Olsen v. Frey ( 2018 )

Olsen v. Frey et al., No. 236-4-18 Wncv (Teachout, J., July 31, 2018).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 236-4-18 Wncv
MADALEINE OLSEN
Plaintiff
v.
OFFICER JACOB FREY, TOWN OF BARRE,
and TOWN OF BARRE POLICE DEPARTMENT
Defendants
DECISION
Defendants’ Motion to Dismiss
Ms. Olsen’s Motion to Amend
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. Frey was operating his police vehicle in a negligent manner
and that negligence caused the collision. She also asserts that Defendants the Town and its
police department have vicarious liability for his negligence and that they negligently trained Mr.
Frey in the safe operation of vehicles. The Town has asserted a counterclaim alleging that Ms.
Olsen’s negligence caused the collision. Mr. Frey and the Town of Barre Police Department
have filed a motion to dismiss arguing that neither is a proper party in this case. Ms. Olsen, in
turn, has sought leave to assert a claim of gross negligence against Mr. Frey personally.
Mr. Frey asserts that he is not a proper party in this case because, as an employee of a
municipality, any claim against him arising out of an act within the scope of his employment,
must be brought against his employer, the Town, and not against him personally. 24 V.S.A. §
901a(b). Ms. Olsen argues that Mr. Frey may be personally liable pursuant to Hudson v. Town of
E. Montpelier, 161 Vt. 168 (1993) and for gross negligence pursuant to 12 V.S.A. § 5602(b).
Accordingly, she seeks to amend the complaint to assert a claim of gross negligence against Mr.
Frey.
In 1993, the Court held that “[i]n the absence of the public duty doctrine or a statute
specifically limiting liability, a municipal employee who commits a tortious act is personally
liable to the injured person, even though the employee is engaged in a governmental function and
the municipality is exempt under the doctrine of sovereign immunity.” Hudson, 161 Vt. at 178–
79. In 2003, the Vermont legislature adopted just such a statute: 24 V.S.A. § 901a. Subsection
901a(b) provides: “When the act or omission of a municipal employee acting within the scope of
employment is alleged to have caused damage to property, injury to persons, or death, the
exclusive right of action shall lie against the municipality that employed the employee at the time
of the act or omission; and no such action may be maintained against the municipal employee or
the estate of the municipal employee.” Based on the allegations of the complaint, there is no
reasonable possibility that Mr. Frey was not acting within the scope of his employment when the
collision occurred. Therefore, by statute, Ms. Olsen’s claim had to be brought against the Town
and could not be brought against Mr. Frey personally.
Ms. Olsen’s proposed amendment to include a claim of gross negligence against Mr. Frey
does not help. Ms. Olsen asserts that 12 V.S.A. § 5602(b) allows a gross negligence claim
against Mr. Frey personally. Subsection 5602(a) provides that claims against State employees
arising out of an act within the scope of employment must be brought against the State and not
against the State employee personally. Subsection 5602(b) provides that the rule of § 5602(a)
does not apply to claims of “gross negligence and willful misconduct.” These provisions are
entirely irrelevant to this case. Mr. Frey was a Town employee, not a State employee. The
Town of Barre is not the State of Vermont. Municipal employees are protected by 24 V.S.A. §
901a(b), and § 901a has no exemption for claims of gross negligence.
Accordingly, Mr. Frey is a not a proper party in this case and Ms. Olsen’s proposed
amendment serves no purpose.
The Town of Barre Police Department asserts that it should be dismissed because, as a
mere department of the Town, it is not a legal entity and thus cannot be sued. The Town already
is a defendant. Thus, the Department’s request to dismiss it as a party essentially is a request by
the Town to recognize that the Department is the Town. Ms. Olsen’s only material response to
this is that she needs discovery. She does not explain what discovery she needs or how it would
help. She also does not suggest that there is any way she could be prejudiced by eliminating the
fiction that the Department is anything other than the Town itself.
A municipal police department is a department within the municipality and is created by
the municipality. 24 V.S.A. § 1931(a). A claim against it is a claim against the municipality
itself. If the Town were not separately named as a defendant, the court could consider not
dismissing the Police Department as it really is a proxy for the Town. In this case, however, the
Town is separately named. The Police Department therefore may be dismissed without
prejudicing Ms. Olsen.
ORDER
For the foregoing reasons, Defendants’ Motion to Dismiss is granted and Ms. Olsen’s
Motion to Amend is denied.
Dated at Montpelier, Vermont this ____ day of July 2018.
_____________________________
Mary Miles Teachout,
Superior Judge
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