Donald Hillerby v. Town of Colchester
No. 96-243
Supreme Court of Vermont
November 26, 1997
[706 A.2d 446]
Present: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
Reversed and remanded for further proceedings consistent with this opinion.
Donald Hillerby v. Town of Colchester
[706 A.2d 446]
No. 96-243
Present: Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.
Opinion Filed November 26, 1997
Richard C. Whittlesey of Roesler, Whittlesey, Meekins & Amidon, Burlington, and Frederick S. Lane III, Of Counsel, Winooski, for Defendant-Appellant.
Plaintiff was riding his bicycle across a grassy аrea in the Town of Colchester when a manhole cover, over which he was crossing, collapsed. He sued the Town and others for injuries allegedly sustained during the occurrence. The Town filed a motion for summary judgment claiming sovereign immunity. In deciding the motion, the Chittenden Superior Court abandoned the established governmental/proprietary distinction in favor of the private-analog test, a test used to determine the liability of the State in tort actions. See
Municipal immunity is a common-law doctrine dating back in Vermont to the mid 1800s. See Baxter v. Winooski Turnpike Co., 22 Vt. 114, 123 (1849) (law does not provide remedy where individual sustains injury due to negligence of town). The immunity of a municipality, however, is not unlimited. 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. The rationale for this is that municipalities perform governmental responsibilities for the general public as instrumentalities of the state; they conduct proprietary activities only for the benefit of the municipality and its residents. See Marshall v. Town of Brattleboro, 121 Vt. 417, 422, 160 A.2d 762, 765 (1960). This Court has applied the governmental/proprietary distinction for decades. See, e.g., Roman Catholic Diocese of Vt., Inc. v. City of Winooski Hous. Auth., 137 Vt. 517, 520, 408 A.2d 649, 651 (1979) (municipal housing project is proprietary activity not entitled to immunity); Lemieux v. City of St. Albans, 112 Vt. 512, 516, 28 A.2d 373, 375 (1942) (construction of public playground is governmental function, thus precluding municipal liability). Yet it has also criticized the doctrine and acknowledged its abandon
In the present case, the Town argues that this Court should not abandon the governmental/proprietary distinction because the Legislature has explicitly and implicitly endorsed the doctrine. Plaintiff, however, urges this Court not to “shirk its duty and retreat into the safe haven of deference to the legislature.” (Quoting Hay v. Medical Ctr. Hosp. of Vt., 145 Vt. 533, 543-44, 496 A.2d 939, 945 (1985)). He clаims that the argument that “the issue is more appropriate for legislative resolution is wholly unpersuasive; such an argument ignores [this Court‘s] responsibility to face a difficult legal question and accept judicial responsibility for a needed change in the common law.” (Quoting id. at 543, 496 A.2d at 945.) Plaintiff points out that municipal immunity and the governmental/proprietary distinction are common-law doctrines that a variety of courts have abrogated without legislative action. Yet this Court‘s ability to act does not turn on whether the doctrines in question are judicially created, but on whether the Legislature has expressed approval of these doctrines since their formulation. Such approval precludes judicial action. See Town of Milton v. Brault, 132 Vt. 377, 380, 320 A.2d 630, 632 (1974) (refusing to abolish municipal immunity because of Legislature‘s endorsement; distinguishing abandonment of doctrine by other state courts following legislative silence).
The Legislature first recognized sovereign immunity in 1960 when it adopted
Under the common law, lawsuits against the state are barred unless the state consents tо be sued by waiving its sovereign immunity. Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 484-85, 622 A.2d 495, 497 (1993). In 1961, the Legislature enacted the Vermont Tort Claims Act (VTCA), waiving the state‘s immunity in specified tort actions. 1961, No. 265, §§ 1-5 (codified as amended at
In 1986, the Legislature again indicated approval of the distinction with its enactment of
The Town also argues that complicated public policy issues preclude the Court from abandoning the governmental/proprietary distinction and replacing it with the private-analog test. This Court
It is also important to note that the Legislature tailored the private-analog test with exceptions and limitations that this Court is in no position to define and compel in the area of municipal immunity. See Denicore v. City of Burlington, 116 Vt. 138, 144, 70 A.2d 582, 586 (1950) (“Where the legislature has declared no limitations the courts are without power to write them into the law. . . . The legislature alone can prescribe limitations.“) (quoting State ex rel. Saylor v. Walt, 278 N.W. 12, 15 (S.D. 1938)). Not only has the Legislature limited the amount of damages that an individual or group of plaintiffs may receive from the state, see
[I]t is desirable and in the public interest that any change in the doctrine of sovereign immunity should come from the legislative branch of the State Government rather than from the judicial branch inasmuch as there are fiscal considerations, administrative difficulties and other problems in balancing the rights of the State and its agencies with new possible rights of the individual citizens, which can far better be considered and resolved by the legislative branch than by the judiciary of the State.
Jekofsky v. State Roads Comm‘n, 287 A.2d 40, 42 (Md. 1972).
Our refusal to abolish the governmental/proprietary distinction should not be read as an endorsement of that distinction. We point out, as we did in Hudson, 161 Vt. at 177-78 n.3, 638 A.2d at 567 n.3, that many courts, legislatures, and commentators have strongly criticized this method of determining municipal liability. Yet we believe that our role in addressing this issue, at this time, is not to reform the rules of municipal immunity, but to give the Legislature the initial opportunity to fashion a more reasonable and workable doctrine. Its fact-finding and problem-solving process is better suited for the task in this area of the law.
The certified question is answered as follows: the abrogation and replacement of the governmental/proprietary distinction is a matter for the Legislature.
Dooley, J., dissenting. In two of three of its general themes, I concur in Justice Johnson‘s dissent. The governmental/proprietary distinction is neither appropriate nor workable and should be abandoned. This Court created the distinction and should now eliminate it, making it irrelevant to the negligence liability of a municipality whether a governmental or proprietary activity was involved. The Legislature has never endorsed this distinction, and we should not leave it to that body to eliminate it. We cannot, as the majority holds, refuse to endorse the distinction but leave it in place.
I do not concur, however, in the broader view that we should also eliminate general municipal immunity, leaving only the very limited protections proposed by Justice Johnson. Nor do I believe that our goal should be to expand municipal liability. Many of the reasons for municipal immunity have become archaic; many did not support the policy even when it was adopted. Our task should be to tailor our law on municipal immunity to the modern policy reasons for recognizing such immunity.
Throughout this century, government at all levels has taken on new responsibilities to protect the health and safety of its citizens. Through inspection and regulation, government seeks to prevent activities that would impair the public health or degrade the environment. Through its law enforcement and corrections personnel, it seeks to prevent crime and incapacitate violent lawbreakers. Through its fire-fighters, it seeks to prevent property damage and loss of life from fires. Through proper design, construction and operation, it makes modern transportation systems safe and efficient. If the promise of these governmental programs were fully realized, the vast majority of personal injuries would be prevented and there would be few adverse public health consequences from pollution and environmental degradation. Conversely, it is possible to assign some of the blame for almost any serious personal injury or environmentally caused sickness to the failure of а governmental actor to intervene effectively and in a timely fashion.
There are other reasons that government becomes a tort-litigation target. Many of the standards under which government employees act are, and must be, embodied in statutes and regulations that become duties, the breach of which gives rise to tort liability. Judgments against governmental units are usually collectible.
I do not believe that our tort-liability rules should provide that whenever the appropriate response of a government agent could have prevented a personal injury or adverse health consequence, the responsible governmental unit is liable along with any primary tortfeasor. Not only were the governmental programs not designed to assume a personal duty to every potential beneficiary, particularly in an era of scarce public resources where need and demand are inevitably greater than the capacity to meet them, but the liability consequences of such a policy would be massive, threatening the ability of government to respond at all to health and safety threats. It would be wiser to spend any additional resources on making prevention programs work better for the benefit of all citizens rather than responding to tort claims.
Even in Vermont where most municipalities are small and are governed by volunteers, municipalities have responsibility in essential
One possible response to the issues before us is to point out the difficulties and deficiencies in possible approaches and leave it to the Legislature to act. Both the majority decision and the dissent of Justice Johnson propose this response. The majority resolution is not likely to induce any response since the Legislature can continue with the status quo no matter how irrational the status quo may be. Cities and towns, supported by insurance carriers, are likely to respond to Justice Johnson‘s position by declaring a liability crisis, requiring immediate and emergency action by the Legislature to fix the problem. I do not think that we deal appropriately with a coequal branch of government by either action. I think our proper response is to create a new, workable municipal immunity rule. We can do so prospectively, as Justice Johnson suggests. If the Legislature is able to improve on any immunity rule we adopt, we should welcome its action.
The superior court proposed that we adopt, as an alternative to our current rule, the private-analog test, which is used to determine whether the state is immune from suit. See, e.g., Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 486, 622 A.2d 495, 498 (1993). In addition, there are two main alternatives in use by courts which have abolished blanket municipal immunity and rejected the governmental/proprietary-responsibility rule: (1) immunity covering breaches of public duties; and (2) immunity for discretionary acts. I would adopt both of these alternatives. The рublic-duty rule is similar in effect and purpose to the private-analog test; its adoption would make it unnecessary to consider the private-analog test.
Under the public-duty rule, tort liability does not attach where the duty owed by the municipality runs to the public in general, rather than to any particular member of the public, in the absence of a special relationship between the municipality and the tort plaintiff. We have an interesting recent history with this rule. In Hudson v. Town of East Montpelier, 161 Vt. 168, 176-77, 638 A.2d 561, 566-67 (1993), we refused to adopt the doctrine as a defense to negligence cases against individual municipal employees. In doing so, we were quite critical of the rule: “it is confusing and leads to inequitable, unpredictable, and irreconcilable results.” Id. at 176, 638 A.2d at 566.
Without referring specifically to the public-duty doctrine, we held that the town could not be liable for failure to enforce the fire code because the duty was owed to “the public as a whole.” Id. We cited to public-duty-rule cases from other jurisdictions and quoted extensively from one. We recognized the apparent inconsistency of the holding with Hudson and attempted to distinguish that case on the ground that Hudson dealt with official immunity while Corbin dealt with whether a duty of care existed.
Justice Johnson would treat Corbin as sui generis, standing simply for the proposition that “government entities are not liable for their failure to enforce regulations adopted to protect the public at large.” 167 Vt. at 291-92, 706 A.2d at 458. While this statement covers part of the public-duty rule, it ignores other factual situations where the rationale will apply. I do not believe we can, or should, limit the аpplication of the rationale.
I am reminded of the Massachusetts experience. In Dinsky v. Town of Framingham, 438 N.E.2d 51, 56 (Mass. 1982), the Massachusetts Supreme Judicial Court similarly held that a town was not liable for damages arising out of its failure to inspect pursuant to a building code because the building code created a duty only to the public at large. Over time, Dinsky was applied in other circumstances, and the court acknowledged in 1993 that it had adopted the “so-called public duty rule.” Jean W. v. Commonwealth, 610 N.E.2d 305, 308 (Mass. 1993). The court then reversed course, holding that the public-duty rule could not coexist with the comprehensive Massachusetts Tort Claims Act, which governed the liability of all units of government. See id. at 312. In response, the Legislature amended the Act to specify the liability outcome in all the common circumstances covered by the public-duty rule. See
Our Hudson decision criticized the public-duty rule for three reasons: (1) it resurrects governmental immunities; (2) “in recent years [it] has been rejected or abolished by most courts considering it“; and (3) “it is confusing and leads to inequitable, unpredictable, and irreconcilable results.” 161 Vt. at 176, 638 A.2d at 566. I agree generally with these criticisms if they are applied to the liability of individual government employees and we retain the governmental/proprietary distinction to determine municipal liability. I think they are overstated when applied to municipal liability and should not deter us from adopting the public-duty rule as an alternative to our current policy.
If our goal is to eliminate municipal immunity, the public-duty rule is inconsistent with that goal. See, e.g., Note, Massachusetts General Laws Chapter 258, § 10: Slouching Toward Sovereign Immunity, 29 New Eng. L. Rev. 1079, 1080 (1995). But, I believe that our goal is different: to define where governmental assistance, designed to protect the health and safety of citizens generally, should give rise to a duty to protect individual citizens such that negligent breach of the duty should give rise to tort liability. The public-duty rule addresses that goal directly. Thus, the fact that it resurrects governmental immunities is its strength, not its weakness:
If there has been any trend to reject or abolish the public-duty rule, it has been a “slight trend.” Comment, Connecticut Tort Reform Act and Municipalities’ and Building Officials’ Liability, 20 Conn. L. Rev. 203, 216 (1987); see generally Annotation, Modern Status of Rule Excusing Governmental Unit from Tort Liability on Theory that Only General, Not Particular, Duty Was Owed Under Circumstances, 38 A.L.R.4th 1194 (1985 & Supp. 1997) (indicating that only a handful of states have rejected public-duty rule). In New England, only New Hampshire has abolished the rule. See Doucette v. Town of Bristol, 635 A.2d 1387, 1390 (N.H. 1993). The Massachusetts court abolished the rule, but, as discussed above, the legislature effectively reinstated it.
I would also immunize a municipality from acts of employees that are discretionary, rather than ministerial. Justice Johnson‘s dissent states the rationale for this form of immunity. Although they differ on the scope of discretionary acts that are covered by immunity, all New England states extend municipal immunity to discretionary acts. See
The majority commits us to continue an artificial distinction that this Court created but cannot now endorse. I would understand our inaction if there were no alternatives that protect the legitimate interests of municipalities and yet provide relief for persons seriously injured by municipal negligence where tort liability is appropriate. We do a great injustice to this injured plaintiff, and others in similar situations, by not modernizing our law on municipal liability. I would let this action go to the jury, and dissent from the decision to terminate it prematurely.
It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.
Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897).
The judicially created doctrine perpetuated by today‘s decision denies plaintiff a legal remedy for his injuries solely because the manhole cover he ran over happens to service only the Town‘s street and not its sewer system. The majority feels compelled to reaffirm the doctrine, one universally condemned for its unjust results and long-ago discarded by the vast majority of jurisdictions, not because it makes any sense to do so, but rather because it is longstanding and the Legislature has not acted to abolish it.
Neither reason should constrain this Court from acting to abrogate its own laws that no longer have a place in a legal system grounded on modern principles of tort liability emphasizing risk sharing and collective security. This Court, not the Legislature, created general municipal immunity and its accompanying governmental/proprietary distinction, and thus this Court has not only the right but the duty to abolish these concededly unjust laws. No past enactment of the Legislature prevents us from doing so. Rather than explicitly or implicitly endorsing general municipal liability and the governmental/proprietary distinction, the Legislature has enacted statutes that, in most instances, merely sought to limit these judicially created doctrines.
I would abolish general municipal immunity along with the governmental/proprietary distinction, but continue to protect local government bodies from being sued for their legislative, judicial аnd high-level policy decisions, and for their failure to follow up on regulatory duties imposed to protect the general public. Apart from the instant case, I would implement these changes prospectively to give towns the time to adjust their insurance coverage and the Legislature an opportunity to address the issue of municipal immunity, in the event it elects to do so.
I.
Municipal immunity is a common-law doctrine associated with sovereign immunity but arising out of a 1788 English case, Russell v.
But because general municipal immunity is contrary to the basic legal concept that liability follows negligence and to the spirit of constitutional provisions entitling every person to a legal remedy for injuries suffered, the courts continually looked for ways to limit its reach. Owen v. City of Independence, 445 U.S. 622, 645-46 n.28 (1980). The principal limitation became the governmental/proprietary distinction. Under that doctrine, municipalities are liable for activities engaged in pursuant to their corporate or proprietary functions serving the needs of their inhabitants, but are immune from liability for activities engaged in pursuant to their governmental functions serving the demands of the state. 18 E. McQuillin, The Law of Municipal Corporations § 53.23, at 304-05 (3d ed. 1993). Although today it is easy to see why courts have been unable to draw such lines, this distinction may have made sense in a time when municipal corporations were seen as semi-private associations chartеred by the state to provide local inhabitants with services that no government had previously performed. Id. § 53.02.10, at 132.
The courts justified the distinction by arguing that local governments should not be liable for activities by which they derived no profit, that public funds should not be diverted to compensate victims for the torts of governmental employees, and that it was not reasonable to hold municipalities liable for torts committed in the
As a result of this criticism, most jurisdictions abrogated general municipal immunity between the late 1950s and the early 1980s, recognizing that the community at large rather than the individual should bear the risk of injury resulting from the negligent conduct of government employees. See, e.g., Parish v. Pitts, 429 S.W.2d 45, 49 (Ark. 1968) (considered conclusion of legal commentators is that burden resulting from governmental enterprises taken for benefit of community at large should be treated as administrative cost and spread among public receiving benefit of services); Brinkman v. City of Indianapolis, 231 N.E.2d 169, 172 (Ind. Ct. App. 1967) (citing trend toward spreading risk and requiring municipalities, like private corporations, to insure themselves); Williams v. City of Detroit, 111 N.W.2d 1, 23 (Mich. 1961) (abrogating municipal immunity based on law‘s “transition from individualism to collective security“); Restate
To a large extent, Vermont‘s history of municipal immunity and the governmental/proprietary distinction parallels the above history. Initially, municipal immunity seemed to have been presumed rather than declared in Vermont. In Baxter v. Winooski Turnpike Co., 22 Vt. 114, 123 (1849), this Court took it to be “well settled” that an individual could not maintain a tort action against a town unless a statute had conferred the right to maintain that particular action. In support of this common-law principle, the Court agreed with Russell “that it is better that an individual should sustain an injury, than that the public should suffer an inconvenience.” Id. at 123; see Welsh v. Village of Rutland, 56 Vt. 228, 234 (1883) (since Russell, settled common-law principle has been that individuals may not sustain actions against towns based on misconduct or nonfeasance of public officers).
Thirty-four years later, in Welsh, 56 Vt. at 234, this Court declared that the more “modern” ground supporting municipal immunity was “that these quasi corporations are mere instrumentalities for the administration of public government and the collection and disbursement of public moneys, raised by taxation for public usеs, and which cannot lawfully be applied to the liquidation of damages caused by wrongful acts of their officers.” Applying this rationale, the Court concluded that general municipal immunity should extend only “so far as the acts done are governmental and political in their character and solely for the public benefit and protection,” but not for acts done pursuant to “private franchise powers.” Id. at 234-35; see Winn v. Village of Rutland, 52 Vt. 481, 491-92 (1880) (municipalities are not liable for damages based on conduct arising from municipalities’
As in other jurisdictions, this Court early on encountered “considerable difficulty . . . in drawing the line which separates governmental activities from those of a corporate or proprietary nature.” Farmer v. Poultney School Dist., 113 Vt. 147, 150, 30 A.2d 89, 91 (1943). Not surprisingly, our attempts to apply this doctrine have been fraught with artificial distinctions and inconsistent and inequitable results. See Marshall v. Town of Brattleboro, 121 Vt. 417, 423, 160 A.2d 762, 766 (1960) (application of doctrine has produced anomalous results); Town of Stockbridge v. State Hwy. Bd., 125 Vt. 366, 369, 216 A.2d 44, 46 (1965) (governmental/proprietary distinction is “not clearly defined” because basis of distinction is difficult to state and thus no established rule exists for determination of what belongs to which class). For instance, as our law stands now, relief may be obtained from towns (1) when the plaintiff is injured because of ice caused by a leaking water main, but not because of ice caused by water escaping from a fire hydrant during a routine thawing operation conducted by town firefighters, see Marshall, 121 Vt. at 423, 160 A.2d at 766; (2) when the plaintiff is injured during the construction of a public playground, but not during the operation of a mechanical rope ski tow in a municipal park, compare Lemieux v. City of St. Albans, 112 Vt. 512, 516, 28 A.2d 373, 375 (1942), with Marshall, 121 Vt. at 425, 160 A.2d at 767-68; and (3) when the plaintiff is injured while driving over a hole caused by the town‘s repair of a sewer or water line, but not while driving over a hole caused by the town‘s repair of a street, see Hudson v. Town of East Montpelier, 161 Vt. 168, 178 n.3, 638 A.2d 561, 567 n.3 (1993).
Indeed, the latter anomaly is present in the instant case. The parties debated before the superior court whether the manhole cover that plaintiff ran over was indirectly connected to the sewer system via a storm drain system, in which case plaintiff could seek relief from the Town, or whether the manhole was solely associated with maintenance of the street system, in which case the governmental/proprietary distinction would bar plaintiff from seeking relief from the Town for his injuries. Because the superior court determined that
In the majority‘s view, we must turn a blind eye toward these inequities because our doctrine creating them has been around a long time and has been accepted by the Legislature. The majority adopts the Town‘s position that the Legislature has explicitly and implicitly endorsed general municipal immunity and the governmental/proprietary distinction by (1) enacting various statutes since at least 1797 that make towns liable for only certain types of tortious acts, e.g.,
Notwithstanding our past disinclination to address the significant inequities caused by general municipal immunity and the governmental/proprietary distinction, we should do so now. See Molitor, 163 N.E.2d at 96 (upon determining that judicially created doctrine is unsound and unjust, court has duty to respond; courtroom doors were closed, and likewise may be opened, without legislative help);
The Legislature has never explicitly or implicitly endorsed general municipal immunity or the governmental/proprietary distinction. At best from the Town‘s perspective, the Legislature has merely recognized the existence of the court-originated doctrine of municipal immunity and enacted statutes that, for the most part, limit its reach. See Molitor, 163 N.E.2d at 92 (statutes limiting reach of municipal liability do not demonstrate legislative adoption of general municipal immunity); Davies v. City of Bath, 364 A.2d 1269, 1271 (Me. 1976) (statutes intended to curtail harsh effects of municipal immunity did not transform doctrine from court-made rule to legislative policy); Kitto v. Minot Park District, 224 N.W.2d 795, 802 (N.D. 1974) (statutes restricting judicially created municipal immunity do not demonstrate legislative approval of doctrine). In contrast to its comprehensive treatment of state sovereign immunity in the Tort Claims Act,
In addition to its belief that the Legislature has endorsed general municipal immunity and the governmental/proprietary distinction, the majority states that the Legislature is better suited to consider the complex public policy issues surrounding municipal immunity. This may be true, but it should not preclude this Court frоm abolishing its own universally condemned doctrine while affording the Legislature time to step in and address the subject, if it so chooses. See Long, 214 S.E.2d at 859 (although it would be preferable for legislature to speak comprehensively on subject, court should not perpetuate bad law of judicial origin pending fortuity of legislative action). The case law demonstrates that for whatever reasons — perhaps the lack of a powerful or unified voice from persons who have been injured through the negligence of government employees — legislatures in most jurisdictions have not comprehensively addressed issues surrounding municipal immunity until the courts acted first. See E. McQuillin, supra, § 53.02.10, at 133; W. Keeton, supra, § 131 n.40, at 1055 (judicial decisions initiated shifts from governmental immunity). I suspect that in Vermont, as elsewhere, the Legislature will not act until this Court acts.
II.
While it is clear that general municipal immunity under the governmental/proprietary dichotomy is bad law that should be abolished, the more difficult question is what, if anything, should remain of municipal immunity? Even those courts declaring that they were abrogating municipal immunity stated that municipalities would continue to be immune for their acts or omissions connected with legislative, judicial, and high-level executive policy decisions. W. Keeton, supra, § 131, at 1052; e.g., Nieting v. Blondell, 235 N.W.2d 597, 603 (Minn. 1975); Merrill, 332 A.2d at 383; Enghauser, 451 N.E.2d at 232; McCall v. Batson, 329 S.E.2d 741, 742 (S.C. 1985). Eventually, in some jurisdictions immunity became dependent on whether the government‘s acts or omissions were deemed discretionary rather than ministerial, or planning rather than operational, or
Rather than focus on formalistic labels that merely serve as conclusions reached after consideration of the relevant factors, see Hudson, 161 Vt. at 171, 638 A.2d at 563, we should examine the policy considerations surrounding the issue of governmental immunity. Each of the immunity tests, whether the emphasis is on the discretion of the actor, the level of the decision, or the nature of the conduct, is related to the others and revolves around the same public policy considerations, which in turn, stem primarily from separation-of-powers concerns. To preserve separate and coequal branches of government that best serve the public‘s interests, government officials must feel that they can use free and independent judgment, without the threat of liability hanging over them, regarding decisions involving the balancing of priorities or the allocation of resources. See id. at 173-74, 638 A.2d at 564; Peavler v. Monroe County Bd. of Comm‘rs, 528 N.E.2d 40, 44-45 (Ind. 1988) (separation-of-powers doctrine forecloses courts from reviewing political, social and economic actions within province of coordinate branches of government; courts are ill-equipped to review, in context of tort law, government‘s policy decisions involving assessment of competing priorities and weighing of budgetаry considerations or allocation of scarce resources); E. McQuillin, supra, §§ 53.04.10 and 53.04.20, at 156-57 and 162 (tort law does not provide adequate framework to analyze governmental actions where real questions are not negligence, due care, or reasonableness, but rather social wisdom, political practicability, and economic expediency; decisions requiring balancing of priorities and weighing of budgetary considerations are kinds of political acts that courts ought not to second-guess and that are not readily judged by traditional tort standards).
The goal should be to place municipalities on an equal footing with private corporate entities with respect to responsibility for injuries caused by the common torts of their employees, but to shield them
The Restatement also recognizes that some courts have considered quasi-judicial or quasi-legislative regulatory and enforcement activities to fall within § 895C. Restatement, supra, § 895C cmt. g; see, e.g., Bolden v. City of Covington, 803 S.W.2d 577, 581 (Ky. 1991) (municipality not liable for failure to enforce fire code safety violation, which is quasi-judicial regulatory enforcement activity); DeBry v. Noble, 889 P.2d 428, 441 (Utah 1995) (municipality not liable for injuries allegedly caused by licensing or inspection decisions). These courts seek to protect municipalities that have taken on a substantial number of regulatory duties for the protection of the general public from being sued for failing (by not exercising those self-imposed or state-imposed duties) to prevent persons from injuring themselves or being injured by others. See Gas Service, 687 S.W.2d at 149. Our case law in analogous contexts supports this position. See Andrew v. State, 165 Vt. 252, 258-60, 682 A.2d 1387, 1391-92 (1996) (state not liable under tort claims act‘s private analog test for its alleged negligent inspection of private workplace); Johnson v. State, 165 Vt. 588, 589, 682 A.2d 961, 963 (1996) (state agency not liable to purchasers of motel based on complaint alleging negligent issuance of lodging license to prior owners); Corbin v. Buchanan, 163 Vt. 141, 144, 657 A.2d 170, 172 (1994) (no private cause of action exists against municipality for failing to enforce fire code regulation aimed at protection of general public); Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 489, 622 A.2d 495, 499-500 (1993) (state regulatory agency not liable under tort claims act‘s private analog test for allegedly failing to warn plaintiff of complaints filed with agency regarding plaintiff‘s agent).
In light of the prior discussion, I would abrogate general municipal immunity and the governmental/proprietary distinction, and adopt Restatement § 895C in its place. In doing so, I would acknowledge our continued support for the position stated in Corbin (and analogous case law construing the private analog test) that government
Without question, the Restatement approach would not provide the Town with immunity in the present case, which concerns a common tort scenario that implicates neither legislative or judicial functions, nor high-level policy decisions or regulatory activities. Of course, § 895C‘s general principles would have to be refined in future cases by examining and considering various fact patterns while keeping in mind the underlying principles that support limited exceptions to general municipal liability. Although it will not be easy to set forth on a case-by-case basis a principled and cohesive doctrine that is both fаir and consistent, it will be far better than allowing to stand a doctrine acknowledged to be inequitable and inconsistent. Because of
We could defer to the Legislature‘s ultimate authority in this area by abrogating general municipal immunity and abolishing the governmental/proprietary distinction prospectively, as many other courts have done, to allow municipalities time to adjust their insurance coverage and to allow the Legislature an opportunity either to enact comprehensive legislation on municipal immunity, to include municipalities within the Tort Claims Act, or to impose other legislative limitations on municipal liability, if it so chooses. See Becker v. Beaudoin, 261 A.2d 896, 901 (R.I. 1970) (while courts need not wait on legislature to repudiate unsound judicial doctrine, they should provide legislature opportunity to weigh in on issue more suited to its control); Restatement, supra, § 895B cmt. f (stating types of legislatively imposed limitations on governmental liability, including damage limits and notice restrictions).
The courts that have abrogated general municipal immunity have differed on whether to apply their holding prospectively or retrospectively. Some courts have followed the general rule of retrospective application, e.g., Stone, 381 P.2d at 112; others have taken a “quasi-retroactive” approach that applies their holding only in pending cases in which the municipality is insured for damages stemming from the alleged tort, e.g., McCall, 329 S.E.2d at 742-43; perhaps the majority of jurisdictions have applied their holding “quasi-prospectively” — after a future date except for the case at hand, e.g., Evans v. Board of County Comm‘rs, 482 P.2d 968, 972 (Colo. 1971); and, finally, other courts have taken a strict prospective approach, not even affording relief to the plaintiffs that brought the case, e.g., Becker, 261 A.2d at 902-03. I would favor a quasi-prospective approаch that would afford relief to the instant plaintiff, but otherwise apply our holding from some future date, say July 1, 1998, after next year‘s legislative session. This would allow the towns and the Legislature to react to the change in law, but would afford relief to the party challenging the current law.
III.
There can be no doubt that the effect of governmental immunity is “to sacrifice the injured citizen to the benefit of the public treasury.”