Cheney v. City of Montpelier, 27 A.3d 359

Cheney owns an apartment building on Main Street in Montpelier; a water main adjacent to his property ruptured at 2:00 a.m. on February 4, 2009, flooding the basement and causing about $2,980 in damages.
The ruptured pipe was a cast-iron section about ten feet long, possibly around a century old, with corroded exterior that may have weakened it; it lay over five and a half feet underground to avoid frost damage.
The City’s water system had prior breaks nearby since 1995; the City repaired those breaks but did not replace the aging cast-iron sections.
Landowner sued in small claims for roughly $4,600, alleging negligent maintenance or failure to replace the water main; City claimed due care under standards and municipal immunity.
The small claims court ruled for landowner, finding the City negligent in maintaining the system and failing to replace the pipe; the trial court reversed, holding insufficient evidence of negligence or breach.
On review, the Vermont Supreme Court affirmed the trial court on alternate grounds, holding Cheney failed to prove the essential elements of negligence and that the passive condition of land does not support liability under Restatement § 371.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Cheney proved breach of duty in City’s maintenance	Cheney argues City failed to replace aging pipe, constituting breach of duty.	City contends it complied with standards and allocated resources reasonably.	Cheney failed to prove breach; affirmed on alternate grounds.
Whether Restatement § 371 supports liability for an unreasonable risk from passive land conditions	City’s repeated breaks show unreasonable risk creating liability under § 371.	There was no affirmative act creating an unreasonable risk; passive land condition cannot support liability.	No liability under § 371; affirmed.

Lunenberg Fire Dist. No. 2 v. Maciejko, 171 Vt. 542 (2000) ((mem.))
Krupp v. Krupp, 126 Vt. 511 (1967) ("A recitation of evidence in findings is not a finding of the facts")
Keegan v. Lemieux Sec. Servs., Inc., 177 Vt. 575 (2004) (denying negligence where essential element not proven)
Capital Candy Co. v. City of Montpelier, 127 Vt. 357 (1968) (affirming jury verdict against City for gravitating surface water onto plaintiff's land)
Alpine Haven Prop. Owners Ass'n v. Deptula, 175 Vt. 559 (2003) ((mem.))
Lenoci v. Leonard, 2011 VT 47 (2011) (clarifies elements of negligence)
Lunenberg Fire Dist. No. 2 v. Maciejko, 758 A.2d 811 (2000) ((mem.))