Shatrau v. Menard ( 2020 )

Shatrau v. Menard, No. 400-7-19 Wncv (Tomasi, J., Mar. 16, 2020).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
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STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 400-7-19 Wncv
Eric Shatrau,
Plaintiff
v.
Lisa Menard,
Al Cormier,
Norah Quinn,
Jeff Corrow,
Mark Valley,
Clyde Bradley,
Centurion of Vermont LLC,
Defendants
Opinion and Order on Defendant Lisa Menard’s Motion to Dismiss
Plaintiff is a prisoner under supervision of the Vermont Department of
Corrections (DOC). He brings this action asserting tort claims arising out of an
injury he sustained while on a DOC community work crew. Plaintiff has effected
service solely on Defendant Lisa Menard, the former Commissioner of DOC, in her
official capacity. Menard has moved to dismiss arguing that this case is barred by
the provisions of Vermont’s injured offender compensation program. No opposition
has been filed. The Court makes the following determinations.
The Legislature passed a law to afford a certain remedy for prisoners
suffering injuries “arising out of and in the course of work, industry, or an
employment program, at a correctional facility, or any community service or public
works activity or vocational training directed by the department of corrections.” 28
V.S.A. § 760(a). The Legislature further provided that the remedies set out in
Section 760 should be analogous to those given under the Vermont workers
compensation laws. Id. As with workers compensation laws, the remedy provided
is exclusive. Section 760(b) expressly states:
The rights and remedies provided by this section and the rules adopted
under authority of this section to an offender on account of a personal
injury for which he or she is entitled to compensation under this
section shall exclude all other rights and remedies of the offender, the
offender's personal representation, dependents or next of kin, at
common law, or otherwise on account of such injury.
Id. (emphasis added).1 Lastly, the Legislature charged DOC with
promulgating rules to effectuate the provisions of the law and create the
inmate compensation program.
In short, if a prisoner sustains an injury that falls under the terms of a
compensation program created under Section 760(a), by force of Section 760(b), the
that program is his or her exclusive remedy.
Here, the injury alleged in the Complaint plainly occurred during an activity
described in Section 760(a). It is unclear, though, whether the DOC has
promulgated the rules needed to create an inmate compensation program. Menard
has attached to her motion two policies that appear to create the type of program
envisioned by Section 760. The attached copies are unsigned and undated, however.
The Court can take notice of public documents under certain circumstances, but it
declines to do so where the records provided fail to establish that the documents are
genuine, have been promulgated, or are in force.
1
The Court agrees with Menard that the Vermont Tort Claims Act is inapplicable to
this case if Section 760 applies. That is due to the exclusive remedy provision of
Section 760, however, not the retention of sovereign immunity set out in 12 V.S.A.
5601(e)(7). That is a separate provision that would depend upon whether the State
has purchased insurance. Id. § 5601(f). Section 760 is a freestanding provision that
affords its own exclusive remedy for claims that fall within its ambit.
Accordingly, the Court will permit Menard 21 days to provide additional
evidence as to the attachments before ruling on the motion to dismiss.2
Electronically signed on March 13, 2020 at 10:31 AM pursuant to V.R.E.F.
7(d).
________________________
Timothy B. Tomasi
Superior Court Judge
2 Menard also argues that she should be immune from suit based on her absolute
immunity. The Court agrees that, as the highest ranking official at the DOC, she
is immune from suit in her individual capacity for tort claims the arise from
matters within the scope of her authority. See Curran v. Marcille, 152 Vt. 247, 248-
49 (1989). Plaintiff makes no claim that she acted beyond her authority in this
case. Here, however, service on Menard was effected only in her official capacity.
As a result, the Court has no occasion to consider the individual capacity claim at
this time.