The opinion
>eRIOR COURT
VI SUPERIOR COUR
7 yaerenons TOM UY
STATE OF VERMONT
SUPERIOR COURT ho CIVIL DIVISION
Washington Unit 79 #628 P 223° Docket No. 236-4-18 Wncv
MADALEINE OLSEN
Plaintiff
Vv.
TOWN OF BARRE
Defendant
DECISION
The Town of Barre’s Motion for Summary Judgment
This is a personal injury action arising out of an automobile collision between Plaintiff
Madaleine Olsen and a Town of Barre Police Officer, Jacob Frey, in the course of his official
duties. Ms. Olsen alleges that Mr. Prey was operating his police vehicle in a negligent or -
reckless manner and that negligence or recklessness cailsed the collision, ! Ms. Olsen claims that
the Town is liable for Mr. Frey’s wrongful operation and is separately liable for “negligent
training,” referring to some unexplained negligence in the manner by which it allegedly trained
Mr, Frey to drive. The Town counterclaimed against Ms, Olsen, asserting that her negligence .
caused the collision.?
The Town has filed a summary judgment motion arguing that qualified official immunity
protects it from liability for the claim against Mr. Frey, and that it has municipal sovereign
immunity to Ms. Olsen’s negligent training claim. It also argues generally that Ms. Olsen will be
unable to come forward with any evidence of injuries.
There is no dispute that on the day of the collision, Mr. Frey was on official police
business, responding to an emergency call. As his cruiser turned a corner in snowy and icy
conditions, he lost control and slid into Ms. Olsen’s vehicle, which was approaching from the
opposite direction. Ms. Olsen had not pulled to the right and stopped. See 23 V.S.A. § 1050(a)
(“Upon the approach of a law enforcement vehicle which is sounding a siren or displaying a blue
or blue and white signal lamp, . . . all other vehicles shall pull to the right of the lane of traffic
and come to a complete stop, until the law enforcement or emergency vehicle has passed.”),
‘In earlier proceedings, the court dismissed Mr. Frey in his personal capacity as a defendant in this case pursuant to
24 V.S.A. § 901a(b). Under that statute, the claim against Mr. Frey must be brought against the Town. The court
also dismissed nominal defendant “Town of Barre Police Department” as simply another way of describing the
Town itself, which was separately named as a defendant.
? The Town discusses Ms. Olsen’s alleged negligence in the briefing but it is not seeking summary judgment on its
claim against her. Therefore, the court declines to analyze the Town’s counterclaim at this time.
Qualified official immunity
The Town argues that, regardless whether Mr. Frey may have operated his cruiser
negligently, his conduct is protected by qualified official immunity. Qualified official immunity
generally protect lower level governmental employees “from tort liability only where they are:
*1) acting during the course of their employment and acting, or reasonably believe they are
acting, within the scope of their authority; 2) acting in good faith; and 3) performing
discretionary, as opposed to ministerial acts.’” Libercent v. Aldrich, 149 Vt. 76, 31 (1987)
(citation omitted). The court declines to address the Town’s qualified official immunity
argument at this time.
The Vermont Supreme Court appears to have clearly ruled that police officers responding
to emergency calls are, by statute, not entitled to qualified immunity, and are potentially liable
for recklessness, though not negligence. See generally Rochon v, State, 2004 VT.77, 177 Vt. 144
(discussing Morais and 23 V.S.A. § 1015); Morais v. Yee, 162 Vt. 366 (1994). Neither party in
arguing for or against qualified immunity in this case addressed the significanice of § 1015 as
interpreted in Rochon and Morais. The coutt invites further briefing before a ruling on the issues
of qualified immunity or recklessness,
Municipal sovereign immunity
Ms, Olsen alleges in the complaint that the Town is liable for “negligent training,”
referring to some training of Mr. Frey in how to operate a motor vehicle. There are no
allegations in the complaint or elsewhere in the record explaining what the negligent act of
training may have been or how it could have contributed to the collision.?. The Town, however,
does not seek summary judgment due to a lack of evidence, Rather, it argues that it retains
sovereign immunity to this claim because the operation of a police force is a “governmental
function” protected by municipal sovereign immunity, |
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 o pposed to governmental”),
“Police work falls within the category of governmental functions. A municipality
provides police services as part of the state’s governmental responsibility toward the general
public, Therefore, ‘municipalities are immune from state law claims arising from injuries caused
by the operation of their police departments.’” Livingston v. The Town of Hartford, No. 482-9-
06 Wrev, 2008 WL 8747703 (V1. Super. Ct. Feb. 28, 2008), quoting Decker v. Fish, 126
F.Supp.2d 342, 346 (D. Vt. 2000); see also 18 McQuillin Mun. Corp. § 53:77.12 (3d ed.) (“For
those jurisdictions subscribing to the dichotomy between governmental and proprietary functions
3 The lack of any such aliegations implies that the Town’s liability for negligent training may spring automatically
from the alleged wrongful operation. That, however, would amount in effect to a claim of strict liability against the
Town. The Town does not have strict liability for “negligent training” due to any wrongful operation by Mr. Frey.
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it is firmly established that the operation of a police department is a governmental function, and
that acts or omissions ordinarily do not give rise to liability on the part of the municipality.”).*
The Town’s operation of a police force is uniquely governmental and entitles it to .
sovereign immunity in relation to negligence claims predicated on that operation. The Town is
entitled to summary judgment on Ms. Olsen’s negligent training claim.
Whether Ms. Olsen suffered injuries
The Town argues that somehow Ms. Olsen will be unable to prove any injuries from the
collision. The Town’s argument is based on its view of her general conduct and how that may
relate to the reality or gravity of any personal injuries she may have suffered. These-are matters
for the finder of fact to determine. The record does not lack any evidence of injury to Ms. Olsen,
and it is undisputed that the collision occurred and seriously damaged the vehicles involved.
ORDER
For the foregoing reasons, the Town’s motion for summary judgment is granted in part
and denied in part.
The court reserves judgment on the Town’s qualified immunity argument and requests
further briefing from both parties within 30 days, with any responses due 15 days thereafter,
Dated at Montpelier, Vermont this 28th day of August 2019.
VV, WM, eachest
Mary Miles Teachout
Superior Judge
* Ms, Olsen’s opposition to the Town’s sovereign immunity argument is unclear. In it she appears to continue
addressing qualified official immunity and does not squarely address sovereign immunity at all, Ms, Olsen’s
negligent training claim is a direct claim against the Town, although no negligent act has been identified in the
record. The Town has defended by raising the bar of its sovereign immunity. Whether qualified official immunity
protects against direct liability for Mr. Frey’s allegedly wrongful operation is a Separate matter.
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