SCOVT declines remittitur and affirms substantial damage awards for emotional distress (PTSD), without physical impact, holding such damages may be recovered from an employer for negligent supervision of an employee who commits intentional or other torts for which emotional-distress damages are available

Kilburn v. Simmon, 2025 VT 32 [filed 6/20/2025]

COHEN, J. This is an appeal from a jury verdict awarding damages to plaintiffs Ciara and Brona Kilburn for negligent supervision by defendant Vermont Community Access Media, Inc. (VCAM) of its employee, defendant Bill Simmon. In 2012, Simmon used VCAM's video cameras to secretly record plaintiffs while they were changing clothes, then shared the videos online, where they have been viewed more than a million times. The jury found that Simmon invaded plaintiffs’ privacy and recklessly caused plaintiffs severe emotional distress. It found that VCAM negligently supervised Simmon. It awarded each plaintiff compensatory damages of $1.75 million against Simmon and $1.75 million against VCAM. It awarded each plaintiff $2 million in punitive damages against Simmon. On appeal, VCAM argues that the trial court erred in admitting evidence that in 2011, a VCAM manager found child pornography on a hard drive used by Simmon but took no action. VCAM further argues that the trial court erred in allowing the jury to award damages for emotional distress because there was no evidence that plaintiffs were physically injured. Finally, VCAM argues that the court should have granted its request for remittitur because the damage award was duplicative and excessive. In their cross-appeal, plaintiffs claim that the trial court erred in denying their request to hold VCAM jointly and severally liable for Simmon's share of compensatory damages. We affirm.

Availability of Emotional-Distress Damages for Negligent Supervision

VCAM's primary argument on appeal is that the trial court erred in instructing the jury that it could award compensatory damages to plaintiffs for emotional distress resulting from VCAM's negligent supervision of Simmon even though there was no evidence that plaintiffs were physically injured. Below, Plaintiffs argue, and the trial court apparently agreed, that this Court should recognize a new exception to the Vincent rule that applies to their case because the nature of Simmon's acts guarantees the genuineness of their emotional distress.


The general rule of Vincent is that "[a]bsent physical contact, one may recover for negligently caused emotional distress only when the distress is accompanied by substantial bodily injury or sickness." Vincent v. DeVries, 2013 VT 34, ¶ 10

Further, Zeno-Ethridge v. Comcast Corp., recently held that "PTSD is a mental or emotional harm, not a physical one," and therefore "a PTSD diagnosis alone is insufficient to satisfy the `actual injury' requirement of a negligence claim." 2024 VT 16, ¶ 35

In this case, plaintiffs did not allege or show that there was any physical contact between Simmon and themselves, or any other "physical impact" resulting from VCAM's negligence. Nor does this case involve either of the exceptions to the general rule identified in Vincent for "special circumstances where the nature of the tortious act guarantees the genuineness of the claim." Id. ¶ 13 (recognizing mishandling of bodily remains or negligent transmission of message announcing death as exceptions).

We conclude that it is unnecessary to decide whether to recognize a new exception because emotional-distress damages are are available as a matter of course for VCAM's breach of its duty to prevent its employee from using its equipment and premises to commit intentional torts for which emotional-distress damages are available. We follow the Restatement definition of negligent supervision, which states that:

A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless . . . in permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.

Restatement (Second) of Agency § 213 (1958); see Haverly v. Kaytec, Inc., 169 Vt. 350, 356-57, 738 A.2d 86, 91 (1999) (adopting Restatement definition).

As several courts have observed, the plain language of § 213 does not require a plaintiff to allege physical injury to recover for negligent supervision.  Instead, the underlying tort or wrongful conduct determines the compensability of the injury. If a negligent-supervision claim is premised on an employee's commission of a tort for which emotional-distress damages are available even without physical impact, then such damages are available for the negligent-supervision claim as well.

In this case, plaintiffs' negligent-supervision claim against VCAM was premised on invasion of privacy and IIED—both intentional torts for which pure emotional distress damages are recoverable. Therefore the court properly instructed the jury that it could award compensatory damages to plaintiffs for emotional distress resulting from VCAM's negligent supervision of Simmon in this case.

We emphasize the limited nature of our holding. Emotional-distress damages may be assessed against VCAM in this case because plaintiffs met the difficult burden of proving both (1) that Simmon committed the underlying intentional torts of IIED and invasion of privacy and (2) that VCAM breached its duty to prevent Simmon from committing those torts using its premises and chattels, thereby causing harm to plaintiffs.[5] Our ruling in this case should not be interpreted to alter the Vincent rule, or to suggest that pure emotional-distress damages are automatically available for all negligent-supervision claims.

Motion for Remittitur.

VCAM argues the court should have granted its request for remittitur because the verdict was duplicative and excessive. VCAM first argues that by awarding each plaintiff $1.75 million against Simmon and $1.75 million against VCAM, the jury gave plaintiffs a double recovery for the same injury. “[A] plaintiff is generally not permitted to recover twice for the same injury.” Will v. Mill Condo. Owners’ Ass’n, 2006 VT 36, ¶ 7, 179 Vt. 500, 898 A.2d 1264. VCAM has failed to demonstrate that this occurred here, however. The identical awards do not by themselves prove that the jury improperly compensated plaintiffs twice for the same injuries. An equally plausible explanation is that the jury found each plaintiff suffered $3.5 million in damages and Simmon and VCAM were each responsible for one-half of the injuries the verdict form, expressly asked the jury to indicate whether it was awarding the same damages to be shared by the two defendants. The jury did not so indicate, and instead awarded separate damages for each defendant We are unpersuaded that there was double recovery in this case.

Further, we are unpersuaded that the award here was grossly excessive. “We are in the field of unliquidated damages, where judgments may vary widely and yet be within permissible range.” English v. Myers, 142 Vt. 144, 148, 454 A.2d 251, 253 (1982). Recordings of plaintiffs are practically impossible to remove from the internet. As the trial court noted, plaintiffs will have to live their lives knowing that friends, neighbors, colleagues, employers, and others may have seen them partially naked and that viewers might incorrectly assume that plaintiffs posted the pictures themselves. These acts caused plaintiffs severe and continuing emotional distress. Cf. State v. VanBuren, 2018 VT 95, ¶¶ 56-57 (noting substantial harm that victims of nonconsensual pornography may suffer, and observing that “[t]he personal consequences of such profound personal violation and humiliation generally include, at a minimum, extreme emotional distress”). Given the ongoing invasion of plaintiffs’ privacy and the proof presented of the attendant effects on their mental and emotional health, we cannot say that the award was excessive. See English, 142 Vt. at 147-48 (affirming “somewhat high” verdict because defendant presented no evidence of passion or prejudice on part of jury); In re Estate of Peters, 171 Vt. 381, 393, 765 A.2d 468, 478 (2000) (“Calculating damages is the jury’s duty, and considering [decedent’s] humiliation and emotional suffering, the size of the verdict alone does not show that the award was “entirely excessive.”). The cases cited by VCAM involve different factual scenarios and legal claims and are not helpful comparators. We therefore affirm the jury’s award of damages against VCAM.

Joint and Several Liability

Finally, we consider plaintiff’s claim, made following the verdict in a proposed judgment, that the trial court improperly declined to hold VCAM jointly and severally liable for Simmon’s share of compensatory damages. The court declined to make VCAM jointly liable for Simmon’s damages, stating: “The proposed judgment is not the place to raise legal issues that should have been addressed prior to or during the trial. The judgment must reflect the verdict of the jury,”reasoning that plaintiffs had agreed to have the jury allocate damages to each defendant and could not subsequently seek to recover the entire award against VCAM. We agree with the trial court that plaintiffs implicitly waived their joint-and several-liability claim by failing to object to the jury instructions or the verdict form.

Plaintiffs assert that notwithstanding the jury verdict, they were legally entitled to joint and several liability under Vermont law and the Restatement (Third) of Torts: Apportionment of Liability § 14 (2000), which makes a negligent tortfeasor, who had a duty to protect the plaintiff from the specific risk of an intentional tort, jointly and severally liable for the share of compensatory damages allocated against the intentional tortfeasor.

This Court has never addressed the Restatement provision cited by plaintiffs, which is complicated by 12 V.S.A. § 1036 applies. Given the apparent uncertainty surrounding whether joint and several liability applied in this situation, and plaintiffs' reliance on a Restatement provision that has not previously been adopted by this Court, the question of apportionment of liability should have been raised with the court before the jury was instructed and given the verdict form above. We conclude that plaintiffs waived their claim that VCAM is liable for the damages awarded against Simmon.

Affirmed.

REIBER, C.J. joined by Justice Waples, concurring. The majority determines that plaintiffs' mental and emotional harm, as well as physical effects arising from that harm, does not establish the "substantial bodily injury or sickness" necessary for recovery of emotional-distress damages in a negligence case. Vincent v. Devries, 2013 VT 34, ¶ 10, 193 Vt. 574, 72 A.3d 886 (quotation omitted). While that is true under current Vermont law, I write separately to underscore the substantial impacts of serious mental and emotional injuries and to draw attention to an unfairness in how these injuries are treated under our tort law.

This Court said in Zeno-Ethridge v. Comcast Corp., 2024 VT 16, ¶ 35 that PTSD alone is "insufficient to satisfy the `actual injury' requirement of a negligence claim." But this case illustrates that such a limitation imposes an actual unfairness on these plaintiffs. I respectfully encourage development of this aspect of tort law to incorporate our growing understanding of PTSD when we meet the facts of this and similar matters that come before us. We should take the next step by making it unequivocally clear that PTSD is a legitimate and recoverable injury in tort law.

Police not liable to victim for failure to prevent crime.

Baptie v. Bruno, 2013 VT 117(06-Dec-2013)

BURGESS, J. Plaintiffs administrators of the estate of their son, appeal summary judgment in favor of defendant, a former police officer, dismissing their lawsuit alleging the officer was liable for the death of their son as the result of his negligent investigation of their complaint about harassing phone calls against a man who murdered their son four days after they made the complaint. We hold defendant is entitled to qualified official immunity from plaintiffs’ lawsuit and that, in any event, plaintiffs cannot prove all of the elements of their negligence or intentional infliction of emotional distress (IIED) claims. Accordingly, we affirm the superior court’s grant of summary judgment in defendant’s favor.

Because plaintiffs cannot show either that defendant’s conduct in responding to their complaint was ministerial rather than discretionary in nature or that defendant acted in bad faith or violated clearly established law, defendant is immune from their lawsuit claiming that his inadequate investigation of their complaint made him liable for their son’s murder.

In any event, plaintiffs cannot prove that defendant owed them a duty to prevent the murder of their son The general rule is that “crimes committed by a third party fall within the realm of the unforeseeable, and therefore cannot form the basis for [tort] liability.” Edson v. Barre Supervisory Union # 61, 2007 VT 62, ¶ 13, 182 Vt. 157, 933 A.2d 200. Defendants in civil tort actions may be held responsible for protecting a person against the criminal act of another “only where the defendant had special knowledge or notice upon which to impose a duty to anticipate the wrongful act.” Id.; compare Sabia v. State, 164 Vt. 293, 305-06, 669 A.2d 1187, 1195-96 (1995) (concluding that child protection agency had duty to protect two sisters from known abuser by virtue of its awareness of abuse and its statutory duty to protect abused children) with Estate of Sumner v. Dep’t of Soc. & Rehab. Servs., 162 Vt. 628, 629, 649 A.2d 1034, 1036 (1994) (mem.) (concluding that child protection agency had no duty to anticipate sexual assault and murder perpetrated by child under its supervision).

Plaintiffs cannot prove that defendant had a special relationship or notice upon which to base his liability for Bruno’s murder of their son. Defendant initially told plaintiffs that he would investigate their complaint, and then later told them that he would attempt to locate Bruno and charge him with the misdemeanor crime of harassment by telephone. Defendant neither promised, nor had a duty, to conduct his investigation in a particular manner. Defendant never assured or even suggested to plaintiffs that he would seek to have Bruno incarcerated in the near future. In short, viewing the facts most favorably to plaintiffs, plaintiffs cannot show that defendant owed them a special duty to prevent Bruno’s murder of their son.

An IIED claim can be sustained only where the plaintiff demonstrates ‘outrageous conduct, done intentionally or with reckless disregard of the probability of causing emotional distress, resulting in the suffering of extreme emotional distress, actually or proximately caused by the outrageous conduct.even if defendant’s investigation proved to be inadequate or incomplete, he made some effort to locate and charge Bruno for what he reasonably believed to be a misdemeanor crime. This conduct cannot be considered outrageous in the extreme, and the superior court correctly granted defendant summary judgment on the IIED claim.

Damages for negligent infliction of emotional distress rejected in legal malpractice case, not because there was no physical injury and no zone of danger, but because the type of representation did not involve deeply personal and emotional issues

Vincent v. DeVries, 2013 VT 34 (Robinson, J.)


This case involves a jury award of emotional a legal malpractice action. Defendant appeals, challenging the trial court’s denial of his motions for judgment as a matter of law Defendant argues that emotional distress damages are not available in a legal malpractice We reverse.

Defendant admitted breach of a duty to plaintiff, and, in the trial-within-a-trial, plaintiff proved that but for the breach plaintiff would not have been ordered to convey his home to buyers in exchange for $52,000. The jury awarded awarding a total of $183,000 in damages comprising $103,000 in economic damages—representing what plaintiff paid to settle the underlying case and retain his home—and $80,000 in emotional distress damages.

The general rule precluding emotional distress damages in ordinary negligence claims without physical impact is longstanding, well-established, and almost universally embraced. However, modern courts have allowed recovery in cases of certain relationships or undertakings that are “fraught with the risk of emotional harm.” Restatement (Third) Torts: Physical & Emotional Harm § 47 cmt. b. In legal malpractice cases some courts have concluded that emotional distress damages are recoverable without physical impact case if the lawyer is contracted to perform services involving deeply emotional responses in the event of a breach. Most cases allowing damages for emotional injury in the absence of physical impact require that the emotional injury be serious. Restatement (Third) of Torts § 47 cmt. l

Assuming without deciding that Vermont law allows damages under certain circumstances for serious emotional distress in legal malpractice claims and that the evidence in this case could support a finding of sufficiently serious emotional anguish to support such a claim, we conclude that the subject of defendant’s representation of plaintiff was not of such a personal and emotional nature that it would support an exception to the general rule disallowing recovery of emotional distress damages in the absence of either physical impact or substantial bodily injury or sickness.

Plaintiff did not lose his home but, rather, faced a threatened loss of his home, which he ultimately avoided by settling the case. We do not mean to suggest that the anxiety associated with the threatened loss of one’s home cannot be profound. But in contrast, for example, to the loss of liberty or one’s child—for which there may be no adequate measure of pecuniary damages, and in connection with which serious emotional distress can be readily expected – this not the type of representation or deeply emotional harm for which modern courts allow compensation. We reverse the trial court’s award of emotional distress damages to plaintiff.

Stare decisis: Cat precedent applies to Dogs. Court refuses noneconomic damages for the malicious destruction of pet dog.

Scheele v. Dustin (2009-213) (21-May-2010) 2010 VT 45 (Skoglund, J)

This case asks the Court to decide the proper measure of damages for the loss of a family dog. David Putter, Montpelier, and Heidi Groff for Plaintiffs-Appellants. Plaintiffs appeal from a judgment denying them recovery for emotional damages for the intentional killing of their pet dog, Shadow. Though plaintiffs recovered $155 in economic damages for the destruction of their property, the issue is whether they are entitled to damages for emotional distress or loss of companionship as a result of Shadow’s death. They claim that the real worth of a pet is not merely financial and cannot be measured solely by the replacement value. Thus, they argue, their emotional suffering—the result of defendant’s malicious and intentional acts—warrants noneconomic damages. The Superior Court barred such recovery, holding that Vermont does not recognize noneconomic damages for the malicious destruction of personal property, even when the property is a beloved pet. We affirm.

Last year, in Goodby v. Vetpharm, we addressed a similar case that claims for emotional damages and loss of companionship stemming from alleged negligent or wanton acts resuling in the death of two pet cats. We affirmed the trial court’s denial of the plaintiffs’ request for noneconomic damages, including loss of companionship and emotional distress, on the ground that such damages were unavailable for the destruction of a pet because it is type of personal property. We see no reason to deviate from the sound logic of Goodby. That Goodby, sounded in negligence whereas, here, defendant alleged acted with intent and malice when he shot plaintiffs’ dog is not a distinction that entitles plaintiffs to noneconomic damages for their property loss. Instead, punitive damages are available in instances of an intentional and malicious tort.

The court at (¶ 15) refuses to extend the common law to recognize a new cause of action for the wrongful killing of a pet dog. While this Court has and will “change the common law to meet changing needs of the people of this state,” we also recognize instances where the issue presented “is better left for legislative resolution.” As in Goodby, here "[p]laintiffs fail to demonstrate a compelling reason why, as a matter of public policy, the law should offer broader compensation for the loss of a pet than would be available for the loss of a friend, relative, work animal, heirloom or memento—all of which can be prized beyond measure, but for which this state’s law does not recognize recovery for sentimental loss." 2009 VT 52, ¶ 11

Here we see no principled basis upon which to define categories of applicable harm or recovery. Moreover, when we have chosen in the past to expand the common law, we have recognized that such changes must still fit “within the doctrine of stare decisis.” See Hay v. Med. Ctr. Hosp. of Vt., 145 Vt. 533, 544, 496 A.2d 939, 945 (1985) (quotation omitted). While we do not hew to precedent without regard to the challenges and changing needs of the people of Vermont, we are not persuaded that plaintiffs’ cause requires a major shift in the landscape of the common law, especially coming so close upon the heels of our most recent ruling. Thus, as we stated above, our decision in Goodby and its predecessors continue to guide us today.

In holding with the traditional view that the law recognizes animals as a type of property, we are not blind to the special place they hold in our lives. Indeed, pets occupy a legal realm somewhere between chattel and children. 

Our animal protection statutes today circumscribe minimum standards of care for all animals, now defined as “all living sentient creatures, not human beings,” 13 V.S.A. § 351(1). Thus, under Vermont law, a person would face no criminal charges for ignoring their garden during a hot, dry summer or overloading a bookshelf to the point of collapse. Yet like treatment of a pet or other animal could result in incarceration or thousands of dollars in fines. See 13 V.S.A. § 352(2) & (4); id. § 353 (imposing criminal penalties). Over generations, the Legislature has shaped a complex and comprehensive structure guiding our treatment of animals. This statutory regime lends credence to our position that “[t]he changes plaintiffs request are better presented to the General Assembly,”

Wrongful death of a cat: no damages for lost companionship or emotional distress.

Goodby v. Vetpharm, 2009 VT 52 (Burgess, J.)

This case presents two questions: first, whether noneconomic damages are available when a pet dies due to negligent or wanton acts of veterinarians and a pharmaceutical company; second, whether a claim for negligent infliction of emotional distress lies for the death of a pet when its human companion was not within any so-called zone of danger at the time of the mishap. We answer both questions in the negative and affirm the superior court’s order of dismissal.

Plaintiffs recognize that the common law generally treats animals as personal property. We have said that the measure governing damages to personal property is the property’s “fair market value before the injury less fair market value after the injury.” That there may be a different or more appropriate measure of damages for the tangible loss of pets due to the negligence of others—a measure based on the particular pet’s value to its owner, not simply its value to a stranger in the market—need not be considered here, since plaintiffs effectively waived that claim by dismissing all claims for general damages in favor of preserving only claims for their lost companionship and emotional distress resulting from the death of their pets.

Plaintiffs and amicus Animal Legal Defense Fund urge us to adopt the view that companion animals are more properly considered as family members than personal property, so that recovery for noneconomic damage occasioned by their loss should be similarly available as for the wrongful death of next of kin. Plaintiffs fail to demonstrate a compelling reason why, as a matter of public policy, the law should offer broader compensation for the loss of a pet than would be available for the loss of a friend, relative, work animal, heirloom, or memento—all of which can be prized beyond measure, but for which this state’s law does not recognize recovery for sentimental loss. We are not persuaded that a special exception to recover noneconomic damages for the loss of companion animals occasioned by negligence should be undertaken outside of the legislative arena.

To be in the “zone of danger,” the plaintiff must be within the zone of an act negligently directed at him by defendant. Further, recovery for negligent infliction of emotional distress is precluded where the claimant does not allege “any reasonable fear for [his or her] own safety. The facts alleged in this case do not satisfy these standards. Administering the pills to the cats placed plaintiffs in no fear for their own safety, and were not acts “directed at” plaintiffs, but rather at their pets. Therefore, we also affirm the trial court’s decision to dismiss the negligent infliction of emotional distress claim.

Affirmed.