Blair v. Frank Whitcomb Construction Corp., No. 498-01 CnC (Norton, J., July 26, 2005)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the
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STATE OF VERMONT
Chittenden County, ss.:



HOPE BLAIR, Individually and as Administratrix
of the Estate of Brian K. Blair, and NIKI BLAIR, In her
capacity as guardian of Bryana Blair

v.

FRANK W. WHITCOMB CONSTRUCTION
CORPORATION and STATE OF VERMONT



                                            ENTRY
        This case concerns a traffic accident in which the passenger, Brian K. Blair, was
killed. The plaintiffs have filed survival, wrongful death, and loss of consortium claims
against the State of Vermont and Frank W. Whitcomb Construction Corporation, which
was undergoing road work under contract with the State where the accident took place. In
a previous entry, this court denied the State’s summary judgment motion, holding that the
State was not protected by sovereign immunity. The State has filed a motion for
reconsideration or, in the alternative, for permission to appeal pursuant to V.R.A.P. 5 and
5.1.
        The State raises no new legal or factual arguments that require modification of the
court’s entry. The State’s primary argument boils down to the claim that the court should
credit the State’s witnesses who allege that the regulatory standard in question—Standard
E-108—confers discretion upon highway engineers such that the acts or omissions of the
State employee in this case fell with the discretionary function exception to the Vermont
Tort Claims Act, 12 V.S.A. § 5601(e)(1). Standard E-108 evinces no such discretionary
language, but the State claims that its witness testimony “proves” it is discretionary.
       The court begs to differ. Proof of discretionary standards would be language
written in the standard to the effect of: “This standard is discretionary.” See, e.g., Estate
of Gage v. State, 2005 VT 78, ¶ 9 (holding State guidelines discretionary where
guidelines provided “suggested criteria” for State engineers); Searles v. Agency of
Transp., 171 Vt. 562, 564 (2000) (mem.) (holding that statement concerning “engineering
judgment” rendered manual discretionary). The State, along with the engineers and
regulators who drafted Standard E-108, was capable of adding such language within
Standard E-108. It did not. Saying something is discretionary does not make it so.
        The State also argues that the Manual on Uniform Traffic Control Devices
(MUTCD) confers discretion with respect to the State employee’s acts or omissions. As
the court noted in its entry, the standards appended to the contract for the construction
work in this case provided that “[a]ll traffic control devices shall conform to the contract
requirements and the MUTCD.” The conjunctive “and” means that this phrase must be
read as follows: (1) traffic control devices shall conform to the contract requirements
(e.g., Standard E-108) and (2) traffic control devices shall conform to the MUTCD. Even
if the MUTCD confers discretion, Standard E-108 does not. Thus, the MUTCD’s
discretionary language has no bearing on the court’s decision.
        The State also takes issue with the court’s application of the presumption under
United States v. Gaubert, 499 U.S. 315 (1991), arguing that the court inappropriately
laden the State with the burden of proof to show that the discretion was “‘grounded in
social, economic, and political policy.’” Berkovitz v. United States, 486 U.S. 531, 537
(1988) (quoting United States v. Varig Airlines, 467 U.S. 797, 814 (1984)). Under
Gaubert:
              When established governmental policy, as expressed or
              implied by statute, regulation, or agency guidelines, allows a
              Government agent to exercise discretion, it must be presumed
              that the agent's acts are grounded in policy when exercising
              that discretion. For a complaint to survive a motion to
              dismiss, it must allege facts which would support a finding
              that the challenged actions are not the kind of conduct that
               can be said to be grounded in the policy of the regulatory
               regime.
499 U.S. at 324–25; see also Searles v. Agency of Transp., 171 Vt. 562, 563–64 (2000)
(adopting Gaubert analysis).
        As the Gaubert Court held, the presumption that a government agent’s actions are
grounded in policy applies only where “governmental policy, as expressed or implied by
statute, regulation, or agency guidelines, allows a Government agent to exercise
discretion.” Standard E-108 does not confer discretion. The only possible discretion
would come from unwritten procedures and practices expressed by the State’s witnesses.
Such discretion does not give rise to a presumption that those same witnesses’ actions are
grounded in State policy. Hence, the State properly retained the burden to show that the
alleged discretion of its employees in this case was grounded in policy. As the State
failed to meet its burden, the court denied its summary judgment motion.
        The court’s decision is also not affected by the Vermont Supreme Court’s most
recent pronouncement regarding the discretionary function exception. In Gage, the Court
held that the placement of guardrails is discretionary because “the State’s policy vested
extensive discretion in its highway officials” with regard to guardrails where the hazard
lies outside of thirty feet from the edge of the driving lane. 2005 VT 78, ¶¶ 6–7. The
Court also held that the guardrail “determination involved precisely the kind of policy
judgments—the weighing of risks, financial costs, and environmental and aesthetic
impacts—that the discretionary-function exception was designed to protect.” Id., ¶ 7.
        Here, even were the court to credit the State’s evidence of discretion, the State
failed to demonstrate that the use of channelization devices involved weighing of risks,
financial costs, and environmental and aesthetic impacts. Although the State submitted
evidence that channelizing devices may render a roadway too narrow, those were not the
circumstances at the construction site in this case.1 The State also would not bear


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                    The resident engineer at the construction site, William Flanders, testified that
       channelization devices might have narrowed the roadway. Standard E-108 accounts for the
  shoulder width in determining whether to use channelization devices. The width at the scene of
the accident—3.8 feet—was such that channelization devices would have been appropriate under
   Standard E-108. A simple statement that the devices may have narrowed the roadway does not
     support a holding that Flanders had to forgo channelization devices in favor of public safety.

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significantly greater costs, given that the construction firm would ultimately be
responsible under the contract for providing traffic devices. Finally, in a temporary
construction site, the State is obviously not concerned with the environmental and
aesthetic impact of orange cones, rubber barrels, or blinking lights. In short, the State has
failed to provide any broader policy justification weighing against the use of
channelization devices where there is a 4–6 inch drop-off at the edge of a road under
construction and a 3.8 foot shoulder on which to place the channelization devices.
        The plaintiff in Gage also provided a State standard to demonstrate that State
agents lacked discretion to leave out a guardrail at the location of the accident. The
standard, however, emphasized that its provisions were “suggested criteria,” not
mandates. Gage, 2005 VT 78, ¶ 9. Therefore, the standard differed from Standard E-108
in this case.
        Finally, the State argues that the court erred in its interpretation of 12 V.S.A. §
5601(e)(8), which provides an exception to the State’s waiver of sovereign immunity for
“[a]ny claim arising from the selection of or purposeful deviation from a particular set of
standards for the planning and design of highways.” As the Vermont Supreme Court has
held, in interpreting a statute, “[t]he Legislature is presumed to have intended the plain,
ordinary meaning of the adopted statutory language. If the statute is unambiguous and the
words have plain meaning, we accept that plain meaning as the intent of the Legislature
and our inquiry proceeds no further.” Springfield Terminal Ry. Co. v. Agency of Transp.,
174 Vt. 341, 346 (2002) (citation omitted). Under its plain meaning, “planning and
design of highways” refers to highways on which one would drive on a day-to-day basis,
not those on which one would negotiate construction sites. The State would have the
court read this phrase to mean “planning and design of the construction of highways.”
That is not the plain meaning of the phrase.
       The cases that the State cites in support of its interpretation of § 5601(e)(8) are
inapposite. Lane v. State, 174 Vt. 219 (2002), addressed the State’s “decisions to pave the
highway with open graded pavement.” Id. at 229. This had nothing to do with the safety
procedures used in actually paving the highway. It merely concerned the design of the
finished highway. McIntosh v. Sullivan, 875 A.2d 459 (Conn. 2005), addressed a

Channelization devices always narrow the roadway. That appears to be the point of using them—
                                        to warn drivers against going off the edge of a drop-off.

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defective highway liability statute, Conn. Gen. Stat. § 13a-144, for which there is no
analog under Vermont law. Dept. of Transp. v. Dupree, 570 S.E.2d 1 (Ga. App. 2002),
concerned a statute stating: “‘plan or design for construction of or improvement to
highways, roads, streets, bridges, or other public works.’” Id. at 7 (quoting Ga. Code
Ann. § 50-21-24(10)) (emphasis added). If anything, this case supports the court’s
decision, as § 5601(e)(8) lacks the “construction of or improvement to” language and
merely provides an exception for planning or design of highways. Finally, Haynes v.
Franklin, 767 N.E.2d 1146 (Ohio 2002), interprets a political subdivision tort liability
statute that excepts “governmental functions” which include “the maintenance and repair
of roads.” Id. at 1149 (citing Ohio Rev. Code § 2744.01(C)(2)(e)). Again, § 5601(e)(8) is
not so worded.
      Accordingly, the court declines to revisit its prior decision and denies the State’s
motion for reconsideration.
       Turning to the State’s alternative motion for permission to appeal, the State argues
that an interlocutory appeal is appropriate pursuant to V.R.A.P. 5.1. Codifying the
collateral order doctrine, this rule provides that:
              a superior judge . . . may permit an appeal to be taken from
              any interlocutory order or ruling if the judge finds that the
              order or ruling conclusively determines a disputed question,
              resolves an important issue completely separate from the
              merits of the action, and will be effectively unreviewable on
              appeal from a final judgment.
V.R.A.P. 5.1(a). Such an interlocutory appeal “is available only ‘in the small number of
extraordinary cases where the normal appellate route will almost surely work injustice.’”
V.R.A.P. 5.1, Reporter’s Notes—1990 Amendment (quoting In re Maple Tree Place
Assocs., 151 Vt. 331, 333 (1989) (per curiam)).
        Courts have been inclined to grant interlocutory review of absolute and qualified
immunity determinations given the personal expense to government officials in partaking
in a full trial after a denial of immunity from suit. See, e.g., Mitchell v. Forsyth, 472 U.S.
511, 527–30 (1985); Murray v. White, 155 Vt. 621, 626–28 (1991); 15A Wright, et al.,
Federal Practice and Procedure § 3914.10 (2005). The same reasoning does not



                                              5
necessarily extend to governments as a whole with respect to sovereign immunity
determinations, though.
              Although appeals often have been allowed, the government
              defendants involved in these cases cannot assert any
              substantial measure of the interests that were relied upon to
              permit appeal by individual officials. The burden of
              continuing litigation is not as likely to discourage courageous
              action, distract from continuing duties, or deter responsible
              people from accepting public office. . . . Many government
              parties, further, can fairly be described as institutional
              litigants that routinely bear the burdens of trial. Real
              advantages would flow from adopting a clear rule that
              domestic government bodies cannot themselves invoke the
              immunity appeal doctrine made available to government
              officials.
Wright, et al., supra.
        At least two federal courts have determined that because U.S. sovereign immunity
is akin to a freedom from liability, rather than a freedom from suit altogether, collateral
order review is inappropriate for pre-trial sovereign immunity decisions. See State of
Alaska v. United States, 64 F.3d 1352, 1356 (9th Cir. 1995) (“Because federal sovereign
immunity is a defense to liability rather than a right to be free from trial, the benefits of
immunity are not lost if review is postponed.”); Pullman Const. Industr., Inc. v. United
States, 23 F.3d 1166, 1169 (7th Cir. 1994) (holding that U.S. sovereign immunity does
not give rise to collateral order review because, unlike Eleventh Amendment and Foreign
Sovereign Immunities Act, sovereign immunity confers right not to pay damages, not
right to be free from suit); see also CSX Transp., Inc. v. Kissimmee Utility Auth., 153
F.3d 1283, 1286 (11th Cir. 1998) (same, applying Florida sovereign immunity law). But
see In re Sealed Case No. 99-3091, 192 F.3d 995, 999 (C.A.D.C. 1999) (holding that
sovereign immunity gives rise to collateral order review).
       Vermont sovereign immunity differs from U.S. sovereign immunity, though. The
Vermont Supreme Court has held that whether sovereign immunity exists is a
jurisdictional question. Lane v. State, 174 Vt. 219, 222 (2002). “The controlling law is
well settled. Lawsuits against the State are barred unless the State waives its sovereign
immunity.” Estate of Gage v. State, 2005 VT 78, ¶ 4 (citing Denis Bail Bonds, Inc. v.

                                              6
State, 159 Vt. 481, 484–85 (1993)). Thus, unlike U.S. sovereign immunity, Vermont
sovereign immunity is more akin to freedom from suit than freedom from liability.
       Accordingly, collateral order review is as appropriate with sovereign immunity
decisions as with absolute and qualified immunity determinations. The V.R.A.P. 5.1(a)
standards are met here. The court’s summary judgment denial (as well as the above
denial of the State’s motion for reconsideration) constitutes a conclusive determination of
the disputed question regarding sovereign immunity. Whether the State can enjoy
sovereign immunity is an issue separate from the merits of this action. And because
sovereign immunity protects the State from suits, the court’s decision that the State
cannot enjoy sovereign immunity is effectively unreviewable from a final judgment
order, which would occur most likely after the parties have tried the case on the merits.
The court therefore grants the State’s motion to appeal the court’s summary judgment
order regarding the State’s sovereign immunity in this case.2 This case shall be stayed
pending the results of the State’s appeal.
                                            ORDER
       For the foregoing reasons, the State’s motion for reconsideration is DENIED and
the State’s motion for permission to appeal is GRANTED. This case shall be STAYED
pending the results of the State’s appeal.


       Dated at Burlington, Vermont, July 26, 2005.




                                                              ___________/s/_____________
                                                                                    Judge




       2
          Given the court’s decision pursuant to V.R.A.P. 5.1, the court need not address whether
an interlocutory appeal is appropriate under V.R.A.P. 5.

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