Paul Civetti v. Selby Turner &amp; Town of Isle La Motte

.     This exception is designed to protect public officers from suffering legal

consequences for making the kind of difficult decisions that officials are often required to make.

See Gaubert,

499 U.S. at 323

(“[T]he purpose of the exception is to prevent judicial second-

guessing of legislative and administrative decisions grounded in social, economic, and political

policy through the medium of an action in tort . . . .” (quotation omitted)).

¶ 5. In analyzing the first prong, the trial court determined that deciding whether to alter

town roads was discretionary in nature because there was no explicit policy mandating such action.

It noted that the Town had not adopted any policy that would require the widening of Main Street,

and further, the Town Road and Bridge Standards did not require municipalities to alter their

existing infrastructure. Turning to the second prong, the trial court determined that deciding

whether to widen Main Street was necessarily grounded in the kinds of public-policy

considerations that the qualified-immunity doctrine was designed to protect. It noted that the road

commissioner must weigh factors such as safety and cost in making decisions about highway

projects, considerations often steeped in public policy.

¶ 6. Plaintiff appeals, arguing that the road commissioner’s duty to maintain Main Street

in compliance with the Town’s adopted road standards was ministerial in nature and thus

defendants are not entitled to qualified immunity. Plaintiff further argues that the road

commissioner had a ministerial duty to widen Main Street that flowed from his duty to maintain

the town roads, a duty delegated to him by the Selectboard. Plaintiff also asserts that disputed

material facts remain regarding the Town’s duty to maintain Main Street, namely whether

widening Main Street was an “alteration” or routine “maintenance.”

¶ 7. “We review a grant of summary judgment de novo, using the same standard as the

superior court.” Tillson v. Lane,

2015 VT 121, ¶ 7

200 Vt. 534

133 A.3d 832

. “Summary


                                                  3
judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.’ ” Alpine Haven Prop. Owners’

Ass’n, Inc. v. Deptula,

2020 VT 88, ¶ 22

213 Vt. 507

245 A.3d 1245

 (quoting V.R.C.P. 56(a)).

On the one hand, “we accept as true allegations made in opposition to the motion for summary

judgment,” and on the other, “[t]he party opposing summary judgment may not rest upon the mere

allegations or denials in its pleadings, but . . . must set forth specific facts showing that there is a

genuine issue for trial.”

 (quotation omitted).

       ¶ 8.    “Under the doctrine of sovereign immunity, claims against the State are barred

unless immunity is expressly waived by statute.” Kane v. Lamothe,

2007 VT 91, ¶ 6

182 Vt. 241

936 A.2d 1303

 (quotation omitted). The Vermont Tort Claims Act waives the State’s sovereign

immunity in certain circumstances, including for the acts of state or municipal employees and

officials meeting certain elements. See 12 V.S.A. § 5601 et seq.; see also Civetti I,

2020 VT 23

,

¶ 33 (holding that municipal “officials” and “employees” are both protected for purposes of

statutory-immunity scheme). “Absolute immunity is generally afforded to judges . . . legislators,

and the highest executive officers,” while “[o]nly qualified immunity is extended to lower-level

officers, employees, and agents.” O’Connor v. Donovan,

2012 VT 27, ¶ 6

191 Vt. 412

48 A.3d 584

 (quotation omitted). The second form of immunity is qualified in the sense that an official

must show they were: “(1) acting during the course of their employment and . . . within the scope

of their authority; (2) acting in good faith; and (3) performing discretionary, as opposed to

ministerial acts.”

 (quotation omitted).

       ¶ 9.    “To be within the scope of employment, conduct must be of the same general nature

as, or incidental to, the authorized conduct.” Brueckner v. Norwich Univ.,

169 Vt. 118, 123

730 A.2d 1086, 1091

 (1999). Conduct falls outside the scope of employment if it is different in kind

from that which is approved by the principal, far outside of the authorized time and space, or too

attenuated from achieving the principal’s purposes.

 “This Court has adopted the federal


                                                     4
standard for good faith,” which hinges “upon the objective reasonableness of the official’s

conduct.” Amy’s Enters. v. Sorrell,

174 Vt. 623, 624-25

817 A.2d 612, 617

 (2002) (mem.). “Such

acts are objectively reasonable if an officer of reasonable competence could have made the same

choice in similar circumstances.”

Id. at 625

817 A.2d at 617

. As noted above, courts consider

whether an act is discretionary or ministerial by asking: (1) “whether the challenged act involves

an element of judgment or choice, or whether a statute, regulation, or policy specifically prescribes

a course of action for an employee to follow”; and, if the court determines that the challenged act

involves judgment or choice, (2) “whether that judgment is of the kind that the discretionary

function exception was designed to shield.” Searles,

762 A.2d at 813-14

 (quotation

omitted). “[T]he [discretionary-function] exception ‘protects only governmental actions and

decisions based on considerations of public policy.’ ”

 (quoting Gaubert,

499 U.S. at 323

).

“[T]o survive a motion for summary judgment, a plaintiff must allege facts sufficient to overcome

the presumption that the discretion involved policy considerations.” Est. of Gage v. State,

2005 VT 78, ¶ 5

178 Vt. 212

882 A.2d 1157

.

       ¶ 10.   On appeal, plaintiff argues that defendants are not entitled to qualified immunity

because deciding whether to widen Main Street was ministerial as opposed to discretionary. First,

plaintiff argues that the decisions at issue here did not involve public-policy considerations because

they did not require the road commissioner to balance potential benefits with risks to the public.

In support of this assertion, plaintiff alleges that the road commissioner failed to attend mandatory

trainings as well as familiarize himself with and adhere to the Town Road and Bridge Standards,

describing these omissions as “ministerial.” But while these omissions may potentially be

considered ministerial, they have no bearing on the nature of the decision at the center of this

appeal: whether to widen the road surface of Main Street.

       ¶ 11.   In applying the discretionary-function exception, it is not the character of the office

or employment that must be evaluated, but the character of the action or omission. See Searles,


                                                  5

 (noting that “a court must determine whether the challenged act

involves [policy considerations]” (emphasis added)); Libercent v. Aldrich,

149 Vt. 76, 81

539 A.2d 981, 984

 (1987) (“Whether qualified official immunity exists in a particular situation depends

upon the nature of the specific acts and omissions complained of, and not upon the nature of the

office held or the general nature of the activity involved.”). Here, it is plain that the decision of

whether to widen the road surface of Main Street necessarily involves “an element of judgment or

choice,” rather than a statutory mandate or employee policy. Searles,

.   The undisputed facts establish that the road commissioner was required to exercise

considerable discretion, weighing considerations of cost, safety, environmental, and aesthetic

factors in carrying out his office. These same factors are central to determining whether to alter a

town highway by increasing its width, rendering such a decision discretionary in nature. See Est.of

Gage,

2005 VT 78, ¶ 7

(compiling cases exhibiting discretionary decision-making).

¶ 12. The Court’s analysis in Gage, is instructive. There, the plaintiff asserted that

infrastructure guidelines mandated that guardrails be installed in certain circumstances, rendering

an official’s decision to omit installing a guardrail ministerial. We concluded that because the

guide’s criteria were suggested, judgment was necessarily required to determine whether the

suggested standards should be adopted. Id. ¶ 10. We therefore rejected the plaintiff’s argument,

holding that “the [g]uide does not purport to impose a mandatory calculus, but merely suggested

criteria.” Id. ¶ 9 (quotation marks omitted).

¶ 13. The circumstances are similar here. Although the guide mandates construction

standards, the adopted roadway regulations apply only to “new or substantially reconstructed

roadways.” Main Street is not a new or substantially reconstructed roadway and so the Town Road

and Bridge Standards are inapplicable. The record contains no evidence tending to show that the

Town, through either its Selectboard or road commissioner, chose to newly build Main Street or

to substantially reconstruct the same. Thus, like the criteria in Gage, the Town Road and Bridge

6
Standards become binding only after the initial choice of whether to reconstruct the road is made

based on policy considerations. See id., ¶ 10. This is the critical distinction here. Because

preexisting infrastructure need not comply with the Town Road and Bridge Standards, these

standards were inapplicable to Main Street. Thus, the decision at issue here—not to widen the

road—was based on policy considerations and was not the type of ministerial act commanded by

the Town Road and Bridge Standards.

¶ 14. Because we conclude that the omissions here involved judgment, we must apply

the second prong of the Gaubert analysis, asking whether this is the kind of decision that the

discretionary-function exception was designed to shield. See Searles,

. Plaintiff cites various authorities, including case law, treatises, and Restatements, in support

of his contention that the road commissioner’s omission does not deserve protection under the

discretionary-function exception. First, plaintiff points to several cases in which maintenance and

repair are characterized as ministerial acts. Second, plaintiff quotes our decision in Hudson v.

Town of East Montpelier,

161 Vt. 168

638 A.2d 561

 (1993), in which we quote a treatise for the

propositions that “[o]ne who repairs the street can do a good job without provoking a citizen suit”

and “good operation of the street repair department does not harm people, but on the contrary

makes their travel safer.” Hudson,

161 Vt. at 172-73

638 A.2d at 564

-65 (quoting W. Keeton,

Prosser & Keeton on the Law of Torts § 132, at 1065 (5th ed. 1984)). Finally, plaintiff quotes the

Restatement (Second) of Torts, which provides “the repair of highways” as an example of a

ministerial act. Restatement (Second) of Torts § 895D, cmt. h (1979).

       ¶ 15.   Plaintiff’s argument rests on the assumption that widening Main Street is an

exercise in maintenance. But plaintiff’s voluminous citations miss the point—this is not an

instance of highway repair or maintenance but one of alteration and reconstruction. Thus, the

majority of cases plaintiff cites are distinguishable. For instance, in our decision in Sagar v.

Warren Selectboard,

170 Vt. 167

744 A.2d 422

 (1999), the omission at issue, which this Court


                                                 7
held to be ministerial, was failing to plow a Class 3 road so that the plaintiff could access his

property.

Id. at 168

744 A.2d at 424

. This can be differentiated from the instant case because the

plaintiff in that case relied on a statute requiring Class 3 roads to be “negotiable under normal

conditions all seasons of the year by a standard manufactured pleasure car.”              19 V.S.A.

§ 302(a)(3)(B). Thus, the act or omission in Sagar was required by a statute that “specifically

prescribe[d] a course of action for an employee to follow,” meaning that it was not the kind of act

that involve[d] an element of judgment or choice.” Searles,