Evans v. Cabot, No. 657-11-14 Wncv (Tomasi, J., May 27, 2016).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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VERMONT SUPERIOR COURT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 657-11-14 Wncv
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Marie Evans, │
Plaintiff, │
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v. │
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Town of Cabot, │
Defendant. │
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Opinion and Order on the Town’s
Motion for Summary Judgment
On January 14, 2013, the Town of Cabot “road crew” was removing brush and
tree limbs from the southbound side of South Walden Road in Cabot. The Town’s
entire road crew consisted of three workers, all of whom were involved in the work.
One was operating a “loader” – a heavy machine used primarily to push debris over
the embankment -- which projected somewhat into the traveled portion of the
southbound lane of the road. Plaintiff Marie Evans was driving southbound on the
road at an otherwise reasonable speed, did not see the loader, and collided with it at
full speed, without braking or taking other evasive measures. She was severely
injured. In this case, she seeks to establish the Town’s direct or indirect liability for
negligence, the failure to warn or an insufficient warning that the road was
obstructed by the loader. Disclaiming any kind of liability, the Town has filed a
motion for summary judgment.
1. Summary Judgment Standard
Summary judgment is appropriate if the evidence in the record, referred to in
the statements required by Vt. R. Civ. P. 56(c)(1), shows that there is no genuine
issue as to any material fact and that any party is entitled to a judgment as a
matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994)
(summary judgment will be granted if, after adequate time for discovery, party fails
to make showing sufficient to establish essential element of the case on which the
party will bear burden of proof at trial). The Court derives the undisputed facts
from the parties’ statements of fact and the supporting documents. Boulton v. CLD
Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 427. A party opposing
summary judgment may not simply rely on allegations in the pleadings to establish
a genuine issue of material fact. Instead, it must come forward with deposition
excerpts, affidavits, or similar evidence to establish such a dispute. Murray v.
White, 155 Vt. 621, 628 (1991).
2. Background
A review of the manner by which this case has unfolded thus far is helpful to
an understanding of Ms. Evans’ claim(s) and the Town’s motion. In the complaint,
Ms. Evans named two defendants, the Town and Mr. Cleo Keith Johnson, the
operator of the loader. She alleged that Mr. Johnson was operating the loader in an
unsafe fashion. She also alleged generally that both Mr. Johnson and the Town
failed to provide adequate notice to the traveling public, and her in particular, of
whatever hazards the road crew’s work may have presented, and did not comply
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with any applicable requirements of the Manual on Uniform Traffic Control Devices
(MUTCD). 23 V.S.A. § 1025 (adopting the MUTCD as “the standards for all traffic
control signs, signals, and markings within the State”). She asserted that the Town
had direct liability for the MUTCD compliance and had indirect liability for any
negligence on the part of Mr. Johnson.
Defendants then filed a motion to dismiss, arguing that Ms. Evans’ direct
claims against Mr. Johnson are barred by 24 V.S.A. § 901a. Subject to some
limitations not relevant here, that section precludes direct actions against
municipal employees for, among other things, personal injuries. Id. § 901a(b). It
requires that such claims be brought against the municipality, which may raise any
defense that would have been available to the employee, including individual
immunity defenses such as qualified immunity; but which may not raise any
defense that would not have been available to the employee, including “municipal
sovereign immunity.” Id. § 901a(c).
Ms. Evans did not oppose the request to dismiss the direct claim against Mr.
Johnson—she stipulated to it. At that point in the case, the parties had changed,
but not the claims, which remained as vague in the record as they appeared in the
complaint. The competing narratives of the parties starts to take shape in the
deposition transcripts of the road crew members; the State trooper who arrived at
the scene and was responsible for the investigation; Ms. Evans; and her MUTCD
expert.
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The testimony of the road crew members is to the following effect. They
arrived at South Walden Road to do what they anticipated would be a quick (hour
or less) job of removing brush and dead trees or limbs that might otherwise become
an obstacle in the traveled portion of the road. Signs warning drivers of the work
were put up in either direction by the foreman, Walter Churchill, at locations that
he believed would safely warn drivers of the work ahead. Doing so was his
responsibility alone and not Mr. Johnson’s, who had no involvement in it.
At the time of the accident, the loader was as far off the traveled portion of
the road as possible without going over the embankment but still projected
somewhat into the road. All available lights (“four-ways” and hazards) were on. All
three workers were wearing fluorescent safety vests. Mr. Churchill’s role was to cut
branches. Mr. Johnson’s was to operate the loader as needed. A third worker,
David Pike, was helping to throw debris for which the loader was not needed over
the embankment by hand.
The loader was not changing location at the time of the accident, although it
may have been pushing some debris over the embankment. Mr. Pike was walking
to or from the truck in which he had arrived. He was in the middle of the
northbound lane as Ms. Evans drove past him at, he estimates, 40–45 miles per
hour directly towards the loader. She had not slowed down as other vehicles coming
from her direction had. As she passed by Mr. Pike at full speed, he tried to get her
attention but she did not react. He then watched as she continued to drive down
the road and crash directly into the loader. The stretch of road she traveled leading
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up to the collision was a long straightaway. The loader was in plain view. She
never slowed down or attempted to avoid it. Mr. Pike never saw brake lights.
It was a clear, sunny day. The police report reflects that when Ms. Evans
was interviewed at the scene, she reported that the sun had obscured her view and
she had placed one of her hands in front of her eyes to block it. The officer
concluded: “The primary cause of this collision is M. Evans failed [to] recognize[ the
loader] parked in the roadway. A contributing factor in this collision may have
[been] the sun which could have obstructed M. Evans[’] view.”
Ms. Evans’ version of events, as revealed at her deposition, is considerably
different. According to her, from the direction she was traveling, there was no sign
warning of work ahead. Mr. Pike was not in the middle of the road attempting to
get her attention. She was not blinded by the sun with her hand in front of her
eyes. The loader was not plainly visible, or visible at all, as she drove down the
straightaway, and likely was hidden by the darkness of shadows. Just before the
moment of impact, however, it lunged into the road and unexpectedly crashed into
her.
According to Ms. Evans’ expert, Richard Wobby, Jr., the work zone was not
set up in a manner that was safe and was not compliant with the MUTCD.1 He
concludes that if any of the steps he suggests had been taken, the accident could
have been avoided; and if all of them had been taken, it would have been avoided.
1Mr. Wobby, in his report, focuses almost exclusively on the technical issues of
MUTCD compliance rather than the more general question of safety of the work
zone.
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3. The Summary Judgment Filings
The Town seeks summary judgment as follows: (1) the Town has
governmental immunity as against any direct claim of negligence against itself; (2)
as a factual matter, there is no legally cognizable indirect claim against the Town
due to Mr. Johnson’s conduct; (3) the Court should pre-emptively deny any motion
to amend asserting a claim based on Mr. Churchill’s conduct because qualified
immunity necessarily protects against any such claim and, in any event, he did not
violate any mandatory provision of the MUTCD; and (4) in all events, as a matter of
law, Ms. Evans’ negligence exceeded any negligence of the Town or any of its agents
pursuant to 12 V.S.A. § 1036 (comparative negligence). In support of its motion, the
Town submitted a statement of undisputed facts that generally corresponds to its
version of events as set forth above.
In opposition to summary judgment, Ms. Evans focuses almost exclusively on
whether any mandatory provision of the MUTCD was violated and whether the
Town retains its governmental immunity in the circumstances of this case. She
supported her opposition with her own statement of undisputed facts that is focused
on showing a violation of the MUTCD. It generally is not calculated to show that
the facts—the basic narrative of events on the day of the accident as portrayed by
the Town—are disputed. In other words, she appears to have abandoned any
negligence claim based on allegations that Mr. Johnson erratically drove the loader
into the road and crashed into her. Her claim is predicated on whether the work
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zone was set up to provide reasonable notice of a dangerous obstacle (the loader) in
the road to the driving public—a basic failure to warn claim.
4. The role of MUTCD in this case
The parties’ heavy focus on whether a provision of the MUTCD was violated
in this case may have confused matters. Ms. Evans, and to some extent the Town,
has approached this case as though the proof or lack of proof of a violation of the
MUTCD controls the questions of liability and immunity.
As for liability, 23 V.S.A. § 1025 (adopting the MUTCD) presumably is a
“safety statute” to the extent it prescribes particular conduct. See Dalmer v. State,
174 Vt. 157, 164 (2002) (noting the adoption of Restatement (Second) of Torts §
286). In Vermont, the violation of a safety statute does not prove negligence.
Rather, it gives rise to a rebuttable presumption of negligence (duty and breach).
Cooper v. Burnor, 170 Vt. 583, 585 (1999). “When the [opposing] party produces
evidence that fairly and reasonably tends to support a finding that the presumed
fact does not exist, the presumption disappears.” Cooper, 170 Vt. at 585. In that
event, the presumption is a “bursting bubble.” Id. at 586 (Dooley, J., dissenting).
Here, even if Ms. Evans can prove that the MUTCD was violated, the Town clearly
has evidence that, regardless, its agents were not negligent because they gave
travelers reasonable warning of any hazard caused by their conduct. Any
presumption of negligence, thus, disappears. The alleged violation of the safety
statute still may help to prove negligence, but the question turns to the larger one of
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negligence (and causation), rather than simply whether a safety statute was
violated.
Also, even if Plaintiff can prove negligence, the Town would still have the
opportunity to establish that the Town is entitled to qualified immunity regarding
any indirect liability that might attach to it as a result of a claim against a Town
employee. See 24 V.S.A. § 901a(c); Hudson v. Town of East Montpelier, 161 Vt. 168,
171 (1993).
5. Municipal Sovereign Immunity
The Town argues that municipal sovereign immunity bars any direct claim of
negligence against it. Its argument is based on the governmental–proprietary
dichotomy that, in Vermont, still is used to determine the breadth of a
municipality’s sovereign immunity. See Hillerby v. Town of Colchester, 167 Vt. 270,
272 (1997) (“Traditionally, courts have held municipalities liable only where the
negligent act arises out of a duty that is proprietary in nature as opposed to
governmental.”). A town’s maintenance of its highways is a governmental function
for which the town retains immunity. McMurphy v. State, 171 Vt. 9, 14 n.2 (2000)
(“This Court has long held that the maintenance of highways is a governmental
function.”).
Ms. Evans argues, however, that the circumstances in this case somehow
make it distinguishable from those cases in which towns are properly found to have
retained immunity in the course of maintaining their highways because here the
Town abused its discretion or failed to exercise it altogether (by failing to
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implement the MUTCD) and that the Vermont Supreme Court permits precisely
these types of claims directly against towns, citing Hudson.
Ms. Evans’ direct claim against the Town plainly arises out of the
maintenance of a highway by the Town. That maintenance activity is a
governmental function and thus governmental immunity attaches. There is no
exception to that immunity because discretion was abused, withheld, or exercised in
some manner that led to harm, and Ms. Evans points to no authority whatsoever for
that proposition.
Additionally, Hudson is completely irrelevant on this issue. There, the Court
permitted a negligence claim directly against the town employees for leaving a road
in a dangerous condition without taking any precautions. While the plaintiff
initially had sued the town as well, she dropped that claim and proceeded against
the employees only. See id. at 170. The principal question presented was whether
the employees had qualified official immunity, not whether the town had municipal
sovereign immunity.
Ms. Evans’ claim directly against the Town is barred by municipal sovereign
immunity.
6. Any Claim Predicated on Mr. Johnson’s Conduct
On this summary judgment record, Ms. Evans has dropped any claim that
Mr. Johnson negligently drove the loader into the road in a negligent fashion and
crashed into her. Her claim is based solely on whether the work zone violated the
MUTCD and whether it was set up in a way that provided reasonable notice to
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drivers of the danger ahead. The problem with that claim is that it is undisputed
that Mr. Johnson did the only things he could do in that regard: (1) he turned on all
available warning lights on the loader; (2) he operated it in a non-negligent fashion;
and (3) he wore his fluorescent safety vest.
It is insufficient for Plaintiff simply to allege negligence of some kind
regarding the work zone and then attribute it to Mr. Johnson because he was at the
scene. At a minimum, such allegations provide an insufficient response to a motion
for summary judgment. On this record, it is undisputed that Mr. Johnson had no
authority to place warning signs in the road, to decide whether someone should be a
flagger, or to ensure compliance with the MUTCD. In short, there no longer is any
viable negligence claim against him and, therefore, no viable claim against the
Town based on his alleged conduct.
7. The Non-Existent Motion to Amend, Qualified Immunity, and
Comparative Negligence
It is undisputed that the only worker at the site with the authority to take
whatever steps were reasonable to provide warnings to the public was Mr.
Churchill, the foreman, and he did assume that duty. Recognizing that Ms. Evans’
direct claim against the Town and indirect claim based on Mr. Johnson’s conduct
are defective, and that no claim was pleaded based on Mr. Churchill’s conduct, the
Town asks the Court to pre-emptively strike any motion to amend to add such a
claim. The Town argues that such a claim would fail because Mr. Churchill’s
conduct is protected by qualified official immunity. It also asserts that Ms. Evans
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was so obviously more negligent than any agent of the Town that her lurking claim
would necessarily fail.
In response to these arguments, the Court concludes that Ms. Evans has not
filed a motion to amend. The Court declines to issue an advisory opinion regarding
a motion that does not exist.
That result is especially compelling in light of the circumstances of this case
and the Town’s qualified official immunity argument. To properly analyze qualified
immunity, the Court must be able to scrutinize the sort of discretion that is in
dispute. See Searles v. Agency of Transp., 171 Vt. 562, 564 (2000) (the MUTCD “is
more of a guidebook for the installation of signs than a ‘specific prescription’”
(citation omitted)); Hudson, 161 Vt. at 175 (“case-by-case examination” is necessary
to determine whether the “decisions required a weighing of the type of public policy
considerations”).
Here, for example, to assess whether immunity would apply the Court must
examine the particular facts and events that occurred in connection with the safety
measures taken at the work zone. The Court may not undertake that analysis in a
vacuum, without the necessary facts. On this record, which so heavily focuses on
MUTCD compliance and not on negligence itself, the Court simply declines to
speculate on the details of any motion to amend, if one is ever filed. Nor can the
Court make an assessment of any prejudice that might counsel against allowing
such an amendment.
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For the same reason, the Court declines to speculate as to whether Ms. Evans
was, as a matter of law, more negligent than “any” Town actor. The Court notes,
however, that such determinations are, typically, matters solely within the province
of the finder of fact.
Order
For the foregoing reasons, the Town’s motion for summary judgment is
granted, and the case is dismissed.
Dated this __ day of May 2016 at Montpelier, Vermont.
_____________________________
Timothy B. Tomasi,
Superior Court Judge
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