Bostock v. City of Burlington
30 A.3d 651
Vt.2011Background
- Morton and Kathryn Bostock appeal the trial court’s denial of their motion to revise its summary-judgment order granting the City of Burlington summary judgment on Count VIII (lateral support).
- Count VIII alleged negligent withdrawal of lateral support under Restatement (Second) of Torts sections 817 and 819.
- The City dumped tree-removal debris in 1970s; a 1976 fire led to long erosion and hillside changes affecting the Bostocks’ land.
- The Bostocks purchased the property in 1977 and allege ongoing subsidence and erosion, including an unevenly settled garage built in 1989.
- They had an oral agreement in 1977 with City officials to restore and maintain the north land at their own expense to curb erosion.
- The trial court initially dismissed Count VIII as time-barred by 12 V.S.A. § 511 and, alternatively, found insufficient evidence of essential elements; it later denied revisions seeking to reconsider and to introduce a new theory with a supplemental affidavit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court abused its discretion in denying the motion to revise. | Bostocks claim the court misunderstood their theory and should have allowed revision to clarify it. | City contends revision was improper because it presented a new theory raised too late and would be unfair to proceed. | No abuse; court properly exercised discretion denying revision. |
| Whether the clarified theory and evidence support a prima facie loss of lateral support claim. | Expert affidavits clarify a continuing causal link and sufficiency of elements. | Theory was not timely raised and evidence did not establish essential elements within the relevant period. | Court did not reach its merits on this issue; discretionary denial stands. |
Key Cases Cited
- Putney School, Inc. v. Schaaf, 157 Vt. 396, 599 A.2d 322 (1991) (trial court discretion on reconsideration under Rule 54(b))
- In re Burlington Bagel Bakery, Inc., 150 Vt. 20, 549 A.2d 1044 (1988) (abuse-of-discretion standard in reconsideration of summary judgment)
- Crosby v. Great Atl. & Pac. Tea Co., 143 Vt. 537, 468 A.2d 567 (1983) (affirming denial of reconsideration under abuse-of-discretion review)
- Fragoso v. Lopez, 991 F.2d 878, 888 (1st Cir. 1993) (trial court discretion to reopen proceedings for new theory or evidence)