Morway v. Trombly
Morway v. Trombly
Opinion of the Court
Plaintiff Jill Morway, who filed a negligence action against defendants Town of Milton and its snowplow operator Bruce Trombly after being injured in a car accident allegedly caused by Trombly, appeals the superior court’s decision granting defendants’ joint motion for summary judgment. Plaintiff does not challenge the grant of summary judgment in favor of the Town, but contends that the court erred in granting Trombly summary judgment based on its conclusion that his operation of the snowplow was a discretionary duty immunizing him from suit, and that, in any event, plaintiff failed to demonstrate that Trombly breached any legal duty owed to her. We conclude that Trombly’s operation of the snowplow was a ministerial, rather than a discretionary, duty that did not accord Trombly immunity from plaintiffs suit. Further, we conclude that the facts alleged by plaintiff were sufficient to avoid summary judgment and allow a jury to determine whether Trombly was negligent, and, if so, whether his negligence was a proximate cause of the accident. Accordingly, we reverse the superior court’s grant of summary judgment in favor of Trombly, and remand the matter for further proceedings.
At the time of the accident, which occurred on the morning of January 1,1999, plaintiff was a passenger riding in the front seat of a car driven by her husband, Kyle Morway. Their car came upon and began following Trombly, who was operating a snowplow truck for the Town. There were snowdrifts on the road, and the wind was blowing. At one point, another vehicle approached the truck from the opposite direction. After passing the truck, that vehicle collided with the Morways’ vehicle. Apparently, both drivers were blinded by blowing snow caused by the truck’s plow hitting the snowdrifts. The investigating police officer concluded that the primary cause of the accident was the Morways’ vehicle drifting to the left of center on the road, and the secondary cause was the Morways’ vehicle following the snowplow truck too closely.
On appeal, plaintiff argues that the court erred in granting summary judgment to Trombly based on the doctrine of qualified official immunity because his operation of the snowplow truck concerned a ministerial act not performed in good faith. Plaintiff also argues that the court erred in concluding that Trombly owed her no legal duty, and that she failed to demonstrate that he breached any legal duty owed to her. Finally, plaintiff contends that there were material facts in dispute that preclude summary judgment.
I.
When we review a decision to grant summary judgment, we apply the same standard as that applied by the trial court: summary judgment is appropriate if the moving party proves that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. White v. Quechee Lakes Landowners’ Ass’n, 170 Vt.
II.
A.
The primary issue we must resolve is whether Trombly was entitled to judgment as a matter of law based on the doctrine of qualified official immunity. But before considering that doctrine as it applies to the facts of this case, we address the apparent aberration raised by the possibility of allowing a Town to be immune from suit while holding its employees personally liable for performing routine duties in good faith within the scope of their employment.
Municipal immunity is a common-law doctrine dating back to the mid-1800s in Vermont. Hillerby v. Town of Colchester, 167 Vt. 270, 272, 706 A.2d 446, 447 (1997). To alleviate its harsh results, many states abolished general municipal immunity and eventually replaced it with specific statutes addressing municipal liability in particular situations. Id. at 284-85, 706 A.2d at 454 (Johnson, J., dissenting). Vermont, however, continues to limit the scope of general municipal immunity only through the arbitrary “governmental-proprietary distinction.” Hudson v. Town of East Montpelier, 161 Vt. 168, 177-78 n.3, 638 A.2d 561, 567 n.3 (1993) (detailing universal criticism of doctrine). While acknowledging the need to reform the rules of municipal liability in Vermont, this Court has determined that the Legislature is better suited, because of its fact-finding and problem-solving process, “to fashion a more reasonable and workable doctrine.” Hillerby, 167 Vt. at 276, 706 A.2d at 449.
Thus far, however, the Legislature has maintained the current system of municipal immunity, and has done nothing to protect lower-level municipal employees from tort suits in situations in which the town is immune from suit. The Legislature has not extended the state’s waiver of sovereign immunity to municipalities in Vermont’s tort claims act. See 12 V.S.A. § 5601 (“state of Vermont” is liable for negligent or wrongful act of “employee of state” acting within scope of employment to same extent as private person would be). Nor has the Legislature required tort suits to be brought exclusively in the name, of the municipality, cf. 12 V.S.A § 5602 (when state employee
As a result, there will be situations in which municipal employees must answer to tort suits claiming that the employees committed negligent acts while acting within the scope of their employment, even though the municipality is immune from suit. It is important to note, however, that although the employee in such circumstances may technically incur personal liability should negligence be found, there generally is no personal liability in fact. As a practical matter, municipalities, such as the Town of Milton in this case, purchase insurance and defend and indemnify their employees against liability for judgments based on their acts performed within the scope of their municipal duties. In general, municipalities waive their sovereign immunity to the extent of insurance coverage. See 29 V.S.A. § 1403. But the Legislature “has specifically authorized municipalities to enter into intermunicipal agreements for liability insurance purposes, see 24 V.S.A. § 4942, participation in which does not constitute a waiver of immunity.” McMurphy v. State, 171 Vt. 9, 15, 757 A.2d 1043, 1048 (2000). Thus, municipalities are able to defend and indemnify their employees in situations such as the present case.
B.
We now return to the issue of whether Trombly was entitled to judgment as a matter of law based on the court’s determination that he is immune from plaintiffs suit. Under the doctrine of qualified official immunity, which we have applied in cases involving municipal
If we determine that Trombly’s operation of the snowplow truck was a ministerial rather than a discretionary act, Trombly is not immune from suit, regardless of whether he acted in good faith. Accordingly, we first address whether the alleged negligent conduct was ministerial or discretionary in nature. In reviewing this prong of the qualified-immunity test in past cases, we have emphasized the importance of considering the specific facts of each case in light of the purposes behind the immunity doctrines, rather than relying on literal or dictionary definitions of the terms. Johnson v. State, 165 Vt. 588, 589-90, 682 A.2d 961, 963 (1996) (mem.); Hudson, 161 Vt. at 172, 638 A.2d at 564.
In Hudson, we recognized that
the doctrine of qualified official immunity serves primarily to shield government employees from exposure to personal tort liability that would (1) hamper or deter those employees from vigorously discharging their duties in a prompt and decisive manner, and (2) unfairly subject employees who have a duty to exercise discretion regarding matters of public policy to the judgment of those acting within a judicial system that is ill-suited to assess the full scope of factors involved in such decisionmaking.
161 Vt. at 172, 638 A.2d at 564. Thus, courts will not hold government employees personally liable “for policy decisions that are based on factors such as availability or allocation of public resources or public acceptance because traditional tort standards do not provide an adequate basis for evaluating these types of decisions in coordinate branches of government.” Id. at 173-74, 638 A.2d at 565.
We applied these principles to the facts of Hudson, which concerned town employees sued for their alleged negligence in
We have virtually the same situation here. Trombly may have had the discretion to make decisions concerning the speed of the truck or the position or angle of the plow, but these are not the type of discretionary determinations that immunize governmental employees from liability for their negligence. See Ham v. Los Angeles Cty., 189 P. 462, 468 (Cal. 1920) (“it would be difficult to conceive of any official act, no matter how directly ministerial, that did not admit of some discretion in the manner of its performance, even if it involved only the driving of a nail”); cf. Andolino v. State, 624 P.2d 7, 9 (Nev. 1981) (decision regarding which areas of highway to plow was operational, and not discretionary, in nature). Accordingly, we conclude that Trombly was not entitled to summary judgment based on the doctrine of qualified official immunity.
We recognize that it may seem unfair to some that a municipal snowplow operator may be subject to personal liability for doing a difficult job under difficult circumstances. The issue in this appeal is whether Trombly should be immune from suit and any potential liability, not whether he is actually liable to plaintiff for his actions. Plaintiff still must prove negligence on Trombly’s part. In any event, we have an obligation to abide by the principles behind the policy of providing limited immunity from suit to government employees. We may not ignore those principles to reach a certain result. Doing so would distort the policy for future immunity cases and lead us back to the morass of cases seeking to distinguish ministerial and discretionary acts through a literal interpretation of the terms. Under the principles outlined in Hudson, Trombly plainly was not
III.
The superior court determined, however, that, notwithstanding issues of immunity, (1) plaintiff could not show that Trombly breached a duty owed to her; and (2) the doctrine of res ipsa loquitur (the thing speaks for itself) is inapplicable under the facts of this case. See Black’s Law Dictionary 1311-12 (7th ed. 1999) (res ipsa loquitur is doctrine providing that, in some circumstances, mere fact of accident’s occurrence raises inference of negligence). In the court’s view, plaintiff could not rely on the principle of res ipsa loquitur to show that Trombly was negligent because there were no gaps in the facts to infer and, in any case, plaintiff could not show that Trombly owed her a legal duty.
The superior court’s ruling that plaintiff could not prove Trombly owed her a legal duty is plainly wrong and inconsistent with its acknowledgment that Trombly, like all drivers, had a general duty to maintain a proper lookout and operate his truck in a safe manner. See Smith v. Gainer, 153 Vt. 442, 445-46, 571 A.2d 70, 71-72 (1990); see also 23 V.S.A. § 1081(a) (no driver shall drive vehicle on highway at speed that is greater than is reasonable or prudent under conditions, having regard for actual and potential hazards then existing).
We also disagree with the court’s ruling that, as a matter of law, plaintiff could not prove negligence on the part of Trombly. The facts, viewed most favorably to plaintiff, see Pierce v. Riggs, 149 Vt. 136, 139, 540 A.2d 655, 657 (1987) (facts asserted by party opposing summary judgment, if supported by affidavits or other evidentiary material, are regarded as true), revealed that Trombly was traveling approximately thirty miles per hour when he struck high snowdrifts in the road on a windy winter day. They further indicated that Trombly was familiar with the blinding “white-outs” that can be caused by a plow striking drifts, that he observed the vehicle coming toward him from the other side of the road, that he knew at one point that a car was following him, and that he did not slow down before striking the drifts immediately preceding the accident. The parties disputed whether Trombly realized at the time he struck the drifts that the Morway vehicle was still following him.
Finally, while we agree with the superior court that the doctrine of res ipsa loquitur generally applies only when there is a gap in the evidence and some facts are left to inference, see Black’s Law Dictionary, supra, at 1312 (application of doctrine presupposes that some part of causal process is known, but that evidence connecting defendant’s act or omission with accident’s causal process is lacking), the parties have not briefed the issue of whether the court properly rejected plaintiffs partial reliance on res ipsa loquitur. Moreover, the record on appeal is insufficient for us to determine whether an instruction on res ipsa loquitur would be appropriate should this case come before a jury. In any event, regardless of the nature of plaintiffs theory, she has alleged sufficient facts supported, by. affidavits or other evidentiary material to reach the jury on the question of whether Trombly was negligent.
Reversed and remanded.
Concurring Opinion
concurring. As the majority observes, we are once again confronted with the potential aberration of a town employee being held personally liable for the good faith performance of his duties within the scope of his employment when the employer Town is immune from suit. Although I disagree with the Court’s
I write separately to note that, in addition to the majority’s identification of potential legislative responses to the quandary of exposure of municipal employees to tort liability in situations in which the town is immune from suit (see 173 Vt. at 270-71, 789 A.2d at 968-69), legislative remedies may exist in the narrower context of “snow and ice” or “weather” immunity statutes. Thus, for example, some legislatures have chosen to extend immunity to municipal employees for claims arising from weather conditions on highways. See, e.g., 745 Ill. Comp. Stat. 10/3-105 (2001).
A legislative response which extends immunity to lower-level municipal employees only for “weather” or “snow and ice” is, of course, open to criticism from those who would prefer to see a broader “modernization” of our law on municipal liability. As the dissents of Justice Dooley and Justice Johnson in Hillerby v. Town of Colchester, 167 Vt. 270, 276-94, 706 A.2d 446, 449-60 (1997), amply demonstrate, consensus on the need for change of the law is much easier to reach than agreement on how to change the law. At the very least, however, our decision in this case should prompt the Legislature to exercise the fact-finding and problem-solving process we have previously identified as better suited for this area of the law. Id. at 276, 706 A.2d at 449.
I concur with the majority’s opinion exposing municipal snowplow operators to individual personal liability for a good faith attempt to carry out the duties assigned to them because current law compels the result — not because the result makes sense.
Reference
- Full Case Name
- Jill Morway v. Bruce Trombly and Town of Milton
- Cited By
- 26 cases
- Status
- Published