Murray v. City of Barre

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 21-CV-03712
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org
Margaret Murray v. City of Barre

ENTRY REGARDING MOTION
Title: Motion to Amend Complaint (Motion: 6)
Filer: Andrew B. Delaney
Filed Date: October 27, 2025

The motion is DENIED.

The present motion concerns Plaintiff Margaret Murray’s request to amend her complaint
after the close of discovery to add a count of negligent supervision against the Defendant City of
Barre. The City opposes this motion to amend. For the reasons articulated below, particularly
the issues of futility and prejudice of the amendment, the motion is Denied.

The present matter involves an automobile accident. Plaintiff alleges that a City of Barre
snowplow truck backed into her vehicle and caused damage and injuries. Plaintiff has alleged
negligence on the part of the driver and has sued the City of Barre as required under 24 V.S.A. §
901a.1

The City has defended against this claim, but it has admitted that the operator was acting
under the City’s authority and at the City’s direction. As such, the City has effectively conceded
the issue of respondeat superior in this case. See Brueckner v. Norwich University, 169 Vt. 118,
122–23 (1999) (discussing the doctrine of respondeat superior).

Plaintiff seeks to amend her complaint to add a claim of negligent supervision directly
against the City of Barre. Plaintiff in her amended complaint contends that the City (1) did not
adopt a written policies, protocols, or formal training for drivers on safe turnarounds, highway
backing, or minimizing dangerous maneuvers; (2) failed to provide supervision to its drivers; and

1 Under Section 901a, injury or damages to person or property resulting from the acts or omissions of a municipal

employee “shall lie against the municipality . . .” 24 V.S.A. § 901a(b). Such actions must be filed against the
municipality, which waives any defenses other than those that would be available to the employee. Id. at § 901a(c).
This statute provides both indemnification and duty to defend for the employee. Id. § 901a(d).
(3) failed to do so despite knowledge of these routines and safer alternatives. (Pltf. Mot. to
Amend at 4.)

A claim for negligent supervision falls under the category of direct liability. Brueckner,
169 Vt. at 126 (identifying negligent supervision as a form of direct liability). The elements of
this tort require a plaintiff to prove that an employer held some supervisory role over an
employee; that the employer breached its duty to properly control or supervise the employee; and
that as a result of this breach, the employee committed a negligent or wrongful act in the course
of their employment that resulted in an injury or damage. Haverly v. Kaytec, Inc., 169 Vt. 350,
356–57 (1999) (listing the elements of a negligent supervision claim). The failure to control
must be the proximate cause of the employee’s actions, but plaintiff must still show that the
employee committed a negligent or wrongful action. Id. In other words, separate and apart from
the breach of any duty to supervise or control, plaintiff must still establish that the employee,
himself or herself, committed a negligent or wrongful act. Haverly, 169 Vt. at 357.

The distinction between vicarious liability and direct liability claims centers entirely on
what a plaintiff must prove to establish an employer’s liability. See Restatement (Second) of
Agency § 213 (1958) (describing direct liability for a principal if it independently fails to
supervise an agent engaged in a dangerous activity). As the Vermont Supreme Court has noted,
direct liability claims carry heightened elements of proof. Bruckner, 169 Vt. at 126 (noting that
a plaintiff must establish employer negligence as well as the underlying employee negligence).

The purpose of vicarious and direct liability is to provide plaintiffs with different avenues
to hold an employer liable when they bear some responsibility for the employee’s tortious
actions. R.A. Mincer, The Viability of Direct Negligence Claims Against Motor Carriers in the
Face of an Admission of Respondeat Superior, 10 Wyo. L. Rev. 229, 232–33 (2010). As one
commentator summarized, these theories of direct liability “are intended to provide an alternate
means of recovery against the master for harm caused by his servant when respondeat superior or
agency theories might not suffice.” Id. at 233; see also S. Howton, Passing the Buck: How
Employers Suppress Evidence and Reduce Liability Through the Admission Rule, 76 Baylor L.
Rev. 659, 665 (2024) (“The difference between vicarious liability and direct liability is that, with
direct liability, a tortfeasor is held liable based on the culpability of its own actions and not
purely the relationship between the parties.”).
What direct and vicarious liability does not distinguish between, in most cases, is what
damages may be sought against the employer. Id. If an employer is liable under a theory of
vicarious liability, the damages that plaintiff may seek are not materially different than what
would be available if plaintiff proved direct liability. Id. This is because a plaintiff seeks
compensatory damages for his or her injuries that have arisen from the employee’s negligence,
and if the actions were within the employee’s scope of employment, then the employer is treated
as a joint tortfeasor, just as they would be treated in a direct liability case. White v. Quechee
Lakes Landowners’ Ass’n, Inc., 170 Vt. 25, 29 (1999) (noting that vicarious liability makes an
employer a joint tortfeasor against whom a whole judgment may be asserted).

Consistent with this thinking, a plurality of states and federal jurisdictions have ruled that
if an employer in a motor vehicle accident concedes that the employee was acting within the
scope of his or her employment, effectively conceding respondeat superior, then plaintiff may
not also bring a claim for negligent supervision. Poplin v. Bestway Express, 286 F. Supp. 2d
1316, 1318 (M.D. Ala. 2003) (collecting cases); McHaffie ex rel. McHaffie v. Bunch, 891
S.W.2d 822, 826 (Mo. 1995); see also 76 Baylor L. Rev. at 683 (noting that 22 jurisdictions have
adopted the rule while 18 have rejected it in some form). This has become known by some
commentators as the Admission Rule. 76 Baylor L. Rev. at 667.

More recently, a number of jurisdictions have begun rejecting any type of blanket
Admission Rule. See, e.g., Ramon v. Nebo Sch. Dist., 493 P.3d 613, 618 (Utah 2021). The
reasoning in these decisions has generally been three-fold. First, any blanket rejection of a direct
liability claim following a respondeat superior admission fails to take into account the fact that
they are two separate claims and that a plaintiff has a right to control his or her own complaint.
Id. Second, a stated purpose for the Admission Rule, to avoid unnecessary and prejudicial
evidence confusing an employer’s liability with the employee’s can be better addressed through
the rules of evidence, particularly 403. Id. at 620. Third, modern comparative negligence
statutes require juries to consider the negligence of all parties to determine liability. Id.

Vermont has neither adopted nor rejected the Respondeat Superior Admission Rule. In
its brief, the City urges this Court to join the plurality of states that have adopted it. The City
argues that this is only sensible given that the issue of liability has been resolved. Plaintiff
opposes the adoption of the Rule for many of the same reasons articulated in Ramon, although it
does not suggest that comparative negligence is an issue in the present case.

In reviewing the case law and reasoning behind the Admission Rule, this Court finds that
the wholesale adoption of this doctrine is not warranted in this case. Instead, the Court finds that
there are specific features of municipal liability, indemnity, and immunity that make the
amendments both futile and prejudicial.

As a starting point, it is important to note that the City’s admission to vicarious liability
in this case is not entirely voluntary. The provisions of 24 V.S.A. § 901a require municipalities
to provide both defense and indemnification for any employee sued for negligence within the
scope of his or her employment. 24 V.S.A. § 901a(d)(1). Under these provisions, the
municipality effectively steps into the shoes of the employee. Civetti v. Turner, 2020 VT 23, ¶¶
14, 15 (interpreting the provisions of Section 901a(c) to constitute a waiver of municipal
immunity). The language of Section 901a(b) goes further and makes an action against the
municipality the “exclusive right of action” for anyone injured or suffering damages as the result
of the negligence of a municipal employee arising from the scope of his or her employment. 24
V.S.A. § 901a(b).

Collectively, these provisions mean that a plaintiff must bring an action solely against the
municipality, and if the actions fit within the scope of his or her employment, then liability
applies, and no action may be brought against the individual employee or their estate. 24 V.S.A.
§ 901a(b).

In the present case, Section 901a means that the City, by conceding that the driver’s
actions were within the scope of his employment, has effectively conceded liability and is
statutorily barred from asserting any defenses against indemnity or respondeat superior that it, as
a municipality, might have raised against Plaintiff outside of Section 901a.2 Therefore, if and

2 By way of comparison, Hudson v. Town of East Montpelier, a pre-Section 901a case, illustrates how such claims

once worked. 161 Vt. 168 (1993). The case involved a claim of negligence following an improper road repair that
caused plaintiff’s car to careen off the road. Id. at 169–70. Plaintiff sued the Town, the town’s two insurance
companies, the road foreman, and the road grader operator. Id. at 170. The Town and the insurance companies
were dismissed after the court ruled that the claims fell outside the terms of the policy, but the road foreman and
grader operator were found individually liable. Id. at 170, 179–80.
when this matter goes to a jury, any verdict in Plaintiff’s favor concerning the driver’s
negligence will be a verdict against the City for which it will be wholly liable.

In this case, liability and responsibility for the verdict is a function of both the City’s
concession and the statute. If the Court were to allow Plaintiff’s amendment, nothing in the
present liability equation would change. The City would remain liable so long as the underlying
negligence of the driver was proven, and it would not be negligent if the opposite was
established. There is also no shift or alteration in the City’s potential responsibility for any
damages. To the extent the underlying negligence is proven, the City is responsible, and that
does not change regardless of whether Plaintiff can or cannot prove a negligent supervision
claim.3

While Plaintiff correctly notes that a negligent supervision claim has separate and
additional elements, the test for futility of amendment under Rule 15 is not whether the two
claims are identical, but whether the amendment would survive a motion to dismiss. Vasseur v.
State, 2021 VT 53, ¶ 7. This in turn rests upon whether a negligent supervision claim is
effectively subsumed by the statutory provisions of Section 901a. See Loso v. Yankee Med., Inc.,
No. 2009–027, 2009 WL 3320269, at *1 (Vt. Oct. 8, 2009) (unpub. mem.) (finding a motion to
amend was properly denied because negligent supervision claim was subsumed once employer
admitted vicarious liability). The Court concludes in this case that such a claim cannot be
sustained for the following reasons.

First, the statutory structure and plain language of Section 901a is intended to eliminate
any distinction between employer and employee in the municipal liability context. Under
Section 901a(b), a municipality is statutorily obligated to defend and indemnify its employee for
any harm resulting from the employee’s negligence arising from his or her employment. 24
V.S.A. § 901a(b). The statute expressly requires the lawsuit to name only the municipality as
defendant, and the statute makes this the sole cause of action available. Id. In this respect, the
legislature has eliminated the need for proving either vicarious or direct liability in municipal

3 As the Vermont Supreme Court notes in Civetti, this is precisely the intent and purpose of 24 V.S.A. § 901a, which

was enacted in response to a case strikingly similar to the present case where a town snowplow driver was found
liable for negligence resulting from his plowing while the municipality was not. Civetti, 2020 VT 23, at ¶ 26 (citing
Morway v. Trombly, 173 Vt. 266 (2001)).
circumstances and has put the onus on the municipality to defend and indemnify all such claims.
It has also stripped the municipality of any municipal immunity or similar defenses. Given this
language, the Court finds that the legislature effectively sought to eliminate the issues of
vicarious and direct liability in this type of litigation and to make the municipality solely and
directly responsible for all negligence committed by its employees, thereby subsuming the two
theories of liability into one action brought directly against the municipality.

In this respect, allowing the subsumed direct liability claim to go forward would also
create the strong potential for confusion and prejudice as the City would effectively be litigating
two different roles. The first being City as named defendant standing in the shoes of driver, and
the second being the City standing as its corporate self. The major distinction between the two
being that the City in the second role would be entitled to present a municipal immunity defense.
Given the requirements of Section 901a, and its provisions that the City be the only named
Defendant, it would be all but impossible to keep these concepts separate.

Second, given the clear line of liability for the employee’s actions and responsibility for
any consequential damages, the theory of negligent supervision can only be seen as an
alternative theory of liability subsumed by the first. As noted above, permitting the amendment
does not change the City’s liability or responsibility. Haverly, 169 Vt. at 357. Certainly, if the
City did not concede that the driver had been acting in the scope of his employment or if there
were portions of the claim that went beyond the driver’s actions, then negligent supervision
might be an appropriate claim. In the present case, however, there is no dispute that the central
issue of liability concerns the driver and that Section 901a renders the City wholly liable and
responsible for any judgment. Under such circumstances, trying to prove this additional source
of responsibility and liability is effectively redundant and should fall away. Additionally, the
Court has inherent discretion to dismiss a duplicative claim in the interest of judicial economy,
and courts routinely do so. See, e.g., Storman v. CA Alta Regl. Ctr., 221CV00380KJMACPS,
2021 WL 847785, at *2 (E.D. Cal. Mar. 5, 2021); DTCC Data Repository (U.S.) LLC v. U.S.
Commodity Futures Trading Commn., 25 F. Supp. 3d 9, 18 (D.D.C. 2014); McGee v. D.C., 646
F. Supp. 2d 115, 121, 2009 WL 2568903 (D.D.C. 2009).

In this respect, it is important to note, that the sole difference between Plaintiff’s Section
901a respondeat superior claim and her proposed negligent supervision claim is that Plaintiff
would have to prove that the City independently acted in a negligent manner in addition to the
driver’s negligence. While this is a different element, its proof would have no effect on the
primary issue of the City’s liability. Therefore, adding this count would not change the outcome
of the present litigation. It might allow Plaintiff to present evidence of the City’s allegedly
negligent internal practices, but as noted above, such a claim would invoke municipal immunity
issues and would not make the City’s ultimate liability more or less likely.

In addition to these case-specific issues demonstrating futility, there is also an issue of
prejudice. Plaintiff’s complaint to date has fallen under Section 901a, which eliminates the issue
of municipal immunity. Discovery is now closed. Amending the complaint to add a claim of
negligent supervision, however, would revive these defenses but would deprive the City of the
ability to conduct discovery consistent with these defenses and the ability to distinguish the
City’s actions in discovery. The prejudice here is substantial because the right to municipal
immunity is neither straightforward, nor easily separated from the driver’s negligence. See
Civetti, 2020 VT 23, at ¶¶ 6–11 (discussing the governmental/proprietary distinction in
municipal immunity). The distinction is not hypothetical as Morway indicates municipalities are
generally immune from lawsuits involving governmental functions, such as snowplowing roads,
and this immunity is separate and distinct from the immunities available to employees. Morway
v. Trombly, 173 Vt. 266, 270–71 (2001).

At this late date, the Court finds that introducing a new theory of liability would
effectively prejudice the City from developing and presenting a record through discovery that
would allow the City to preserve and present this defense and make this distinction.

Finally, the Court finds that the primary reason for Plaintiff’s amendment is to allow it to
fully present evidence of how the City’s allegedly negligent standards informed the driver’s
negligence. This issue appears to be more rhetorical and evidentiary than liability driven. In this
respect, it would make sense to address it under the Rules of Evidence, particularly 402, 403, and
404. The germane issue, in this respect, revolves around identifying those facts which are
relevant to explaining why the accident happened. If the driver was unaware of certain safety
standards and protocols that all drivers should follow, then this evidence is relevant and likely
admissible if relevant to the crash. If Plaintiff wants to put on evidence about whether the City
adopted such standards internally, its admissibility would depend on whether the absence of
these standards correlated to the driver’s negligence. In other words, the City draws no benefit
from distinguishing its actions from the driver’s because the driver’s liability is the City’s under
Section 901a. So the fact that the City adopted, but driver did not follow, a particular safety
standard is not relevant, but the City’s lack of such a safety protocol might be relevant to
establish and show the driver’s lack of knowledge and awareness of the standard.

In this respect, the Court sees no harm to Plaintiff’s ability to raise relevant factual issues
about both the driver’s actions and environment in which he worked for purposes of establishing
negligence, which should in many respects encompass the issues raised in Plaintiff’s brief
without amendment.

For these reasons, the Court finds that the proposed amendment would create issues of
futility and prejudice. Colby v. Umbrella, 2008 VT 20, ¶ 4. As such, the motion to amend at this
time is Denied.

ORDER
Based on the foregoing, the motion to amend is Denied.
Electronically signed on 12/5/2025 2:02 PM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel Richardson
Superior Court Judge