




2014 VT 130







Langlois v. Town of Proctor (2013-229)
 
2014 VT 130
 
[Filed 05-Dec-2014]
 
NOTICE:  This opinion is subject
to motions for reargument under V.R.A.P. 40 as well as formal revision before
publication in the Vermont Reports.  Readers are requested to notify the
Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont
Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors
in order that corrections may be made before this opinion goes to press.
 
 



2014 VT 130



 



No. 2013-229



 



Kathleen Langlois


Supreme Court




 


 




 


On Appeal from




     v.


Superior Court, Rutland Unit,




 


Civil Division




 


 




Town of Proctor


January Term, 2014




 


 




 


 




William
  D. Cohen, J.




 



John Paul Faignant of Miller Faignant & Robbason, P.C.,
Rutland, for Plaintiff-Appellee/
  Cross-Appellant.
 
Philip C. Woodward of Woodward & Kelley, PLLC, South
Burlington, for Defendant-Appellant/
  Cross-Appellee.
 
 
PRESENT:  Reiber, C.J., Dooley, Skoglund, Robinson and
Crawford, JJ.[1]
 
 
¶ 1.            
DOOLEY, J.   This is an unusual dispute that arose from the
failure of plaintiff Kathleen Langlois, owner of a building with commercial
space on the first floor and an apartment on the second floor, to pay her water
bill for the property to defendant Town of Proctor, and from the Town’s alleged
failure to turn the water off pursuant to the parties’ agreement.  Plaintiff
alleged, in pertinent part, that she arranged with a representative of the Town
that it would disconnect the water service so she would not incur further water
expenses, but that the Town failed to do so.  She further alleged that in
reliance on the Town’s promised undertaking she discontinued heating the
building, causing the pipes containing water to freeze and split under the
first floor of the building, which, in turn, flooded the first floor and
basement, causing extensive damage to the building.  The jury found the Town negligent
and awarded plaintiff damages of $64,918.44.  We reverse and remand because of
the trial court’s failure to instruct on comparative negligence, but affirm in
all other respects.
I.
Procedural History
¶ 2.            
Plaintiff brought this action with four counts: negligence, breach of
contract, consumer fraud, and negligent misrepresentation.  The main count
involved in this appeal alleged that the Town was negligent for failure to turn
off the water and that its negligence was the proximate cause of plaintiff’s
damages.  Another count alleged that the parties had a contract with respect to
the supply of water and that the Town breached the contract by sending a false
notice that it had disconnected the water and by failing to remediate its inaction
once it was discovered.  In the breach-of-contract count, plaintiff also
claimed that the Town had breached its obligation of good faith and fair
dealing.  
¶ 3.            
The Town moved for summary judgment.  With respect to the negligence
count, the Town argued that it had no duty to disconnect the water service or
to disconnect the service with reasonable care or, alternatively, that any duty
was based on its contractual obligations and could not give rise to tort
liability.  With respect to the contract claim, the Town argued that it had no
contractual obligation to disconnect the water service and that it was
exercising its right under a statutory delinquency collection procedure.  It
further argued that the contractual relationship between plaintiff and the Town
was terminated when plaintiff failed to pay her water bill.
¶ 4.            
The superior court eventually dismissed the consumer fraud and negligent
misrepresentation counts, but denied the Town’s motion for summary judgment on
the tort and contract claims.  The court found that there was a material issue
of fact with respect to whether the Town employee actually turned off the water
at the time he said he did.  Moreover the court concluded:
Plaintiff’s claims
are rooted in the Town’s ordinance governing the relationship between the Town
as water supplier and Plaintiff as ratepayer.  The ordinance describes itself
as “a contract between each ratepayer and the Town.”  This contractual
relationship contained in the ordinance, coupled with Town’s alleged negligence
in failing to actually disconnect Plaintiff’s water and alleged
misrepresentations in informing Plaintiff that her water had in fact been
disconnected when it had not, provides a sufficient legal basis for Plaintiff’s
claims.  Defendant is not entitled to judgment as a matter of law.  
 
¶ 5.            
The case was then tried before a jury, which rendered a verdict for
plaintiff.  In answering the special interrogatories, the jury found that there
was a contract between plaintiff and the Town “regarding the turning off of her
water service,” but that the Town had not breached that contract.  It found
that the Town was negligent, that its negligence was a proximate cause of harm
to plaintiff, and that plaintiff’s damages were $64,918.44.
¶ 6.            
On appeal, the Town argues that it had no tort duty to properly turn off
plaintiff’s water service, that the court should have instructed the jury to
apply comparative negligence, and that the instructions on damages were
erroneous because the proper measure of damages is the diminution in value of
the building and, in any event, there was no evidence of that diminution. 
Plaintiff cross-appeals, arguing that the jury instructions improperly failed
to allow the jury to find that the Town breached its duty of good faith and
fair dealing. 
II.
Duty
¶ 7.            
We begin with the question of duty.  As we held recently in Buxton v.
Springfield Lodge No. 679, Loyal Order of Moose, Inc., an action for
negligence fails in the absence of a duty of care.  2014 VT 52, ¶ 7, ___ Vt.
___, 99 A.3d 171.  Whether a duty was present, as well as the scope of any
duty, is primarily a question of law.  Id.  The Town argues that it had
no duty to turn off the water, or to turn the service off in a particular way,
for nonpayment of water charges.  It further argues that the tort duty
plaintiff asserted arose out of the contractual relationship between plaintiff
and the Town, but that plaintiff’s assertion is invalid because a tort duty
must arise independent of any contractual obligations.
¶ 8.            
In response, plaintiff argues that the Town’s tort duty arose from its
undertaking to disconnect the water service and plaintiff’s reliance upon that undertaking. 
She bases this argument on the Restatement (Second) of Torts § 323 (1979).
¶ 9.            
In addressing these arguments, we recognize that theories of duty
significantly morphed during the course of this litigation, and those changes
in theories affect the way the issue is framed on appeal.  The trial judge made
no mention of duty in the instructions to the jury, saying in essence that
negligent failure to properly disconnect the water service was actionable.  Nor
did the summary judgment decision  contain a clear specification of the court’s
theory of duty.  Rather, it stated simply that “this contractual relationship
contained in the ordinance, coupled with misrepresentations in informing
Plaintiff that her water had in fact been disconnected when it had not,
provides a sufficient legal basis for Plaintiff’s claims.”  We note, however,
that the Town did not preserve an objection to the jury instructions, so the
issue on appeal is solely whether plaintiff made out a duty to support her
claim of negligence, not what the scope or nature of that duty was or whether
the trial court properly instructed the jury on duty.
¶ 10.        
In considering that issue, we start with the Restatement section relied
upon by plaintiff on appeal.  Section 323 provides:
     Negligent
Performance of Undertaking to Render Services
 
  One who
undertakes, gratuitously or for consideration, to render services to another
which he should recognize as necessary for the protection of the other’s person
or things, is subject to liability to the other for physical harm resulting
from his failure to exercise reasonable care to perform his undertaking, if
 
  (a) his failure
to exercise such care increases the risk of such harm, or
 
  (b) the harm is
suffered because of the other’s reliance upon the undertaking.
 
Restatement (Second) of Torts
§ 323 (1979).  This Court has applied § 323, and its cousin, § 324A,
which governs harm to a third person, in a number of cases.  See Sabia v.
State, 164 Vt. 293, 302-04, 669 A.2d 1187, 1194 (1995); Smyth v. Twin
State Improvement Corp., 116 Vt. 569, 570-71, 80 A.2d 664, 665 (1951); see
also DeRosia v. Liberty Mut. Ins. Co., 155 Vt. 178, 182-83, 583 A.2d
881, 883 (1990) (adopting § 324A).  Thus, we have recognized and chosen to
follow this Restatement section.
¶ 11.        
Without saying so directly, the Town challenges the application of
§ 323 by claiming that its underlying obligation is contractual.  The Town
relies on a sentence from Springfield Hydroelectric Co. v. Copp, in
which this Court stated that a tort duty of care must be “independent of any
contractual obligations.”  172 Vt. 311, 316, 779 A.2d 67, 71-72 (2001)
(emphasis omitted) (quoting Grynberg v. Agri Tech, Inc., 10 P.3d 1267,
1269 (Colo. 2000)).  The Town argues that there is no recognizable tort duty
because plaintiff is basing the Town’s duty on the breach of a contract to turn
off the water.  The short answer to the Town’s argument is that although the
jury found that the Town had a contractual duty to disconnect the water, it
also found that the Town did not breach that contractual duty.  Thus, the
jury’s award was not based on breach of any contractual duty.  We do not rely
upon the jury determination alone in rejecting the Town’s argument, however,
because neither the judge nor the jury defined the duty on which the tort
liability was based.
¶ 12.        
We conclude that the Town reads too much into Springfield
Hydroelectric.  The issue in that case was whether the plaintiff could
obtain a tort recovery for purely economic losses in the absence of physical
damage.  Thus, the sentence on which the Town relies was part of the overall
holding that negligence liability, even if based on a contractual duty, could
not give rise to recovery for intangible economic loss in the absence of
accompanying physical harm.  Id. at 314-15, 779 A.2d at 70-71.  We did
not hold that the duty on which plaintiff relies for a tort action can never be
contractual.
¶ 13.        
In fact, many of our duty cases are based on undertakings involving
contractually assumed duties.  For example, in Perry v. Green Mountain Mall,
the defendant had a contract with a mall owner to maintain the parking lot and
roads around the mall.  2004 VT 69, 177 Vt. 109, 857 A.2d 793.  The plaintiff
was an employee of a mall store who was injured when her car skidded on ice in
the parking lot, and she sued defendant for negligent failure to remove the
ice.  We found that the plaintiff’s complaint alleged a duty recognized under
§ 324A of the Restatement.  Id. ¶ 10.  Neither § 323 nor
§ 324A suggest that the duty stemming from the undertaking cannot be contractually
based.  Both apply to an undertaking “for consideration,” which is one way to
describe a contract.  Indeed, the only case we have directly on this point
involved a defendant who argued that a § 323 duty had to be
contractual.  See Smyth, 116 Vt. at 570-71, 80 A.2d at 665.
¶ 14.        
The evidence in this case was sufficient for a factfinder to find that
the elements of § 323 were established.  Plaintiff testified that the
agent of the Town responsible for utility disconnections promised to disconnect
the water service to the building.  The Town’s witnesses established that a
Town worker went to the site in May 2009 and believed he had turned off the
water at the “curbstop,” a valve in the right of way.  Thus, there was adequate
evidence of an undertaking, whether gratuitous or contractual.  See Sabia,
164 Vt. at 303, 669 A.2d at 1194 (“[C]ourts generally require very little
action on the part of defendants to find an undertaking.”).  
¶ 15.        
Further, there was evidence that Town workers were aware of the
consequences if water was not disconnected and went into an unheated building. 
In fact, there was testimony that this had happened to another customer about a
year before the events of this case.  Thus, there was evidence that Town
workers recognized that turning off the water was necessary to protect
plaintiff’s property.  Finally, plaintiff testified that she relied upon the
Town employee’s promise to have the water disconnected when she discontinued
heat to the building, meeting the requirement of § 323(b).
¶ 16.        
We recognize that there was conflicting testimony on at least one of the
main elements of the tort and that neither the court nor the jury made findings
resolving the conflict.  The person responsible for utility disconnections for
the Town testified that she did not promise to disconnect the water service and
was not authorized to make such a promise in any event.  Nevertheless, as we
noted above, the Town has not challenged the findings or the jury
instructions.  Thus, the factual disagreement is not before us.  In short, we
reject the Town’s argument on appeal that it had no tort duty to properly turn
off plaintiff’s water.
III.
Comparative Negligence
¶ 17.        
We turn now to the Town’s claim that the trial court’s refusal to
instruct the jury on comparative negligence constitutes reversible error.  The
Town submitted proposed jury instructions that included an instruction on
comparative negligence.  The proposed instruction was generic—it did not
describe the negligence the Town alleged.  There was, however, a conference on
the instructions.  In the conference, plaintiff argued that comparative
negligence did not apply because plaintiff had nothing to do with the failure
to turn off the water—the applicable doctrine was mitigation of damages.  The
Town argued that both mitigation of damages and comparative negligence
were involved because plaintiff should have checked immediately whether the
water was off, and if she had, no damage would have occurred.  The court declined
to include the comparative negligence instruction, stating that “under the
circumstances, I’m not sure what duty Ms. Langlois would have had to go and
check on the house.”  The Town objected to the court’s decision prior to the actual
jury instruction as well as after.  
¶ 18.        
The instructions did include a section on “Mitigation of Damages,” which
applies to each of plaintiff’s recovery theories.  It states that “a person who
has suffered damages has a duty to take protective or preventative measures in
an effort to reduce the harm or prevent its further increase.”  The instruction
noted that the burden of proof for mitigation is on defendant and that if the
jury found “plaintiff could reasonably have avoided some of the damages claimed
by taking any reasonable action” the jury must reduce the award by the amount
that could have been avoided.     
¶ 19.        
The trial court has a duty to instruct the jury on all issues essential
to the case.  Barber v. LaFromboise, 2006 VT 77, ¶ 14, 180 Vt. 150,
908 A.2d 436.  On appeal, the party alleging that the court erred by omitting
an essential instruction must establish that the omission was “both clearly
erroneous and prejudicial.”  Id.  The trial court enjoys discretion over
the extent to which it elaborates on each instruction, but the charge as a
whole must not mislead the jury as to the spirit of the law.  Malaney v.
Hannaford Bros., 2004 VT 76, ¶ 21, 177 Vt. 123, 861 A.2d 1069.
¶ 20.        
The central question is whether, under the evidence, the jury could have
found that: (1) plaintiff was also negligent, such that the jury should have
found the degree of that negligence and compared it to the degree of
defendant’s negligence;  (2) plaintiff should have taken actions to mitigate
her damages; (3) or both.  Whatever the context, other courts and academics
have struggled to find a consistent answer to the question of when comparative
negligence or mitigation of damages applies.  
¶ 21.        
In examining the doctrines, we start with comparative negligence, which
is defined and controlled by statute in Vermont.  Section 1036 of Title 12,
entitled “Comparative Negligence,” provides as follows:
  Contributory
negligence shall not bar recovery in an action by any plaintiff, or his legal
representative, to recover damages for negligence resulting in death, personal
injury or property damage, if the negligence was not greater than the causal
total negligence of the defendant or defendants, but the damage shall be
diminished by general verdict in proportion to the amount of negligence
attributed to the plaintiff.  Where recovery is allowed against more than
one defendant, each defendant shall be liable for that proportion of the total
dollar amount awarded as damages in the ratio of the amount of his causal
negligence to the amount of causal negligence attributed to all defendants
against whom recovery is allowed.   
 
As the words
reflect, comparative negligence was adopted as a replacement for the common law
doctrine of contributory negligence, which denied the plaintiff all recovery if
the jury found that the plaintiff was negligent to any extent and that the negligence
was a proximate cause of the damage.   See Washburn v. Tracy, 2 D. Chip
128, 136, 1824 WL 1346, at *1 (Vt. 1824) (“[T]he law is, that where the injury
arises from the plaintiff’s own misconduct, or want of ordinary caution,
notwithstanding the defendant’s neglect, . . . the plaintiff cannot recover.”). 
The statute establishes a policy of “modified comparative negligence” that
allows a recovery if plaintiff was responsible for fifty percent or less of the
total causal negligence.  Under the statute, defendant is responsible for that
percentage of plaintiff’s damages that is equal to the percentage of causal
negligence attributable to the defendant.  Comparative negligence thus operates
to reduce a plaintiff’s recovery by comparing the parties’ relative negligence in
causing plaintiff’s injury.  Gilman v. Towmotor Corp., 160 Vt. 116, 121,
621 A.2d 1260, 1263 (1992).  In the typical case, each party’s fault has
contributed to the whole harm.  “Because the plaintiff has suffered but one
harm that cannot be divided into parts, courts in a comparative negligence
system apportion liability between the plaintiff and defendant in proportion to
their fault in causing the loss as a whole.”  1 D. Dobbs et al., The Law of
Torts § 229, at 822 (2d ed. 2011).  
¶ 22.        
Mitigation of damages also operates to reduce a plaintiff’s recovery,
but derives from damages law generally, with a different justification.  Under
the mitigation of damages doctrine—also known as the doctrine of avoidable
consequences—a plaintiff may not recover for any damages that the plaintiff
could have avoided or minimized through reasonable care or expenditure.  Id.,
at 820.  We have recognized damages mitigation as part of Vermont’s common tort
law for well over a century.  In Lloyd v. Lloyd, 60 Vt. 288, 288, 13 A.
638, 639 (1888), this Court held that, where plaintiff could have reasonably
avoided $100 of damages by spending $25, he was entitled to recover only $25,
reasoning:
 
It is the duty of a person injured by the fault of another to use all
reasonable means to protect himself against injurious consequences.  If injured
in his person he must attend to his cure. If injured in his estate he must
attend to its preservation.  If he fails in this duty he cannot gather the
fruits of his own negligence. 
 
See also Brown
v. Sutkowski, 117 Vt. 377, 379, 91 A.2d 556, 557 (1952); Restatement
(Second) of Torts § 918 (1979).  The rule of avoidable consequences is a
negligence rule, and the negligence analysis for determining whether
consequences could have been avoided is the same as the analysis for
determining whether plaintiff was contributorily negligent.  Restatement
(Second) of Torts § 918 cmt. c (1979).
¶ 23.        
Generally, the avoidable consequences rule is applied when courts can
identify and isolate two or more distinct items of harm resulting from two or
more distinct acts or causes.  When courts deem it just, they can allocate the
entire responsibility for one discrete item of harm to the plaintiff as the
responsible party causing that particular harm.  Dobbs, supra, at
822.  Damages mitigation thus depends on analyzing the cause of each item of
damages and barring the plaintiff completely from recovering those damages for
which he or she is deemed responsible.  This is sometimes referred to as
“causal apportionment,” in contrast with the comparative negligence “fault
apportionment.”  Id. at 822-23.  Depending on which method is used, a
plaintiff’s damages may come out differently.  Id.  
¶ 24.        
Jurisdictions differ in how the two rules interact.  In some cases,
comparative negligence essentially subsumes mitigation, with all reduction in a
plaintiff’s recovery controlled only by relative fault.  E.g., Ridley v.
Safety Kleen Corp., 693 So. 2d 934, 943-44 (Fla. 1996) (interpreting Florida
statute to require only comparative fault assessment and not mitigation).  This
is also the direction taken by the Third Restatement of Torts.  See Restatement
(Third) of Torts: Apportionment of Liab. § 3 cmt. b (2000) (“This Section
applies to a plaintiff’s unreasonable conduct that aggravates the plaintiff’s
injuries.  No rule about mitigation of damages or avoidable consequences
categorically forgives a plaintiff of this type of conduct or categorically
excludes recovery.”); id. § 8 (setting forth factors for assigning
responsibility amongst all persons involved in tort, including plaintiff).
¶ 25.        
Other jurisdictions apply the damages mitigation doctrine only to a
plaintiff’s post-injury conduct and apply comparative negligence to damages
from all other sources.  E.g., Kocher v. Getz, 824 N.E.2d 671, 674 (Ind.
2005) (applying damages mitigation only to post-injury conduct).  This is the
historical majority rule, and the rule plaintiff urges us to adopt in this
case.  See 3 J. Stein, Personal Injury Damages § 18:2 (3d ed. 2014) (stating
that determination of which doctrine applies “is generally considered to be
dependent on the sequence of events”); Y. Adar, Comparative Negligence and
Mitigation of Damages: Two Sister Doctrines in Search of Reunion, 31
Quinnipiac L. Rev. 783, 799 (2013) (“It is universally accepted that the ‘duty
to mitigate’ arises only after the completion of the legal wrong against the
plaintiff, that is, in the context of a tort action, only once the tort is
complete.”).  Still other jurisdictions apply damages mitigation only to
discrete items of harm that are tied to a plaintiff’s conduct and apply comparative
negligence to damages from all other sources.  E.g., Halvorson v. Voeller,
336 N.W.2d 118, 121 (N.D. 1983) (adopting minority view that pre-injury conduct,
such as not wearing motorcycle helmet, may be used to mitigate damages in amount
that injury could have been avoided by such use).  
¶ 26.        
We have never decided this question.  See Grazulis v. Curtis, 149
Vt. 371, 372, 543 A.2d 1324, 1326 (1988) (stating that question of which
doctrine applies not reached because of lack of preservation).  In the leading
case of Smith v. Goodyear Tire & Rubber Co., 600 F. Supp. 1561 (D.
Vt. 1985), Judge Coffrin addressed whether the plaintiff’s failure to wear a
seatbelt could be comparative negligence or violate the plaintiff’s duty to
mitigate damages where the plaintiff is injured in an automobile accident by a
negligent driver.[2]
 The court held that the jury could find the plaintiff negligent for not
wearing a seatbelt, such that the plaintiff’s negligence would be compared
under the statute to that of the defendants for purposes of determining the
extent of liability.  Id. at 1565.  The court specifically rejected the plaintiff’s
argument that because the plaintiff’s seatbelt nonuse was related only to the
extent of his injuries and not to the accident, it could not be compared under
the statute.  It held that the courts that had drawn this distinction did so to
avoid the harsh doctrine of contributory negligence, and stated that “due to
Vermont’s comparative negligence doctrine, we need not resort to such judicial
sleight-of-hand.”  Id. at 1566.   It also held that the jury could
consider nonuse of a seatbelt as a breach of plaintiff’s duty to mitigate
damages even though the act of failing to engage the seatbelt preceded the
accident.[3] 
Id. at 1567.  Smith was a diversity-of-citizenship case and was
applying Vermont law, specifically the comparative negligence statute.
¶ 27.        
Before we look to the facts of this case, we must address the trial
court’s basis for refusing to instruct on comparative negligence—that plaintiff
had no duty to determine whether the water had been turned off.  We reject this
conclusion.  In the context of a comparative fault analysis, plaintiff had a general
duty to take due care with respect to her own property.   The questions for the
jury were, under the circumstances of this case, whether plaintiff failed to
take due care and, if so, to what extent her conduct caused the claimed
injuries.
¶ 28.        
In the case before us, we conclude that comparative negligence applies,
at least in part, regardless of the theory we follow.  The relevant sequence of
events was as follows.  Plaintiff testified that pipes had frozen and split in
the apartment previously and as recently as the winter of 2008-2009.  No
significant damage occurred as a result of this break because it was identified
quickly.  Plaintiff testified that she had her plumber friend drain the pipes
in the building shortly thereafter—although accounts differ as to when this
actually happened because the plumber friend later testified that he drained
the pipes in the fall of 2009.[4] 
The plumber turned off the water at a turn-off valve on the first floor of
the building.
¶ 29.        
No one from the Town attempted to enter the building[5]
and check whether the water was off after the May 2009 attempt to turn it off
at the check valve.  The witness for the Town testified that such a check was
not done in case of an involuntary disconnection to avoid a confrontation with
the owner.  
¶ 30.        
The damage was caused by a frozen and split pipe in an unfinished
basement under the first floor.  The pipe from the main line came in through
the foundation and up to the first floor where the turn-off valve had been installed. 
The split occurred in that line before it reached the first-floor turn-off
valve.  A witness called by the Town testified that all buildings have a cellar
valve where one can and should turn off water coming into the house because the
pipe from the Town line is below the frost depth until it enters the house. 
The plumber did not attempt to turn off the water at a cellar valve, leaving
water between that point and the first-floor valve.[6]
¶ 31.        
As noted, town employees came to plaintiff’s house to shut the water off
at the curb stop in May 2009.  Plaintiff did not heat the building at all
during the winter of 2009-2010, when the pipe presumably burst.  Plaintiff used
part of the building periodically in 2010 to temporarily store trash, but did
not enter the part of the first floor where the leak occurred until August 10,
2010, when the leak was discovered.  At trial, the only damage assessment was
provided by plaintiff’s expert witness, who estimated the cost of repair to the
building would be $97,523.75 and testified that the damage to personal property
in the building amounted to around $5,521.40.
¶ 32.        
The traditional temporal line to determine whether comparative
negligence or mitigation/avoidable consequences applies is when the plaintiff
becomes aware of being harmed by the defendant’s negligence.  See Adar, supra,
at 819 (stating that historical temporal borderline between comparative
negligence and failure to mitigate “is the moment in which the [plaintiff] becomes
aware of . . . becoming a victim of a tort”); 3 J. Stein, Personal Injury
Damages § 18:2 (3d ed. 2014) (stating that avoidable consequences applies
“after the plaintiff has been injured by the defendant under circumstances in
which the defendant is liable for the original injury [and] some of the
injuries could have been avoided by the plaintiff’s exercise of reasonable
precautions”). We recognize that the Town is contending that plaintiff was
negligent in not becoming aware of the water damage earlier.  Arguably,
plaintiff should have checked the part of the first floor where the water was
running both before and after the temperature fell to the point where the pipe
split, but it is difficult to determine what damage would have been avoided
even if one chose an arbitrary date by which the leak should have been
discovered.  This is a question of fact for the jury on remand.
¶ 33.        
The modern approach to comparative negligence and avoidable consequences
is based on the recognition that these doctrines address identical policy
judgments but reach different results.  See Adar, supra, at 839-40.  As
a the Reporters’ Note to the Third Restatement of Torts explains:
 
Before comparative responsibility, a plaintiff’s negligent post-accident
failure to mitigate damages barred recovery for that portion of the damages. 
The jury was instructed not to include such damages in the
verdict. . . .  This approach made sense when a plaintiff’s
negligence was an absolute bar to recovery; it barred the plaintiff from
recovering any damages caused by plaintiff’s negligent failure to mitigate.  By
instructing the jury to consider a plaintiff’s negligent failure to mitigate
damages in the damages question, courts avoided confusing the jury into
thinking that the plaintiff’s conduct should also bar the plaintiff from
recovering for the original injuries.  Under comparative responsibility, it no
longer makes sense to have a plaintiff’s negligence constitute an absolute bar
to recovery, even for the portion of plaintiff’s injuries caused by that
conduct.  The underlying premise of comparative responsibility is that a
plaintiff’s negligence should reduce, not bar, the plaintiff’s recovery for any
damages caused both by that conduct and the defendant’s conduct.  A plaintiff’s
failure to mitigate damages should no longer constitute a bar to recovering
those damages.  Under comparative responsibility, a plaintiff’s negligent
failure to mitigate damages is a factor to consider when assigning percentages
of responsibility.  It does not totally exclude recovery of damages caused by
plaintiff’s failure to mitigate.
 
Restatement (Third) of Torts:
Apportionment of Liab. § 3, Reporters’ Note, cmt. b. (2000).
¶ 34.        
Several considerations favor adopting this view.  First, while we are
not constrained to follow the Restatements, we have generally done so unless
there is a strong rationale to the contrary.  See Provoncha v. Vt.
Motorcross Ass’n, 2009 VT 29, ¶ 12, 185 Vt. 473, 974 A.2d 1261 (following
Restatement (Third) of Torts: Apportionment of Liab. § 2 cmts. d, e. (2000)); Windsor
Sch. Dist. v. State, 2008 VT 27, ¶ 18, 183 Vt. 452, 956 A.2d 528 (following
Restatement (Third) of Torts: Apportionment Liab. § 22(a)(2)(ii) (2000)).  We
see no such strong rationale here, but the parties have not briefed the issue. 
Second, the Restatement policy to abandon mitigation of damages in negligence
cases is consistent with our comparative negligence statute, which draws no
temporal distinction.  12 V.S.A. § 1036 (stating that “the damage shall be
diminished by general verdict in proportion to the amount of negligence
attributed to the plaintiff”).  Finally, applying comparative negligence
irrespective of when a plaintiff’s negligence occurs in relation to the
completion of a defendant’s tort would be less confusing for the jury and
appears to be the best policy in that the timing of plaintiff’s negligence would
not necessarily be determinative of the ability to recover any item of damage.
¶ 35.        
On the other hand, the parties have not briefed this issue and there is
limited case law addressing the Restatement’s view on this point.  See Adar, supra,
at 784-85 (noting that Third Restatement’s “revolutionary proposition . . . has
barely been mentioned by American courts and has not yet been discussed in the
academic literature”).[7]
 Accordingly, we make no determination here whether the Third Restatement
position should be adopted in all cases, even those cases involving multiple
discrete harms, with one or more of the harms attributable solely to the
plaintiff’s actions.  See Dobbs, supra, §§ 229-30, at 822 (noting that
avoidable consequences rule most often applies when plaintiff is entirely
responsible for one of multiple discrete harms, and that some courts apportion
responsibility entirely under comparative fault rules when plaintiff and
defendant are both responsible for plaintiff’s injury).  In this case, however,
there is no allegation of plaintiff’s negligence after she discovered the
injury, and no discrete damages allegedly attributable solely to plaintiff.  Thus,
we agree with the Town that the court should have instructed the jury on comparative
negligence rather than on damages mitigation to respond to its claim of
plaintiff’s negligence.
¶ 36.        
In short, the instructions as a whole did not contain the spirit of the
law.  If we could determine from the damages award or the interrogatories[8]
that the jury found that plaintiff was not negligent and was not obligated to
mitigate damages, we could find an absence of prejudice.  We cannot do so here—the
damages awarded by the jury were less than plaintiff claimed.  We therefore
reverse and remand.  On remand, the trial court must instruct the jury on
comparative negligence.
IV.
Damages
¶ 37.        
Because we reverse and remand on the issue above, it is not required
that we address the next issue.  We do so, however, because it is likely to
arise again in a second trial.  The Town argues that the trial court erred in
its instruction to the jury on damages, which we review under the same standard
articulated above.  Supra, ¶ 22.[9] 
Again, we look to the jury instruction as a whole, rather than any particular
sentence, to see whether it “breathes the true spirit and doctrine of the
law.”  Callan v. Hackett, 170 Vt. 609, 609, 749 A.2d 626, 628 (2000)
(mem.) (quotation omitted).  If the instruction does not mislead the jury as to
the law, we will uphold it.  Id.  
¶ 38.        
The court issued its instructions on damages as follows:  
 
As a jury, it is your obligation to arrive at an amount which is supported by
the evidence and fair to both the parties.  The amount of damages, if any, is a
determination for the jury.  The plaintiff bears the burden of proving her
damages by a preponderance of the evidence.  In this action, . . .
the plaintiff is seeking to recover for damages to her property due to flooding. 
For the breach of contract claim, plaintiff seeks as damages the amount that
would place her in a position she would have been in had the defendant not
breached the contract. . . .  For property that has been damaged
but can be repaired, the measure of damages is generally the cost [of]
repairing the property.  For property that has been destroyed and cannot be
repaired, the difference in the value of the property before and after it was
destroyed is the measure of damages.  As to the negligence claim, the measure
of damages is, again, either the cost of repairing the property damaged by the
defendant’s negligence or the decrease in value of the property damaged by the
defendant’s negligence.  
 
¶ 39.        
The Town argues that the instruction above is erroneous because it does
not include a statement that diminished-value damages should be used when cost-of-repair
damages are disproportionate to the value of the property.  It concedes that
this principle, known as the “doctrine of economic waste,” has never been applied
in Vermont “in this precise factual context.”  As the Town has cited only breach-of-contract
cases in support of this point, we assume it is referring to the context of
tort damages to real property.
¶ 40.        
The Town argues further, as it must, that plaintiff’s proof of her cost-of-repair
damages was not complete without evidence that those damages were not
disproportionate to the value of the property.  It reasons that without such
evidence the jury would be unable to calculate damages with reasonable certainty. 

¶ 41.        
In the context of a tort action for damage to real property, we have
stated the rule for damages as follows: 
 
If the injury is temporary in the sense that restoration can cure the harm, the
reasonable cost of repair may serve the need and provide adequate and fair
compensation.  If the damage is permanent and beyond full repair, the variance
in value of the property before and after the injury often affords the better
guide to a just award.  It all depends upon the character of the property and
the nature and extent of the injury.
 
Bean v. Sears, Roebuck &
Co., 129 Vt. 278, 282, 276 A.2d 613, 616 (1971).  This is essentially the
instruction that the trial court gave.  The Town’s objection is that the court
did not go on to explain that cost-of-repair damages are inappropriate if they
are out of proportion to the value of the property.
¶ 42.        
Most jurisdictions follow some version of our rule from Bean
quoted above.  See Dobbs, supra, § 481 at 20.  Jurisdictions
differ, however, on how they determine whether an injury is “temporary” or
“permanent” and therefore when and how to award cost-of-repair damages as
opposed to diminished-value damages.  Id. § 481, at 20-22.  Some
courts have adopted the rule that the Town promotes—that, even if the injury is
temporary, if the cost of repair is greater than the value of the property
prior to injury, damages should be limited to the value of the property or the
diminution in value.  Alesko v. Union Pac. R.R. Co., 109 P.2d 874, 877
(Idaho 1941).  Other courts state simply that the permanence of an injury is a
question for the jury and, further, that the jury may consider evidence of both
types of damages together in their deliberations on the appropriate amount.  E.g.,
Rempfer v. Deerfield Packing Corp., 72 A.2d 204, 209-10 (N.J. 1950)
(citing cases).
¶ 43.        
We acknowledge that our explanation in Bean that “[i]t all
depends on the character of the property and the nature and extent of the
injury” is not especially descriptive, but in that opinion we also refer to
“reasonable cost of repair” and a “just award.”  129 Vt. at 282, 276 A.2d at
616.  We have held in the contracts context that costs of repair are an
appropriate measure of damages unless they are “so inordinate and excessive as
to be unreasonable and wasteful.”  Sheldon v. Ne. Devs., Inc., 127 Vt.
15, 18, 238 A.2d 775, 777 (1968).  Our touchstone for determining damages, in tort
as in contract, is reasonableness.  Bean, 129 Vt. at 282, 276 A.2d at
616.  We now clarify that the proportionality of cost-of-repair damages relative
to the value of the property prior to a tort injury to property is part of the
general inquiry on the reasonableness of damages.
¶ 44.        
Our recognition of this rule, however, helps the Town only if plaintiff
had the burden to show that the repair damages were disproportionate to value. 
This is true because the Town offered no evidence that the repair costs were
disproportionate, and in the absence of evidence on this point, the trial court
had no reason to instruct the jury on the point.  The Town urges us to require
this disproportionality inquiry as part of plaintiff’s prima facie case, citing
our case law requiring sufficient proof of damages generally, such that the
jury may determine damages “with reasonable certainty.”  Ferrisburgh Realty
Investors v. Schumacher, 2010 VT 6, ¶ 22, 187 Vt. 309, 992 A.2d 1042
(quotation omitted).  We hold instead that the burden of introducing additional
evidence with respect to the proportionality of cost-of-repair evidence more
appropriately falls on the party who wishes to challenge the cost-of-repair
evidence, in this case the Town.  See Martin v. Design Constr. Servs., Inc.,
2009 -Ohio- 1, ¶¶ 24-25, 902 N.E.2d 10 (establishing that evidence of
diminution of market value of property bears on reasonableness of cost-of-repair
damages and may be introduced by either party).
¶ 45.        
Our standard rule for tort damages is that “plaintiffs must prove, by a
preponderance of the evidence, the extent and nature of their damages. 
Plaintiffs must further show that such damages are the direct, necessary, and
probable result of defendant’s negligent act.”  Callan
v. Hackett, 170 Vt. 609, 609, 749 A.2d 626, 628 (2000) (mem.) (citation
omitted).  We see no reason to alter this rule for plaintiff’s prima facie
case.  
¶ 46.        
In the case at hand, plaintiff introduced expert evidence as to the
nature and extent of her cost-of-repair damages in the amount of $97,523.75.  Plaintiff
testified that she bought the damaged building, her house, and the land on
which both buildings stood for a total of $130,000 in 2005.  Plaintiff also
testified that she made significant improvements to the building between 2005
and 2008, including a new oil tank, furnace, panel box, breakers, meter pan,
entry door, entry subfloor, kitchen floor, kitchen sink, toilet, bathroom sink,
bathroom pipes, and bedroom carpeting.  She also stated that she refinished
hardwood floors in another three rooms.  Plaintiff introduced no evidence of
the total cost of these improvements; the resultant change in the value of the
building due to these improvements; the relative value of the damaged building
as compared to the house and the land; the current value of any of the property
she purchased in 2005; or the value of the building immediately prior to the burst
pipe in this case.  The Town introduced no evidence regarding damages at all,
but claimed instead during closing arguments—as it claims on appeal—that
plaintiff had not met her burden of proof because she did not provide evidence
as to the value of the building before or after the damage occurred.
¶ 47.        
The Town is mistaken as to the burden of production.  Plaintiff met her
prima facie case simply by showing evidence of her cost-of-repair damages,
chiefly through the testimony of her expert witness.  Plaintiff’s expert’s
opinion on the matter was uncontradicted and supported by the record.  Although
plaintiffs always bear the burden of proof as to the reasonableness of damages,
once plaintiff made a prima facie case, the burden of production was then on
the Town to present evidence that cost-of-repair damages in this case were
unreasonable, for instance in comparison with the value of the building in
2008, or in comparison with the diminution in value of the building before and
after the damage occurred.
¶ 48.        
In light of the foregoing analysis of our law on damages, we find that
the jury instruction on finding damages in this case was not an abuse of the
trial court’s discretion, in that it sufficiently reflected the spirit of the
law in light of the evidence presented.  Barber, 2006 VT 77, ¶ 14. 
Although the instruction might have been clearer had it used the word
“reasonable” in reference to the amount of damages to be awarded, the term was
implied in the choice the court gave the jury between two methods of damages
valuation and also in the instruction that:  “As a jury, it is your obligation
to arrive at an amount which is supported by the evidence and fair to both the
parties.  The amount of damages, if any, is a determination for the jury.” 
Given that no evidence was introduced by either party as to the value of the
building prior to the damage, or as to the diminution in value of the building
before and after the damage, no instruction was necessary on those points.
V.
Implied Covenant of Good Faith and Fair Dealing
¶ 49.        
The final issue is raised by cross-appeal.[10] 
Plaintiff challenges the failure of the trial judge to instruct the jury, separately
and in detail, on plaintiff’s claim that the Town violated the implied covenant
of good faith and fair dealing.  To evaluate this claim, we must examine plaintiff’s
underlying theory that the Town breached a contract between plaintiff and the
Town with respect to the supply of water, a theory that the Town opposed and
the jury rejected on the instructions provided it.
¶ 50.        
In her complaint, plaintiff alleged that the parties had a contractual
relationship with respect to the supply of water and the Town breached the
contract “in sending a false notice that the water had been shut off” and in
“failing to remediate the action immediately after it was discovered.”  Plaintiff
alleged that this conduct not only breached the contract but also breached the
Town’s “obligation of good faith and fair dealing.”  
¶ 51.        
From the beginning the Town responded that any contract between it and plaintiff
terminated because of plaintiff’s breach by failing to pay her water bill.  It
argued that its actions were part of a delinquency procedure that was not
contractual but rather were regulated by statute and not contract.  In response
to the Town’s motion for summary judgment, plaintiff developed the theory that
the ordinance provisions created a contract that the Town breached.  Without
explicitly accepting this theory, the court denied the motion for summary
judgment and allowed the jury to consider plaintiff’s count that the Town
breached a contract and specifically breached the covenant of good faith and
fair dealing.
¶ 52.        
Plaintiff’s theory became more explicit in her proposed jury
instructions.  These proposed instructions described plaintiff’s contract theory
as: “Plaintiff alleges that the Ordinance and policies adopted by the Town
pursuant to the same require that the Defendant properly perform water
disconnections, that the Town provide contemporaneous notice of disconnection,
and that the Town confirm that said water disconnections were done properly.” 
She requested an explicit instruction on the covenant of good faith and fair
dealing, with a quote describing the covenant primarily from our decision in Harsch
Props., Inc. v. Nicholas, 2007 VT 70, ¶¶ 14-18, 182 Vt. 196, 932 A.2d 1045. 
The proposed instruction then described the jury’s responsibility as to
determining whether the Town represented that the water was shut off, when it
was not, and whether the failure to shut off the water “was unfair and
unreasonable and not made in good faith towards Plaintiff.”  It concluded that
the jury had to find a violation of the covenant if the Town’s actions were
unfair and unreasonable and not in good faith and “Plaintiff relied on those
actions.”
¶ 53.        
The court rejected the proposed instruction and charged as follows:
  Plaintiff asserts two potential sources
for a contract between herself and the [defendant].  First, she contends that
the Town of Proctor’s 2006 water rules constitute a written contract.  Second,
she contends that the oral contract was formed when the defendant undertook to
turn off the water service to her property, and she relied on defendant’s
promises to turn off the water service to her own detriment.
. . . .
  If you find by a preponderance of the
evidence that a contract between the plaintiff and the defendant existed under
either of these theories, then you should go to consider whether the defendant
breached the contract.  If you find that the plaintiff and the defendant had a
contract where the defendant promised to turn off the water service to
plaintiff’s property, you must then decide whether the defendant failed to
perform its obligation under the contract.
  Plaintiff claims that defendant
breached the contract by failing to turn off the water service and by acting in
bad faith.  All the contracts contain an implied duty that requires the parties
to perform their obligations in good faith.  You may conclude that the
defendant acted in bad faith in carrying out its obligations under the
contract.  If you find that it is more likely than not true that there was a
contract and the defendant breached the contract, then you should go on to
consider damages.  Otherwise, your verdict on this claim should be for the defendant.
The court submitted special
interrogatories to the jury, specifically: “has the plaintiff proven that there
was a contract between herself and defendant regarding the turning off of her
water service?”—to which the jury answered “Yes”—and “has the plaintiff proven
that defendant breached the contract?”—to which the jury answered “No.”  The
jury’s negative answer to the second question ended their consideration of the
plaintiff’s breach-of-contract theory.  Plaintiff did not object to the failure
of the court to use its proposed instructions on good faith and fair dealing.
¶ 54.        
Plaintiff argues here that the charge as given “failed to encompass the
breadth of the covenant, eliminating from the jury’s consideration the catalog
of conduct sufficient to warrant a finding of bad faith.”  Plaintiff itemized the
Town’s conduct that she believed violated the covenant: (1) denying any intent
to enter into an agreement to disconnect the water service and characterizing what
occurred as a delinquency procedure rather than a voluntary termination; (2)
denying that plaintiff could rely upon representations from defendant’s
employee; (3) denying the true purpose of an employee’s search for a written
work order; and (4) falsifying the state of plaintiff’s property and the
standpipe above the shut-off valve at the time the water leak was discovered.
¶ 55.        
In evaluating these claims, we will assume that the court correctly
decided to submit plaintiff’s breach-of-contract claims to the jury.  Although the
Town argued below, and argues here, that there was no contract with respect to
the disconnection of water service, we need not reach that argument because the
jury found there was no breach and, except for the language concerning the
covenant of good faith and fair dealing, plaintiff has not challenged the jury
instructions.  Thus, on remand, nothing is left of plaintiff’s breach-of-contract
claims, unless we reverse with respect to the jury instructions on the covenant.
¶ 56.        
Before we discuss the merits of plaintiff’s arguments, we note that the
detailed violations of the covenant that plaintiff alleges in her brief are
significantly different from the violations alleged in her proposed jury
instructions.  The difference is particularly significant because the appeal
issue is whether the trial court erred in refusing to use plaintiff’s proposed
jury instruction on good faith and fair dealing.  While we do not decide on
this basis because it is significantly narrower than the rationale below, we
note that the grounds now asserted were not preserved in the superior court.
¶ 57.        
Our main decision on the covenant of good faith and fair dealing is Carmichael
v. Adirondack Bottled Gas Corp., 161 Vt. 200, 635 A.2d 1211 (1993).  In
that case, the plaintiff and her husband purchased a petroleum gas
distributorship and signed a supply agreement with the defendant, which according
to a term of the contract, would automatically terminate on the death of the plaintiff’s
husband or other events.  The husband died, and the plaintiff took over the
business.  Rather than terminating the agreement, the defendant made an offer
to buy the distributorship to turn it into a retail outlet for the defendant,
but the plaintiff rejected the offer.  In response to the rejection, the defendant
discontinued supplying the business with petroleum, invoking the “key man”
provision that became applicable on the husband’s death.  Litigation resulted. 
The plaintiff alleged that the defendant’s action, using the “key man”
provision as a way to induce a sale to it at a favorable price, was a violation
of the covenant of good faith and fair dealing.
¶ 58.        
We looked to the Restatement (Second) of Contracts § 205 (1981) to
define the scope of the covenant, its coverage and application.  Id. at
208, 635 A.2d at 1216.  The covenant implements the “underlying principle
implied in every contract . . . that each party promises
not to do anything to undermine or destroy the other’s rights to receive the
benefit of the agreement.”  Id.  It exists to ensure that parties to a
contract act with “faithfulness to an agreed common purpose and consistency
with the justified expectations of the other party.”  Id. (quoting
Restatement (Second) of Contracts § 205 cmt. a (1981)).  We noted the difficulty
in defining a breach of the covenant other than stating the general principles
that an action for breach is no different than a tort action and that the
concept varies with the context.  Id.   We added that the conduct
involved violates community standards of decency, fairness, or reasonableness. 
Id. (quoting Restatement (Second) of Contracts § 205 cmt. a. (1980)). 
We quoted from the Restatement comments the type of conduct that violates the
covenant.  Id. at 208-09, 635 A.2d at 1216-17.
¶ 59.        
We held in Carmichael that the facts presented a jury question
whether defendant had violated the covenant by using the key man provision to
force a sale at an unreasonably low price.  This case is far different from Carmichael. 
Here, the jury instructions defined the underlying contract as one to turn off
the water, based on either the Town ordinance or the promise of Town staff to
do so.  The jury found such a contract, enabling plaintiff to argue that the
implied covenant had been breached.  Nevertheless, as in Carmichael,
plaintiff had to identify conduct separate from that which breached the
underlying contract to form the basis for the breach of the implied covenant.  In
essence, plaintiff has argued that the conduct that breached the covenant was
the Town’s refusal to admit its liability for plaintiff’s damages.  
¶ 60.        
All of the events that plaintiff itemized in her brief to this Court
involve testimony of employees of the Town at trial, rather than the actions
they took.  A good example is the first of the actions plaintiff claimed
violated the covenant: “[T]he Town did not act in good faith when at trial it
denied any intent to enter into any agreement to disconnect the water service,
stating that it was a delinquency procedure versus voluntary termination, and
that [plaintiff’s] request on May 12, 2009, was somehow deficient to qualify as
a valid request for termination.”  The testimony was of an administrative
employee of the Town who was responsible for administering water bills and
their collection.  She testified that she never promised to have plaintiff’s
water service disconnected and that she could not make such a promise because
she did not have the power to fulfill it.  She further testified that a
voluntary termination, which is what plaintiff requested, is permitted only with
respect to a person who has paid all outstanding water bills, which plaintiff
had not.
¶ 61.        
We recognize that the covenant covers not only contract performance, but
also contract enforcement.  Restatement (Second) of Contracts § 205 (1980).  A
comment to this Restatement provision indicates that enforcement includes
“settlement and litigation of contract claims and defenses,”  id. cmt.
e, and that the “obligation is violated by dishonest conduct such as conjuring
up a pretended dispute, asserting an interpretation contrary to one’s own
understanding, or falsification of facts.”  Id.  We also recognize that the
jury must have disbelieved the testimony of the employee to some extent in
finding a contract, and yet believed the testimony to some extent in finding no
breach of the contract.  But disbelieving testimony based on recollection of
past events is not a finding that there was “falsification of facts.”  We do
not believe there was sufficient evidence of actual falsification to get to the
jury on that claim.
¶ 62.        
Further, plaintiff’s theory is based on its disagreements with the Town’s
interpretation of its obligation under its ordinance and, therefore, under the
theory that plaintiff put forward that the ordinance provisions were the
substance of the contract between the parties.  Throughout the litigation,
plaintiff struggled with trying to fit her theory within the regulatory
language that prevented termination of service without adequate grounds, notice,
and process, rather than a direction to terminate service whatever the
circumstances.  The Town adopted the view that no provision required it ever to
terminate service and, therefore, that it never breached any contract based on
the statute and ordinance.  Whether or not plaintiff’s contract theory was
viable, the jury could evaluate the competing claims, and there is no evidence
that the Town’s position was so unreasonable as to constitute bad faith.  As
the Tennessee Court of Appeals observed:
  The Court is unwilling to find that a
party may be held liable for a breach of contract for holding out a good faith
but mistaken interpretation of a contract provision.  A contrary holding would
open a veritable Pandora’s Box of litigation, rendering every losing party in a
contract dispute potentially liable for a breach of contract based solely on
the fact that the Court did not hold with that party’s interpretation of a
contract provision.  The Court finds that this is a box best left closed.
Dick Broad. Co. v. Oak Ridge
FM, Inc., 2011 WL 4954199, at *7 (Tenn. Ct. App. Apr. 11, 2012) (quoting
trial court opinion); see also SCO Grp., Inc. v. Novell, Inc., 2007 WL
2327587, at *37 (D. Utah Aug. 10, 2007) (no breach of implied covenant where
defendant maintained contract interpretation position in litigation that was
not objectively unreasonable and where there was no evidence that it was
contrary to defendant’s own understanding of meaning), reversed in part on
other grounds by SCO Grp., Inc. v. Novell, Inc., 578 F.3d 1201 (10th
Cir. 2009); Dotcom Assocs. I, LLC v. United States, 112 Fed. Cl. 594,
600 (2013) (every breach-of-contract suit involves claim that defendant owes
plaintiff money; even if correct, that alone cannot be grounds for breach of implied
covenant); Bayou Land Co. v. Talley, 924 P.2d 136, 154-55 (Colo. 1996)
(covenant does not extend to bringing suit to settle dispute over meaning of contract).
¶ 63.        
All of plaintiff’s grounds have deficiencies similar to those itemized
above for the first ground.  We recognize that plaintiff’s position is that the
Town put up a trumped-up defense simply to avoid admitting that it erroneously
failed to terminate plaintiff’s water service and paying her for the damages
she suffered.  We cannot conclude, after full review of the evidence, that the jury
could have found the Town’s defense to have been presented in bad faith, and we
hold that plaintiff was not entitled to any instruction on its theory of breach
of the implied covenant of good faith and fair dealing.  Because the evidence
did not support this theory we do not need to decide whether the jury
instructions on the theory were adequate.  Because plaintiff’s claim regarding
the implied covenant is the only remaining breach-of-contract claim, the remand
ordered in the mandate below involves only the Town’s claim that plaintiff was
negligent and not that the Town breached a contract.
Reversed and remanded for a new trial.
 



 


 


FOR THE COURT:




 


 


 




 


 


 




 


 


 




 


 


Associate
  Justice



 




[1] 
Justice Crawford was present for conference on the briefs, but did not
participate in this decision.


[2]
 Smith also addressed whether comparative negligence applied in strict
liability cases; that part of the decision is not relevant here.  We also note
that under current statutory law, noncompliance with provisions requiring use
of seatbelts is not admissible as evidence in any civil proceeding.  23 V.S.A.
§ 1259(c). 
 


[3]
 Although we held in Grazulis that defendants had not preserved their
argument, we discussed Smith.  We described it as holding that the
comparative negligence statute applied even though plaintiff’s negligence “went
only to the extent of his injury and not to the cause of the accident.”  Grazulis,
149 Vt. at 373, 543 A.2d at 1325.  It described the mitigation of damages
discussion as holding that “the use of the comparative negligence statute in
such a case is the same as allowing the jury to consider plaintiff’s negligence
in apportioning damages.”  Id. at 374, 543 A.2d at 1326.  
 


[4]
 Either way, plaintiff had the pipes in the building drained before the damage
occurred in the winter of 2009-2010.  If the jury believed the plumber’s
testimony, which was more precise, his actions occurred after plaintiff believed
the water had been turned off.  The plumber could have easily checked on
whether the water was, in fact, off.
 


[5]
 There was no way to determine whether the water was off without entering the
building.  The evidence does not show whether the building was locked.  In any
event, no Town worker requested permission to enter the building.
 


[6]
 The only person who testified as to who had entered the cellar was plaintiff’s
damage expert.  Although a photograph he took arguably showed the cellar valve,
he could not identify it as such.  Thus, there was no evidence that there was a
cellar valve in this case.  The plumber testified that curb stops have weeping
holes that open when the valve is closed.  The hole allows water in the line to
the building and from the building to run out.


[7] 
We further note that the Third Restatement adopts a pure comparative
responsibility system—at least with respect to indivisible injuries—that bars
recovery for a plaintiff only when the plaintiff’s percentage of responsibility
reaches one hundred percent, Restatement (Third) of Torts: Apportionment Liab.
§ 7, cmt. a (2000); whereas Vermont has a modified comparative
responsibility system that bars a plaintiff’s recovery when the plaintiff’s
percentage of responsibility exceeds that of the total causal negligence of the
defendants—in other words, greater than fifty percent.  12 V.S.A. § 1036. 
This creates further uncertainty regarding the viability of adopting the
Restatement’s approach in all situations.


[8]
 Although defendant requested an interrogatory on mitigation of damages, the
trial court rejected that request.
 


[9] 
Appellant cites only a standard of review for an appeal from a federal bench
trial on a breach of contract claim, stating that “[w]hether the district court
correctly calculated damages is . . . a question of law
that we review de novo.”  Arch Ins. Co. v. Precision Stone, Inc., 584
F.3d 33, 40 (2d Cir. 2009) (quotation omitted).  Although it is true that we
review a trial court’s statement of the law de novo, there is an additional
relevant consideration here as to whether the spirit of the law is appropriately
manifested in the jury instruction.


[10]
 Although our consideration of this issue is also optional, we address it
because of the possibility that the issue will be raised again in a retrial.


