As a matter of first impression SCOVT recognizes tort of intentional interference with expectation of inheritance, but a Divided Court holds the claims in this case of IIEI, constructive fraud and unjust enrichment involve trust administration within the exclusive jurisdiction of probate.

 Dewdney v. Duncan, 2025 VT 26 [5/23/2025]

COHEN, J.   Plaintiffs Berol and Cordelia Dewdney appeal the civil division’s decision granting summary judgment to defendant Ralph Duncan, IV on plaintiffs’ claims for intentional interference with expectation of inheritance (IIEI), breach of contract, promissory estoppel, unjust enrichment, and constructive fraud.  We affirm.

In October 2011, Anna created a revocable inter vivos trust to receive the royalty income from her books.  Anna designated plaintiffs and defendant as beneficiaries of the trust with 40% of the income assigned to each plaintiff and 20% assigned to defendant.  At the same time, defendant executed his last will and testament in which he designated plaintiffs as his sole heirs if Anna predeceased defendant. Thereafter, Anna amended the trust and changed the distribution of the trust income to 25% for each plaintiff and 50% to defendant.  Plaintiff’s complaint in the civil division sought the creation of a constructive trust entitling them to all distributions exceeding defendant’s original 20% share and restitution of any amounts previously distributed to defendant that exceeded 20%.

 

The trial court ruled that IIEI was a cognizable cause of action in Vermont but that plaintiffs were required to first seek a remedy in the probate division.  The court determined that plaintiffs failed to establish their remaining claims

 

 Intentional Interference with Expectation of Inheritance

 

The Third Restatement, states that a defendant is liable for IIEI when: (a) the plaintiff had a reasonable expectation of receiving an inheritance or gift;  (b) the defendant committed an intentional and independent legal wrong;  (c) the defendant’s purpose was to interfere with the plaintiff’s expectancy;  (d) the defendant’s conduct caused the expectancy to fail; and (e) the plaintiff suffered economic loss as a result. Restatement (Third) of Torts: Liab. for Econ. Harm § 19(1) (2020).  The Third Restatement, however, also provides that an IIEI claim “is not available to a plaintiff who had the right to seek a remedy for the same claim in a probate court,”  Id. § 19(2) (the probate exhaustion rule.)

 

While we have not previously recognized the tort of IIEI, we conclude that the Third Restatement definition of IIEI, with its probate exhaustion requirement, is the appropriate definition to adopt.

 

Plaintiffs argue that the Third Restatement and cases from other jurisdictions distinguish between wills and inter vivos trusts for purposes of the probate-exhaustion rule.

 

Under Vermont law, the probate division is vested with exclusive jurisdiction over claims brought by a trustee or beneficiary concerning trust administration.  14A V.S.A. § 203(a)(“ The Probate Division of the Superior Court has exclusive jurisdiction of proceedings in this State brought by a trustee or beneficiary concerning the administration of a trust”); 4 V.S.A. § 35 (“The Probate Division shall have jurisdiction of . . .(3) the administration of trusts pursuant to Title 14A”)

 

Other jurisdictions do not have statutory mandates vesting the probate division with exclusive jurisdiction over the administration of trusts as we do in Vermont. Accordingly, we hold that an IIEI claim is not available to a plaintiff who had the right to seek a remedy for the same claim in probate court.

 

Plaintiffs argue that they did not have the right to make their claim in the probate division because their claim does not concern the administration of the trust, but instead seeks a remedy for defendant’s undue influence, duress, and fraud in inducing Anna to amend the trust. In Collins v. Collins. 2017 VT 70, we held that the was the probate division was the proper forum for challenging the settlor’s capacity to make a trust Challenging the settlor’s ability to change the beneficiary necessarily implicates the administration of the trust because the trustee must know to whom to administer the trust property.  Collins, 2017 VT 70, ¶ 15. Similarly, plaintiffs challenge whether Anna was unduly or fraudulently influenced to change the trust distributions between beneficiaries involves the administration of the trust and therefore falls within the exclusive jurisdiction of the probate division.

 

Plaintiffs were barred from bringing their IIEI claim in the civil division because they did not first pursue it in the probate division.  We therefore affirm the court’s decision to grant summary judgment for defendant on this claim.

 

 Unjust Enrichment

 

We conclude that plaintiffs were required to bring their unjust enrichment claim in the probate division. 

 

To succeed on a claim for unjust enrichment, a plaintiff must prove three things: "(1) a benefit was conferred on defendant; (2) defendant accepted the benefit; and (3) defendant retained the benefit under such circumstances that it would be inequitable for defendant not to compensate plaintiff for its value." Beldock v. VWSD, LLC, 2023 VT 35, ¶ 68. A recipient of a donative transfer may be liable to a claimant for unjust enrichment if the recipient diverted the donative transfer by fraud, duress, or undue influence; this includes a transfer through an inter vivos trust. See Restatement (Third) of Restitution and Unjust Enrichment § 46 (2011)

Plaintiffs asserted their claim for unjust enrichment under the theory that defendant induced Anna to amend the trust and increase his share of trust distributions through fraud and undue influence, thus reducing their expected shares and making it inequitable for defendant not to compensate them.

 

Like plaintiffs’ IIEI claim, this claim challenges the administration of the trust because plaintiffs, the trust’s beneficiaries, seek to challenge the amended distribution of the trust property, and the distribution of the trust is a main function of trust administration.  Therefore, plaintiffs were required to bring their claim in the probate division.  14A V.S.A. § 203(a); Collins, 2017 VT 70, ¶ 15.  Our holding should not be interpreted to mean that claims of unjust enrichment relating to trusts will always be under probate jurisdiction.  Here, however, plaintiffs’ underlying allegations of fraud and undue influence over the amendment to the trust distributions fall within the probate’s exclusive jurisdiction over administration of trusts

 

 Constructive Fraud

 

Similarly. Plaintiffs’ constructive fraud claim implicates the administration of the trust, which the Legislature has placed in the exclusive jurisdiction of the probate division.  Our holding should not be interpreted to mean that claims of unjust enrichment relating to trusts will always be under probate jurisdiction.  Here, the underlying allegations of fraud and undue influence over the amendment to the trust distributions fall within the probate’s exclusive jurisdiction over administration of trusts.   

 

 Plaintiffs’ argument that they should be allowed to amend their complaint to plead actual fraud based on these same facts is moot because plaintiffs were required to seek a remedy in the probate division in the first instance for this type of challenge.   

 

Promissory Estoppel

 

  A plaintiff must show the following for a promissory estoppel claim: “(1) defendant made a promise to [the promisee] that defendant should have reasonably expected to induce action or forbearance; (2) [the promisee] relied on the promise to [the promisee’s] detriment; and (3) injustice can be avoided only by enforcement of the promise.”  Pettersen v. MonaghanSafar Ducham PLLC, 2021 VT 16, ¶ 11. Implicit to a promissory estoppel claim is a showing that the defendant breached a promise.  See Dillon v. Champion Jogbra, Inc., 175 Vt. 1, 9 (2002).

 

Here, a reasonable jury could conclude from the evidence that defendant made a promise to Anna to make plaintiffs his sole heirs. However, defendant did not break this promise because defendant has not positively and unequivocally revoked his promise, nor has he removed plaintiffs from his will.  Accordingly, plaintiffs cannot show detrimental reliance, because Anna was not harmed by any breach of the promise.  We therefore affirm the court’s decision to grant defendant summary judgment on this claim.

 

 

WAPLES, J., dissenting.   I agree with the majority that Vermont should recognize claims for intentional interference with an expectation of inheritance (IIEI) and adopt the definition of such claims from the Restatement (Third) of Torts: Liability for Economic Harm § 19 (2020).  I disagree, however, that defendant was entitled to summary judgment on this claim.  The undisputed facts do not establish that plaintiffs “had the right to seek a remedy for the same claim in a probate court.”  Id. § 19(2).  I would reverse the trial court’s decision on the IIEI claim and remand for additional proceedings.  I therefore respectfully dissent. 

 

 I do not find Collins persuasive on the question of whether plaintiffs’ claim here “implicates the administration of the trust.” The Restatement’s explicitly recognizes that a probate court “is unable to provide a remedy for wrongful conduct in relation to a nonprobate transfer, such as a transfer by inter vivos trust.”  Id. § 19 cmt. c.    In a similar vein, the UTC’s reference to the probate division’s “exclusive jurisdiction of proceedings . . . brought by a trustee or beneficiary concerning the administration of a trust” in 14A V.S.A. § 203(a) should not be read to conflict with the UTC’s express direction that “[a]n action against a beneficiary or other person for intentional interference with an inheritance or gift” is not a trust contest.  Id. § 604, official cmt. 

 

It is not clear from the undisputed facts that plaintiffs’ “challenge to the trust amendment implicates the administration of the trust,”  as opposed to falling into the category of “other proceedings involving a trust” for which the probate court “has concurrent jurisdiction with other courts of this State,” 14A V.S.A. § 203(b).  As plaintiffs explain, they are not seeking to hold a trustee liable for misconduct or mishandling of trust assets in their capacity as a trustee.

 

I believe we should draw a distinction between trusts and wills for purposes of determining the viability of an IIEI claim.  I would reverse the trial court’s summary judgment decision in defendant’s favor and I therefore respectfully dissent.  

How cited

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.

SCOVT affirms Rule 12(b)(6) dismissal and denial of later motion to amend complaint for losses due to negligent notarization of fraudulent document, holding pleading and argument below failed to show a “special relationship” justifying exception to economic loss rule.

Veljovic v. TD Bank, N.A., 2025 VT 38 [filed 7/11/2025]

 REIBER, C.J.   Plaintiff Aleksandra Veljovic appeals from the dismissal with prejudice of her negligence, negligent supervision, and respondeat superior claims against TD Bank, N.A. and its former employee, Zlata Cavka.  Plaintiff alleged that the employee negligently notarized a fraudulent document that was ultimately used by plaintiff’s ex-husband to secure a divorce order in Serbia leading to her loss of marital property.  She argued that TD Bank should be held liable under the legal theories cited above.  The court dismissed plaintiff’s complaint, concluding that plaintiff could not recover for purely economic losses and she failed to show the existence of a special relationship between the parties.  It also denied plaintiff’s post-judgment request to amend her complaint.  We agree with the court’s conclusions and therefore affirm.

Plaintiff’s complaint lacked any allegations indicating that she had any relationship, much less a close or “special” relationship, with Cavka or that she relied on Cavka’s notarial services.  The only connection plaintiff alleges between herself and Cavka was that Cavka notarized a document purportedly containing plaintiff’s signature, allegedly presented to Cavka by plaintiff’s ex-husband.  Without facts that establish a relationship of trust, confidence, or reliance between plaintiff and Cavka, plaintiff’s claims are barred by the economic-loss rule.   

Plaintiff argues that the notary’s services qualify under the professional services exception to the economic loss rule because a notary is a public officer who owes a duty to the public to perform her service with diligence.  Plaintiff raised this argument in the trial court for the first time in her V.R.C.P. 59(e) motion to reconsider.  However, a “Rule 59(e) motion may not be used to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.”  11 C. Wright & A. Miller, Federal Practice and Procedure § 2810.1 (3d ed. 2024)  Because plaintiff did not raise this argument in the trial court prior to judgment, it is not preserved for appeal.

Following the trial court’s ruling, plaintiff sought to amend her complaint to include an allegation that she held an account at TD Bank to support her contention that she shared a special relationship with the bank.   Vermont Rule of Civil Procedure 15(a) provides that a party may amend a pleading after entry of judgment “only by leave of court or by written consent of the adverse party.”  Additionally, for the court to grant leave to amend post-judgment, the plaintiff must first succeed in having the final judgment set aside under Rule 59(e), which did not occur here. See Stowe Aviation, LLC v. Agency of Com. & Cmty. Dev., 2024 VT 11, ¶¶ 18, 21( Even if a plaintiff never moved to amend before judgment, Rule 59(e) relief is available to amend pleadings but plaintiff must demonstrates one of the basic grounds for granting a Rule 59 motion.) In certain instances, denial of a Rule 15(a) motion “may be justified based upon a consideration” of several factors, including the futility of the amendment. Colby v. Umbrella, Inc., 2008 VT 20, ¶ 4, 184 Vt. 1, 955 A.2d 1082. We review a trial court’s denial of a plaintiff’s motion to file an amended complaint for abuse of discretion. N. Sec. Ins. Co. v. Mitec Elecs., Ltd., 2008 VT 96, ¶ 34, 184 Vt. 303, 965 A.2d 447. Plaintiff fails to show an abuse of discretion here.

Plaintiff’s amendment failed to establish that she shared a special relationship with the bank to oversee notarial services offered by any of its employees.  See Shulman v. Concord Gen. Mut. Ins. Co., 618 F. Supp. 3d 165, 175 (D. Vt. 2022) (holding that plaintiffs failed to sufficiently allege “a special relationship of trust” with insurer where insurer had “made no contact with plaintiffs”).  Therefore, because plaintiff’s proposed amended complaint, like her original complaint, cannot show that an exception to the economic-loss rule applies, it cannot withstand a motion to dismiss, and amendment would therefore be futile.  The trial court did not abuse its discretion in denying plaintiff’s post-judgment motion to amend her complaint.  

Affirmed.

____

SCOVT NOTE: Economic Loss "Rule," Public Duties and Notaries Public. This case has a special irony in that the trial court denied the Rule 59(e) motion on grounds that "plaintiff raised no issues of fact or law that the court had not already considered" and the Supreme Court affirmed on the grounds that "plaintiff did not raise [the correct argument] in the trial court prior to judgment." On the merits, the economic loss rule does not preclude recovery against notaries for breach of their pubic duties.

The Vermont Supreme Court has adopted the definition of Restatement (Second) of Torts § 552 for claims of negligent misrepresentation. Glassford v. Dufresne & Assocs. P.C., 2015 VT 77. It should now be beyond question that the economic loss "rule" does not preclude recovery under § 552. Id,; Sutton v. Vermont Regional Center, 2019 VT 71 ¶ 36 (amended and superceded by 2019 VT 71A) ("The economic-loss rule is not an impediment to this claim, and the Restatement (Second) provision describing the tort applies, by its own terms, to "pecuniary loss""); But see PeakCM, LLC v. Mountainview Metal Systems, LLC , 2025 VT 50 (to use the duty outlined in negligent-misrepresentation claims to establish a "special- relationship" exception would drastically expand the exception to the point of swallowing the economic-loss rule.)

In Glassford the Court observed that § 552(3) identifies the specific circumstances when liability for economic loss  may be imposed on defendants who have a duty to provide information for the benefit of the public.  Restatement § 552 cmt. k. This includes:

 For example, if a notary public negligently acknowledges a signature on a deed that turns out to be a forgery and a purchaser relies on the recorded deed in purchasing land, the notary is liable to the purchaser for any pecuniary losses as a result of the invalid deed. Id. illus. 16

2019 VT 71 at ¶ 16. See also Sutton v. Vermont Regional Center, 2019 VT 71 ¶ 31 n. 6 (amended and superceded by 2019 VT 71A) (noting the plethora of exceptions to the broad formulation of the economic-loss rule has induced the drafters of the current restatement to propose "a more limited principle: not that liability for economic loss is generally precluded, but that duties of care with respect to economic loss are recognized in specific circumstances.") (citing  Restatement (Third) of Torts: Liab. for Econ. Harm § 1 cmt. b (Tentative Draft No. 1, 2012)) 

As now set forth in Restatement (Third) of Torts: Liability for Economic Harm  § 5(3) (2020) the liability for pecuniary loss due to negligent misrepresentation by one who is under a "public duty" to supply the information "extends to loss suffered by any of the class of persons for whose benefit the duty is created, in any of the transactions in which it is intended to protect them."

Legal expenses incurred in clearing title are “special damages” that can sustain a slander-of-title claim

Massucco v. Kolodziej, 2024 VT 76 (filed 11/27/2024) (Affirms orders reforming deed and finding slander of title, holding as a matter of first impression that legal expenses incurred in clearing title are “special damages” that can sustain a slander-of-title claim.)

WAPLES, J.   Defendants James and Barbara Kolodziej discovered that a parcel of land near their property was seemingly omitted from plaintiff Sarah Massucco’s deed.  They arranged for the heirs of a previous owner of the land to deed that parcel to them.  Defendants neither talked to plaintiff—who they saw use the parcel—nor confirmed that the heirs owned the parcel.  After recording their own deed, defendants informed plaintiff that they owned the parcel and asked her to remove her belongings.  Plaintiff sued.  The trial court granted plaintiff’s claim for deed reformation on summary judgment and concluded Mr. Kolodziej slandered plaintiff’s title after a bench trial.  Defendants appeal and we affirm. 

To reform her deed, plaintiff must demonstrate, beyond a reasonable doubt, that the deed fails to express the real agreement between seller and buyer due to a mutual mistake in reducing the agreement to writing.  Cassani v. Hale, 2010 VT 8, ¶ 17, 187 Vt. 336, 993 A.2d 422.  “Mutual mistake is shown if the evidence establishes that the seller intended to sell and the buyer intended to purchase a different piece of land than that described in the deed.”  LaRock v. Hill, 131 Vt. 528, 530, 310 A.2d 124, 126 (1973).  The court may reform a deed to what “the deed and extrinsic evidence indicate [the parties] must have intended.”  Cassani, 2010 VT 8, ¶ 19.  “Intent is rarely proved by direct evidence; it must be inferred from a person’s acts and proved by circumstantial evidence.”  State v. Langdell, 2009 VT 125, ¶ 9, 187 Vt. 576, 989 A.2d 556 (mem.) (quotation omitted).

 

 Defendants contend that the language of the Leisey deed precludes summary judgment. But  Plaintiff does not dispute that the Leisey deed facially omitted the disputed parcel.  Her claim is that the deed does not reflect the true agreement between the Adamses and Mr. Leisey.  The undisputed text of the deed alone does not bar a grant of summary judgment on a reformation claim.

 Even if Mr. Leisey was hazy on the specific details of the parcel’s boundary the facts set forth by defendants do not create a genuine dispute of fact for trial.  The unrefuted deposition testimony demonstrated that the Adamses intended to convey their whole remaining parcel to Mr. Leisey, Without any disputed material facts presented, the trial court appropriately granted summary judgment on plaintiff’s claim for reformation of the Leisey deed and the deeds in her line of title. 

To prove slander of title, plaintiff must show that: (1) she has a “transferrable ownership interest capable of disparagement,” (2) defendants published a false statement concerning plaintiff’s title; (3) defendants acted with malice, and (4) the statement caused special damages.  Sullivan v. Stear, 2011 VT 37, ¶¶ 8, 11, 189 Vt. 442, 23 A.3d 663.[1] ‘The essence of the tort is the publication of an assertion that is derogatory to the plaintiff’s title to property in an effort to prevent others from dealing with the plaintiff.”  Id. ¶ 8 (quoting Wharton v. Tri–State Drilling & Boring, 2003 VT 19, ¶ 14, 175 Vt. 494, 824 A.2d 531 (mem.)).[2]

 

(1)

 

There is a split among the states as to whether land acquired through adverse possession can support a slander-of title claim. We conclude that title by adverse possession “is a sufficient interest in property for a claimant to maintain an action for slander of title.”  Colquhoun v. Webber, 684 A.2d 405, 409-10 (Me. 1996). In Colquhoun, the Maine Supreme Judicial Court looked to the Restatement (Second) of Torts, which provides that a legally protected interest in land “may be disparaged if the interest is transferable.” . Restatement (Second) of Torts § 624 cmt. c (1977).  Because in Maine an adverse possessor has good title after having met the requirements for adverse possession, that title can sustain a slander-of-title claim even before judicial confirmation of the title.  Colquhoun, 684 A.2d at 410.  We hold the same here.  .  Plaintiff thus had the title necessary to sustain her slander-of-title claim, even before the court order reforming the Leisey deed becomes final. 

(2)

The trial court concluded that the recording of the deed constituted publication of a false statement concerning plaintiff’s title.  We agree.  By recording a deed that amounted to a false claim of ownership of the disputed parcel, Mr. Kolodziej published a false statement concerning plaintiff’s title.

(3)

Malice in a slander-of-title action requires “conduct manifesting personal ill will, evidencing insult or oppression, or showing a reckless or wanton disregard of plaintiff’s rights.”  Though the court found that Mr. Kolodziej “did not have personal ill will” towards plaintiff, he “acted with reckless disregard of the possibility that she had a claim to the disputed property.”  --The undisputed evidence demonstrates that Mr. Kolodziej located a parcel of land where the deeds in the land records did not comport with town maps or with plaintiff’s usage of the land.  He then arranged to have the parcel deeded to himself and his wife without speaking to the person who he saw had been using the.This evinces a “reckless disregard” for plaintiff’s rights.. The trial court applied the correct legal standard, and we see no error in the conclusions it drew.

(4)

We have never clarified what might constitute special damages for a slander-oftitle claim in Vermont.  We have affirmed dismissal of a claim of slander of title for lack of evidence tying “any damages to the alleged slander.”  Gardner v. West-Col, Inc., 136 Vt. 381, 387, (1978) .  We have also squarely held that pecuniary losses from a lost sale of the property at issue suffice to establish special damages.  Wharton, 2003 VT 19, ¶¶ 15, 18.  We must now decide whether evidence of damages in the form of legal expenses incurred in clearing title are “special damages” that can sustain a slander-of-title claim.  We conclude that they are.

Fees expended in prosecuting the slander-of-title action are not recoverable as special damages in that action, but the costs of actions taken to clear a plaintiff’s title and such other expenses that are reasonably necessary to counteract the disparagement” constitute “special damages for which the tortfeasor should bear liability.

 

We affirm the trial court’s grant of summary judgment to plaintiff on her claim for reformation of the deeds in her line of title.  We further conclude that her reformed deed relates back to the grant of the original deed, and that plaintiff’s interest in the disputed parcel can sustain her slander-of -title claim even before judicial confirmation of the deed reformation becomes final.  Finally, we conclude that attorney’s fees and costs expended in clearing her clouded title constitute the special damages necessary to sustain plaintiff’s slander-of-title claim.  

Affirmed. 

---

SCOVT NOTEs Re Elements of Slander of Title in Vermont precedent:

[1] Sullivan v. Stear, 2011 VT 37, ¶¶ 8, 11 (“To prove slander of title, plaintiff must show that: (1) defendants published a false statement concerning plaintiff's title; (2) the statement caused special damages; and (3) defendants acted with malice. Wharton v. Tri-State Drilling & Boring, 2003 VT 19, ¶ 14, 175 Vt. 494, 824 A.2d 531 (mem._) . . . Whether a statement concerns a person's title revolves around whether it affects that person's ability to make deals with others regarding the property disparaged. Wharton, 2003 VT 19, ¶ 14, 175 Vt. 494, 824 A.2d 531. In other words, one claiming slander of title must have a transferrable ownership interest capable of disparagement. Restatement (Second) of Torts § 624 cmt. c ("Any kind of legally protected interest in land, chattels or intangible things may be disparaged if the interest is transferable and therefore salable or otherwise capable of profitable disposal.").)

 

[2] Wharton v. Tri–State Drilling & Boring, 2003 VT 19, ¶ 14(“The elements of slander of title as a cause of action have not been clearly laid out in Vermont. The tort has been recognized by this Court, however, first in a nineteenth century case in which we declared that we had jurisdiction over claims for slander of title, Sherman v. Champlain Transportation Co., 31 Vt. 162 (1858), and next in a more recent case where we held that an essential element of the cause of action for slander of title is special damages. Gardner v. West-Col, Inc., 136 Vt. 381, 387, 392 A.2d 383, 386 (1978). The essence of the tort is the publication of an assertion that is derogatory to the plaintiff's title to property in an effort to prevent others from dealing with the plaintiff. See Prosser and Keeton on Torts § 128, at 967 (5th ed.1984). To prove slander of title, a plaintiff must prove that a defendant falsely published a statement concerning plaintiff's title that caused special damages to the plaintiff and that defendant acted with malice. Restatement (Second) of Torts §§ 623A, 624 (1977)”)

SCOVT affirms judgment as a matter of law for defendant driver in negligence case where there was no specific expert or other evidence of a causal link between driver’s alleged negligence and plaintiff jogger’s injury.

 Driscoll v. Wright Cut and Clean LLC, 2024 VT 24 [August 2, 2024]

 EATON, J. Plaintiff Frank Driscoll appeals a civil division order granting judgment as a matter of law on his negligence claim in favor of defendants Benjamin Wright and Wright Cut and Clean, LLC. Based on the evidence plaintiff presented at trial, defendants moved for judgment as a matter of law under Vermont Rule of Civil Procedure 50 at the close of plaintiff’s case. The court granted defendants’ motion. On appeal, plaintiff argues that the trial court erred in granting judgment as a matter of law. Because we determine plaintiff failed to produce sufficient evidence of causation, we conclude judgment as a matter of law was warranted. Accordingly, we affirm.

On July 18, 2019, plaintiff was running in a southerly direction on the left side of the road, facing into the flow of traffic. At the same time, defendant Benjamin Wright (driver), an employee of defendant Wright Cut and Clean, was driving a company truck also in a southerly but on the right side of the road. The truck was pulling a trailer.  As the truck approached plaintiff from behind, plaintiff looked behind him, and then moved about five feet to his left, toward the left edge of the road. As the truck passed plaintiff, driver looked in his side review mirror and saw plaintiff move get struck by the trailer. Plaintiff was unconscious when police arrived, and he has no memory of the accident.

The causation element of negligence requires sufficient evidence for a reasonable jury to conclude that, but for some negligent action by the defendant, the plaintiff would not have been harmed. Collins v.Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250, 938 A.2d 1208. Evidence of injury alone is generally insufficient to show causation. Instead, the plaintiff must “rely on expert testimony” to demonstrate causation unless the circumstances are plain enough that “only common knowledge and experience are needed to comprehend it.” Sachs v. Downs Rachlin Martin PLLC, 2017 VT 100, ¶ 20, 206 Vt. 157, 179 A.3d 182 The absence of expert testimony or other viable evidence showing a causal link with the injury precludes a finding that the plaintiff sufficiently established that element. Bernasconi v. City of Barre, 2019 VT 6, ¶ 12, 209 Vt. 419, 206 A.3d 720; Lasek v. Vt. Vapor, Inc., 2014 VT 33, ¶ 15, 196 Vt. 243, 95 A.3d 447.

Plaintiff put on expert testimony at trial from a forensic engineer who opined that, at impact, “there wasn’t a four[-] foot safety gap or more between [plaintiff] and the trailer.”  The expert admitted, however, that there was “no physical evidence to establish where [plaintiff] was located” at any time before impact, and he was unable to provide conclusions on any causative factor leading up to the incident. The expert did not “know anything before [impact].” As such, he was unable to say whether there was in fact a “four[-]foot safety gap” between plaintiff and the trailer during the time leading up to impact or if the lack of such a gap, if any, was a causative factor in the collision. And he did not identify how, if at all, the truck’s speed or position or the driver’s alleged failure to better warn plaintiff provided any causal link between driver’s alleged negligence and plaintiff’s injury.

No other witness ever indicated what specific aspect of driver’s allegedly negligent actions caused plaintiff’s resulting harm. Because of plaintiff’s admitted inability to recall the incident, he could give no testimony on the subject. Absent specific evidence of causation, a jury would have to rely on mere speculation to determine what, if anything, was the causal link between driver’s actions prior to impact and plaintiff’s resulting injury. Absent the necessary evidence of causation, judgment as a matter of law must be affirmed. See Keegan v. Lemieux Sec. Servs., Inc., 2004 VT 97, ¶ 11, 177 Vt. 575, 861 A.2d 1135 (mem.) (recognizing that failure to prove any one element of negligence claim warrants judgment as matter of law).

Affirmed.

How Cited

SCOVT note: Where a loss of memory rendering the survivor of an accident incapable of testifying as to the accident is shown to be attributable to the  accident, it is generally presumed, in the absence of evidence to the contrary, that he exercised due care. Annot., Amnesiac as Entitled to Presumption of Due Care, 88 A.L.R.3d 622 § 3[a] (1978). Further, some jurisdictions reduce the burden of proof on the plaintiff when as a result of the incident the plaintiff has amnesia. In New York the theory is called the "Noseworthy" doctrine, after the case in which it was originally applied. Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948) See 8A Carmody-Wait 2d § 57:25 (Jury instructions addressing burden and degree of proof where action involves amnesia or death of victim).

Divided Court on interlocutory appeal reverses denial of summary judgment and holds Recreational Use Statute immunized defendants from liability for drowning of child on defendants’ “open and undeveloped” land adjacent to a day care.)

Katerina Nolan, as Administrator of the Estate of Parker J. Berry v. Stephen J. Fishman and Susan B. Fishman, 2019 VT 63 [filed September 6, 2019]

SKOGLUND, J. The question presented is whether Vermont’s Recreational Use Statute, 12 V.S.A. §§ 5791-5795, which provides limitations on landowner liability, is applicable to the undisputed tragic facts of the case. We find that the Recreational Use Statute applies and that defendants’ motion for summary judgment should have been granted. Therefore, we reverse the holding of the trial court and remand.

Defendants sought and were granted an interlocutory appeal. They primarily argue that the trial court erred by holding that the Recreational Use Statute did not immunize defendants from liability

Under this law owners who make their land and water available to the public for no consideration for recreational uses by clearly establishing a rule that an owner shall have no greater duty of care to a person who, without consideration, enters or goes upon the owner’s land for a recreational use than the owner would have to a trespasser.

Most importantly for our analysis, the statute defines “land” as, among other things, “open and undeveloped land, including paths and trails.”. § 5792(2)(A)(i).

The trial court first court concluded that Parker died in the backyard of the daycare, in a portion of defendants’ property that was “seamlessly integrated” with the daycare’s property, and thus the relevant portion of defendants’ land “was not the ‘open and undeveloped land’ that the Legislature had in mind in encouraging landowners to make their land open to the public for general recreation.” As such, the court determined that defendants were not entitled to the protection of Vermont’s Recreational Use Statute and granted in part the estate’s motion for partial summary judgment and denied defendants’ motion for summary judgment

The trial court concluded that the land “was at least partially ‘developed’ for the Daycare Business” due to various “improvements” on the land—namely a sandbox, mowed pathways, and a brook bridge. 4 We disagree with this determination based on the plain language of Chapter 12. The Legislature took care to express that “land” may include paths, trails, water courses, bridges, and walkways. Id. § 5792(2)(A)(i)-(iv). Furthermore, the Legislature expressly stated that “the presence of one or more of the following on land does not by itself preclude the land from being ‘open and undeveloped’: posting of the land, fences, or agricultural or forestry-related structure.” Id. § 5794(c). As protective legislation goes, this is quite comprehensive. We cannot imagine that the Legislature meant to revoke protections from 4 The trial court noted, “[i]t is also conceivable that despite the improvements mentioned, the land involved here is more fairly characterized as ‘open and undeveloped.’ ” Although our conclusion is based on the plain language of the statute, our examination of the aerial photographs—on which the trial court relied so heavily—supports our determination that the land is “open and undeveloped.” 8 landowners where, as here, pathways, bridges, and perhaps even sandboxes are built on their otherwise “undeveloped” land.

Our examination of the aerial photographs—on which the trial court relied so heavily—supports our determination that the land is “open and undeveloped.”

REIBER, C.J, dissenting. I disagree with the majority in how it applies the law to the facts of this case. In my view, the facts compel us to conclude that defendants’ property was “developed for commercial recreational uses.” 12 V.S.A. § 5792(2)(B)(i). Therefore, the recreational-use statute does not protect defendants from liability, and the trial court’s decision was correct. Accordingly, I respectfully dissent.

In practice, defendants’ land was used for, and developed for, commercial recreational uses, and Parker Berry died while on that property for that commercial recreational use. Therefore, defendants’ land is excluded from protection pursuant to the recreational-use statute with regard to Parker’s death. The trial court did not err in so concluding, and I respectfully dissent. I am authorized to state that Justice Robinson joins this dissent

SCOVT affirms the dismissal of investors’ claims against state actors in connection with Jay Peak EB-5 program, except reverses dismissal of claims of negligence and negligent misrepresentation, gross negligence, breach of contract and the implied covenant of good faith and fair dealing .

Sutton v. Vermont Regional Center, 2019 VT 71 [filed October 4, 2019] (amended and superceded by 2019 VT 71A) 

ROBINSON, J. Plaintiff investors appeal the dismissal of their claims against the Vermont Agency of Commerce and Community Development (ACCD) and current and former state employees arising from the operation of a federally licensed regional center in the United States Customs and Immigration Services (USCIS) EB-5 program. We reverse the dismissal of plaintiffs' claims of negligence and negligent misrepresentation against ACCD, gross negligence against defendants Brent Raymond and James Candido, and breach of contract and the implied covenant of good faith and fair dealing against ACCD. We affirm the dismissal of plaintiffs' remaining claims. 

Negligence. We conclude that plaintiffs have stated a claim for negligence based on ACCD's undertaking, and that the economic nature of their losses is not an impediment to such a claim [ We note that because of the plethora of exceptions to the broad formulation of the economic-loss rule, the Tentative Draft of the Restatement (Third) of Torts: Liability for Economic Harm articulates "a more limited principle: not that liability for economic loss is generally precluded, but that duties of care with respect to economic loss are not general in character; they are recognized in specific circumstances." Restatement (Third) of Torts: Liab. for Econ. Harm § 1 cmt. b (Tentative Draft No. 1, 2012) ("Stating the absence of a duty as a general rule can create confusion by seeming to threaten well-established causes of action, by leaving behind an uncertain and unwieldy number of exceptions, and by implying a needless presumption against the existence of a duty on facts not yet considered. The rule of this Section creates no such presumption. It merely means that duties to avoid causing economic loss require justification on more particular grounds than duties to avoid causing physical harm.")]. Plaintiffs have alleged sufficient facts to make out a “special relationship” between defendants and plaintiffs such that they may recover for their purely economic losses.

Negligent Misrepresentation. We conclude that plaintiffs have stated a claim for negligent misrepresentation under Restatement (Second) of Torts § 552(1)). 

Sovereign Immunity. We conclude that plaintiffs' claims are comparable to recognized causes of action against private persons and that the discretionary function exception to the State's waiver of sovereign immunity in the Tort Claims Act does not apply to these allegations. 

Gross Negligence against Individual Defendants. We conclude that certain individual defendants are absolutely immune from suit. That claim against another fails because plaintiffs have not alleged conduct by him that would overcome qualified immunity. That plaintiffs have not made out a claim of gross negligence against another individual but that. Plaintiffs have adequately alleged that Brent Raymond and James Candido are not shielded by qualified immunity and have made allegations that could establish gross negligence under the tort claims act. 

Breach of Contract and Covenant of Good Faith and Fair Dealing. We conclude that plaintiffs have made out claims for breach of contract and of the implied covenant of good faith and fair dealing sufficient to meet our lenient notice-pleading standards.

Third-Party Beneficiary Breach of Contract. We conclude that the trial court properly dismissed plaintiffs' claims for breach of contract.

Securities Fraud. We conclude that the trial court properly dismissed plaintiffs' claim of securities fraud under the Vermont Uniform Securities Act, 9 V.S.A. §§ 5501 and 5509, against all defendants. The claim falls squarely within an exception to the State's waiver of sovereign immunity through the Vermont Tort Claims Act, and as to the individual defendants, was not pled with the particularity required for averments of fraud under Vermont Rule of Civil Procedure 9(b). 

Breach of Fiduciary Duty Aiding, Abetting Breach of Fiduciary Duty and Breach of Implied Contract Breach-of-fiduciary-duty claims are distinct from ordinary negligence claims and rest on different elements of proof. Similarly, implied contract claims are distinct from contract claims. An implied-contract claim is not a contract claim. Because of inadequate briefing we do not address claims that the court erred in dismissing plaintiff’s claim of breach of fiduciary duty against all defendant, aiding and abetting breach of fiduciary duty against all defendants, and breach of implied contract against all defendants. 

Affirmed, except that the dismissal of the following claims is reversed:

• ·negligence against ACCD;
• ·negligent misrepresentation against ACCD;
• ·gross negligence against defendants Brent Raymond and James Candido; and
• ·Breach of contract and the implied covenant of good faith and fair dealing against ACCD.

The matter is remanded for further proceedings consistent with this opinion.

How cited

Note.  The foregoing opinion has been amended and superceded by the opinion reported as  2019 VT 71A . While a motion to reargue was pendiing on the issue of sovergin immunity ,the Court amended ts decision to reflect that plaintiffs withdrew their appeal of the trial court's dismissal of the negligent-misrepresentation claim against ACCD. Sutton v. Vermont Reg'l Ctr., 2019 VT 71A, n. 1. 'The mandae is amended  to read as follows:

Affirmed, except that the dismissal of the following claims is reversed: 

• negligence against ACCD; 
• gross negligence against defendants Brent Raymond and James Candido; and 
• breach of contract and the implied covenant of good faith and fair dealing against ACCD. 

The matter is remanded for further proceedings consistent with this opinion.

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.); Driscoll v. Wright Cut and Clean LLC, 2024 VT 49 (affirming judgment as a matter of law in negligence case for lack of specific evidence of causation)


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 dismissing tort claim against state on grounds of discretionary function..

Ingerson v. Pallito, 2019 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