at the plaintiff’s option. And no court order is necessary to effectuate such a dismissal because the case is to be dismissed “by the plaintiff without order of [the] court.” Id.; Fed. Nat’l Mortg. Ass’n v. Johnston, 2018 VT 51, ¶ 5, __Vt.__, 189 A.3d 567 (“The language . . . ‘without order of court’ connotes that as long as a plaintiff makes the filing and the requisite facts are present . . . then the case is dismissed.”)

Generally, Vermont Rule 41(a)(1)(i) does not permit consideration of how far a case has advanced where no answer or motion for summary judgment has been served by an adverse party.  The reason for a voluntary dismissal, whether to forum shop, avoid sanctions, or simply seek a more convenient (or advantageous) forum, is irrelevant.

The Rules of Civil Procedure apply to “actions for divorce” except as “otherwise provided” in the Vermont Rules for Family Proceedings. V.R.F.P. 4.0(a)(1)-(2)

Here, husband never filed an answer nor moved for summary judgment. Therefore, wife retained the option to voluntarily dismiss the case by filing a notice of dismissal. We therefore affirm the trial court’s decision to deny husband’s motion to reopen. This result is plainly required by the text of the rule.

SCOVT affirms summary judgment dismissing tort claim against state on grounds of discretionary function..

Ingerson v. Pallito2019 VT 40 [filed 6/7/2019]

EATON, J. Plaintiff-appellant, James Ingerson, sued the Department of Corrections (DOC) for negligence in investigating allegations that plaintiff was being sexually exploited by a DOC employee while he was an inmate at a DOC correctional facility. The trial court granted summary judgment to the State, holding that plaintiff’s claim was barred by the discretionary function exception to the Vermont Tort Claims Act (VTCA), 12 V.S.A. § 5601(e)(1). Plaintiff appealed the summary judgment ruling to this Court. We affirm

On appeal, plaintiff primarily argues that the discretionary function exception does not apply to DOC’s investigation because DOC failed to establish procedures for investigating allegations of sexual misconduct pursuant to its sexual harassment policy, Policy 126. Plaintiff further argues that even if the discretionary function exception does apply, DOC waived its sovereign immunity

1. The Discretionary Function Exception Applies to DOC’s Investigation

This Court has adopted the two-part test outlined in United States v. Gaubert, 499 U.S. 315, 322-25 (1991), to evaluate whether a State’s act or omission qualifies as a discretionary function. Searles, 171 Vt. at 563-64, 762 A.2d at 813-14. Under the first prong of the test, the court must determine whether a statute, regulation, or policy mandates certain acts, or whether performance of a duty involves an element of judgment or choice. The second prong of the test directs the court to determine “whether that judgment is of the kind that the discretionary function exception was designed to shield”—policy-related judgments. Id. (quotation omitted).

In this case, DOC exercised its discretion when it investigated the allegations of sexual exploitation at issue without definitive ministerial standards. We conclude that this scenario satisfies both prongs of the discretionary function exception to the 10 VTCA and that sovereign immunity applied to DOC’s actions. The trial court appropriately granted summary judgment to the State.

2 DOC Did Not Waive Sovereign Immunity . . .

Ultimately, DOC exercised judgment regarding matters of public policy when investigating the allegations against Salls without the benefit of ministerial guidelines. Because DOC’s investigation satisfies both prongs of the discretionary-function-exception test, and we are not persuaded by plaintiff’s arguments that DOC waived this protection, sovereign immunity applies. We affirm the court’s grant of summary judgment in favor of the State




SCOVT affirms dismissal for lack of standing of board member's compliant of open meeting violation..


Severson v. City of Burlington & Burlington Conservation Board, 2019 VT 41 [filed 6/7/2019]

SKOGLUND, J. Appellant Jeffrey Severson appeals the trial court’s decision to grant appellees’—the City of Burlington (the City) and the Burlington Conservation Board (the Board)—motion to dismiss pursuant to Vermont Rule of Civil Procedure 12(b)(1) and (6). Severson argues that the trial court erred when it determined he, as a member of the Board, did not have standing because he did not allege an injury that is actionable under Vermont’s Open Meeting Law. 1 V.S.A. § 314(b). We find that dismissal of Severson’s claim was proper, and thus affirm

Severson filed suit against the Board and the City, seeking declaratory and injunctive relief on the ground that the Board violated § 314(c) of the Open Meeting Law by conducting its final review of the Project behind locked doors and by notifying the public in advance of the meeting that, in order to attend, any member of the public needed to arrive prior to 6 p.m. The City and the Board moved to dismiss the complaint pursuant to Vermont Rule of Civil Procedure 12(b)(1) and (6), arguing that Severson did not have standing and failed to state a claim upon which relief could be granted, and noting that Severson had failed to produce any evidence that a member of the public attempted to gain access to the meeting but was locked out.

The central question before us on appeal is whether Severson, as a member of the public body that allegedly violated § 312(a) and (h) of the Open Meeting Law, qualifies as “any person aggrieved” entitled to seek enforcement of the Open Meeting Law in the wake of the public body’s refusal to recognize, and correct, the alleged violation.

Even taking Severson’s pleadings as true, because there is no allegation here that any specific person was deprived access to the meeting, or deterred from attending the meeting, the trial court properly determined that Severson lacked standing under the Open Meeting Law and dismissed his suit

SCOVT affirms summary judgment dismissing legal malpractice claim for lack of evidence of causation.

Stephan Palmer, Sr. v. Mark Furlan and State of Vermont, 2019 VT 42 [filed 6/21/2019]


SKOGLUND, J. In this matter, the trial court entered summary judgment on behalf of appellee, Attorney Mark Furlan. Appellant, Stephan Palmer, Sr., appeals this order, arguing that the trial court erred when it determined that appellant’s claim failed as a matter of law on causation grounds. We conclude that summary judgment was appropriate and affirm

Attorney Furlan, an ad hoc public defender, was assigned to represent appellant in PCR proceedings. Appellant  alleged legal malpractice  because Attorney Furlan did not  more aggressively attempt to get the PCR court to act in an expedited manner  in approving the stipulation. that would have resulted in his immediate release

We conclude that, even if we were to accept for the sake of argument that appellant had established that Attorney Furlan was under a duty to ask the PCR court to expedite its consideration of the parties’ stipulation motion and that Attorney Furlan had breached said duty, appellant’s negligence claim fails as a matter of law because he has not established that Attorney Furlan’s alleged breach was the proximate cause of his alleged damages.

“[C]ausation requires both ‘but-for’ and proximate causation.” Collins v. Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208.

“But-for” causation “requires a showing that the harm would not have occurred ‘but for’ the defendant’s conduct such that the tortious conduct was a necessary condition for the occurrence of the plaintiff’s harm.” Ziniti, 2019 VT 9, ¶ 15 (quotation omitted).

Proximate cause, on the other hand, “requires a showing that the defendant’s negligence was legally sufficient to result in liability in that the injurious consequences flowed from the defendant’s conduct and were not interrupted by some intervening cause.” Id. (quotation omitted). And, “[a]lthough proximate cause ‘ordinarily’ is characterized as ‘a jury issue,’ it may be decided as a matter of law where ‘the proof is so clear that reasonable minds cannot draw different conclusions or where all reasonable minds would construe the facts and circumstances one way.’ ” Collins, 2007 VT 9, ¶ 8

Appellant has not proffered any evidence to establish that the PCR court would have, had Attorney Furlan proposed an expedited timeline due to the case’s circumstances, moved the hearing to an earlier date or rendered a speedier decision. The Appellant’s timeline is based in speculation and supposition, rather than specific facts/. it would require this Court, and the trial court, to speculate as to how judges make decisions and what decisions they reasonably would have made in these circumstances.Appellant’s argument simply leaves too much to speculation, which is something this Court and trial courts will not do when examining a motion for summary judgment.

EATON, J., concurring. I agree with the outcome reached by the majority affirming the dismissal of appellant Stephan Palmer, Sr.’s negligence claim against his criminal defense attorney because the claim rests upon speculation concerning the workings of the court in approving the proposed stipulation dismissing the post-conviction relief (PCR) claim. I write separately to point out additional concerns not addressed by the majority.

The PCR court did not have authority under 13 V.S.A. § 7042, or Rule 35, to reduce Palmer’s sentence based solely upon an untimely agreement of counsel to do so. The parties cannot confer authority upon the court to take an action simply through their agreement that the court has the power to do it..

I agree fully with the trial court here that execution of this stipulation by the PCR court was far more than a ministerial act. Thus, the argument that “any reasonably competent” judge would have advanced the case on the docket, and signed the stipulation, is even more speculative than the majority’s decision suggests

Finally, that a judge ultimately signed the stipulation when he did does not mean the stipulation would have been signed sooner, or at all, if it had been presented at an earlier time.

For these reasons, I concur in the outcome. I am authorized to state that Justice Carroll joins this concurrence.

SCOVT NOTE. In the PCRcontext a defendant claiming ineffective assistance of counsel need prove only a "reasonable probability" that but for counsel's unprofessional errors, the result of the proceeding would have been different.  Even so the Court has required evidence that demonstrates or predicts with specificity how the result would have been different. See In Re Burke, 2019 VT 28 (affirms summary judgment that there was no ineffective assistance of counsel, because alleged professional errors did not prejudice result).