Bernasconi v. City of Barre: Hope Cemetary

Bernasconi v. City of Barre: Hope Cemetary, 663-10-15 Wncv (Teachout, J., Nov. 22, 2017)

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STATE OF VERMONT

SUPERIOR COURT CIVIL DIVISION

Washington Unit Docket No. 663-10-15 Wncv

JAY BERNASCONI

Plaintiff

v.

CITY OF BARRE: HOPE CEMETERY

Defendant

DECISION

The City’s Motion for Summary Judgment

Plaintiff Jay Bernasconi claims that while visiting the Hope Cemetery in Barre, which is

owned and operated by the City of Barre, he stepped into a hole obscured by grass, fell, and

injured his knee. Defendant City of Barre seeks summary judgment claiming that it has

municipal sovereign immunity to such a claim and that the record is insufficient to permit any

inference of negligence. Mr. Bernasconi argues that there is no immunity and the facts regarding

negligence should be resolved by a jury.

For summary judgment purposes, there is no dispute that Mr. Bernasconi, while visiting

the cemetery, stepped into a deep hole that was obscured by grass and fell.

Municipal sovereign immunity and 24 V.S.A. § 901a

The City argues that it has municipal sovereign immunity to Mr. Bernasconi’s claim

because the Cemetery is akin to a park and municipal parks are governmental, rather than

proprietary, undertakings of Vermont municipalities. Mr. Bernasconi responds that his claim is a

tort claim against a municipal employee, brought against the City pursuant to 24 V.S.A. § 901a,

and sovereign immunity is statutorily waived. He also argues that, in any event, cemeteries are

proprietary undertakings to which common law municipal sovereign immunity does not apply.

Subject to some limitations not relevant here, 24 V.S.A. § 901a(b) precludes direct

actions against municipal employees acting within the scope of their authority for, among other

things, personal injuries. It requires that such claims be brought against the municipality, which

may raise any defense that would have been available to the employee, including individual

immunity defenses such as qualified immunity, but which may not raise any defense that would

not have been available to the employee, including “municipal sovereign immunity.” Id. §

901a(c).

Section 901a does not apply to this case. Before § 901a was enacted in 2003, municipal

employees, unlike State employees, generally had personal liability for their torts without any

statutory protection provided by their employing municipality. See, e.g., Hudson v. Town of E.

Montpelier, 161 Vt. 168, 178–79 (1993) (“In the absence of the public duty doctrine or a statute

specifically limiting liability, a municipal employee who commits a tortious act is personally

liable to the injured person, even though the employee is engaged in a governmental function and

the municipality is exempt under the doctrine of sovereign immunity.”). As the Hudson Court

explained:

If the Legislature determines that no municipal employees required to engage in

work-related activities affecting the safety of many people should be held

personally liable for their negligence in undertaking ministerial tasks within the

scope of their employment, it may require all municipalities to indemnify all of

their employees or to purchase insurance in order to protect their employees from

tort judgments, or it may declare suits against municipalities the exclusive remedy

for those injured by municipal employees acting within the scope of their

employment.

Id. at 179. The legislature responded 10 years later by adopting § 901a, a scheme requiring suits

against municipalities, not municipal employees, as exclusive remedies.

In such a case, the municipality may not assert municipal sovereign immunity in defense

of the claim against the employee, but neither does it lose its sovereign immunity in relation to

any claim brought directly against it. In other words, § 901a does not do away with municipal

sovereign immunity altogether. It merely preserves liability in favor of a tort claimant in relation

to a claim that otherwise could have been properly brought against the municipal employee

directly.

Mr. Bernasconi has not identified any such claim in this case. While his complaint

superficially includes two claims, negligence and premises liability, they describe the same tort.

Mr. Bernasconi’s claim is that the grounds of the Cemetery included a concealed, dangerous

condition—a hole in the ground—that injured him. This is a basic premises liability claim.

The City argues that a premises liability claim may be asserted against the owner of the

property only. That is not so, at least as a general matter. Generally, a premises liability claim

may be brought against the owner or possessor of the land, and liability may extend beyond that.

See, e.g., Restatement (Second) of Torts § 383 (“One who does an act or carries on an activity

upon land on behalf of the possessor is subject to the same liability, and enjoys the same freedom

from liability, for physical harm caused thereby to others upon and outside of the land as though

he were the possessor of the land.”); see also Garafano v. Neshobe Beach Club, Inc., 126 Vt.

566, 575 (1967) (“liability depends upon control, rather than ownership, of the premises”).

However, the City is correct that Mr. Bernasconi has not alleged any negligence by any

particular employee. No specific employee is alleged to have been negligent. He focuses

instead on the fact that, collectively, no one did anything to mark or fix the hole before he fell in

it. That is a claim asserted against the City directly as owner and controller of the property. It is

not a negligence claim brought against an individual employee. Thus, § 901a is not relevant and

there is no need to consider the City’s defense of municipal sovereign immunity with respect to a

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claim based on employee negligence.

The City’s immunity argument fails, however, for a different reason. The existence of

municipal sovereign immunity depends on the governmental–proprietary dichotomy that, in

Vermont, still is used to determine the breadth of a municipality’s sovereign immunity. See

Hillerby v. Town of Colchester, 167 Vt. 270, 272 (1997) (“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.”).

Although there appear to be no published decisions on this issue in Vermont, as

numerous out of state cases have held, a municipality owns and operates a cemetery in its

proprietary, not governmental, capacity. The leading municipal law treatise summarizes this

noncontroversial principle as follows: “A city operating a cemetery functions in its proprietary

capacity.” 18A McQuillin Mun. Corp. § 53:144 (3d ed.). It thus retains no municipal sovereign

immunity to claims arising out of the operation of a cemetery. The City appears to accept this.

It does not argue that cemeteries fall within the municipality’s governmental capacity.

It argues instead that Hope Cemetery is no ordinary cemetery. Really, it argues, Hope

Cemetery is a “sculpture garden” or park and it should be so treated for sovereign immunity

purposes. Contrast Lemieux v. City of St. Albans, 112 Vt. 512, 514–15 (1942) (construction of a

public playground is a governmental function) with Marshall v. Town of Brattleboro, 121 Vt.

417, 425 (1960) (operation of a ski tow rope in a public park is not).

The court need not sort out the legal status of “parks” vis-à-vis Vermont law on

municipal sovereign immunity in this case. There is no question that Hope Cemetery is a

cemetery. The City argues that because it attracts tourists it is unique and should be treated like a

park. The City offers no authority for this argument and has not established in any meaningful

way that a trier of fact could reasonably find that Hope Cemetery somehow has lost its principal

identity as a cemetery and now is a “park” instead.

The operation of a cemetery falls within the City’s proprietary capacity. The City

therefore has no municipal sovereign immunity to Mr. Bernasconi’s claim.

Negligence/ Premises Liability

The issue thus turns to negligence. The City argues that Mr. Bernasconi has come

forward with no meaningful evidence of negligence. Mr. Bernasconi argues that the facts are

disputed and should be presented to the jury.

Generally speaking, landowners are not strictly liable to lawful entrants on their property.

Rather, they are charged with the duty to act with “reasonable care in all the circumstances.”

Demag v. Better Power Equipment, Inc., 2014 VT 78, ¶ 26, 197 Vt. 176. The Demag Court

elaborated:

“Whether a defendant is negligent depends on whether his or her action was

objectively reasonable under the circumstances; that is, the question is whether

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the actor either does foresee an unreasonable risk of injury, or could have foreseen

it if he conducted himself as a reasonably prudent person.” Under our common

law, “the degree of care that a reasonably prudent person would exercise, and thus

the scope of the legal duty of ordinary care, is determined by the foreseeability of

the consequences of an individual’s acts or omissions.

Id. at ¶ 27 (citations omitted). Plaintiff does not allege that the City’s agents created the hole into

which he fell. He asserts that it was a deep hole, that the City’s agents should have been aware

of it, and that they nevertheless did not mark it or cover it to make it safe.

The question is whether Plaintiff has presented sufficient evidence to go to the jury on the

issue of whether the City’s agents should have been aware of the hole. Plaintiff’s evidence is

that the surface area of the hole was approximately the size of Mr. Bernasconi’s foot. It was

deep, but it was obscured by grass and not obvious to an ordinary passerby, as Mr. Bernasconi

readily testified. There is no evidence that Hope Cemetery’s groundskeepers were actually

aware of the hole before Mr. Bernasconi fell in it.

It is incumbent on a plaintiff to develop and marshal evidence to the effect that under

these circumstances the groundskeepers should have been aware of it. The jury’s ability to

reasonably draw that inference from admissible evidence is necessary to the claim that failing to

make the hole safe was negligent. As one treatise explains:

The fact that an entrant on property falls and is injured is not itself evidence of

negligence and does not give rise to an inference of negligence. . . . Negligence

consists in the doing of something a reasonable person would not do under the

same or similar circumstances or the failure to do something a reasonable person

would do under like circumstances.

2 Louis A. Lehr, Jr., Premises Liability 3d § 36:1 (2017 ed.).

There is no evidence that the hole was in existence for such a long time prior to the fall

that the groundskeepers reasonably should have been aware of it. In opposition to summary

judgment, Mr. Bernasconi alleges in an affidavit that the hole was deep, and a hole so deep

would have taken a long time to develop. This is speculation of a layperson, however, and

would be insufficient to support a finding of fact to that effect by the jury. There is no

meaningful evidence in the record on how long the hole may have existed before Mr. Bernasconi

fell in it.

Mr. Bernasconi also argues that the groundskeepers should have been aware of the hole

because they knew that holes sometimes appeared on the cemetery’s grounds and should have

been seeking them out more diligently. There is some evidence in the record that holes

sometimes would develop on the Cemetery grounds and, when discovered, the groundskeepers

would act to mark them, cover them up, or otherwise make them safe. There was no evidence,

however, that could support a finding by the jury that dangerous holes developed so frequently

that the groundskeepers should have had some more diligent protocol in place to find them.

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Counsel for Mr. Bernasconi offered at oral argument that there also was evidence that

holes sometimes developed after heavy rainstorms. He suggested that evidence of a relevant

rainstorm may be presented to the jury at trial but conceded that no evidence of any such

rainstorm currently exists. This was argument and not admissible evidence and it is an

insufficient basis upon which to oppose summary judgment. “The nonmovant is not entitled to a

trial on the basis of a hope that he can produce some evidence at that time.” 10A Wright &

Miller, et al., Federal Practice & Procedure: Civil 4th § 2727.2. Evidence relied upon for

summary judgment purposes must be in the record.

As far as the record goes, there is no evidentiary basis for a finding on how long the hole existed,

whether the groundskeepers should have known about it, and thus whether the failure to make it

safe presents any triable issue of negligence.

Without evidence of reasonable notice of the unsafe condition that affected Mr.

Bernasconi, or any other evidence that the groundskeepers should have done something that they

did not do, there is no triable issue of negligence on the part of the City. To rule otherwise on

this record would be to impose strict liability on the City, whereas as a matter of law, premises

liability is based on ordinary negligence principles.

ORDER

For the foregoing reasons, the City’s motion for summary judgment is granted.

Dated at Montpelier, Vermont this 21st day of November 2017.

_____________________________

Mary Miles Teachout

Superior Judge

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