Moody v. Montpelier

Termont Superior Court
Filed 04/27/26
Washington Unit

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 22-CV-03818
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org
Georgia Moody v. The City of Montpelier

ENTRY REGARDING MOTION
Title: Motion for Summary Judgment (Motion: 6)
Filer: Brian P. Monaghan
Filed Date: October 01, 2025

The motion is GRANTED.

The present matter comes to the Court on the eve of trial. Plaintiff seeks monetary
damages related to injuries resulting from a fall she suffered in the City of Montpelier. Plainitff
was crossing State Street in a duly marked crosswalk when her foot got caught in a depression in
the pavement causing her to fall and break the ankle. It is not disputed that the depression in the
pavement occurred around a water valve box owned and operated by the City of Montpelier and
embedded in the roadway.

In its motion for summary judgment, the City of Montpelier raised two arguments
concerning the sufficiency of the evidence and the doctrine of municipal immunity. After
careful review of the parties' filings and the record, the Court concludes that Plaintiff has
sufficient evidence of breach of the City's duty to monitor and repair its crosswalks, but the
Court concludes that the key duties involved are exclusive to the City's road department and are
governmental actions, which entitle the City to municipal immunity. Based on this conclusion
that municipal immunity applies to the City's liability, the Court determines, pursuant to
V.R.C.P. 56, that Defendant City of Montpelier is entitled to Summary Judgment in its favor.
Factual Record

For the purpose of summary judgment, the Court finds the following facts to be
!
undisputed.

On October 29, 2021, during daylight hours, Plaintiff Georgia Moody entered the public
crosswalk on State Street in Montpelier, Vermont at the intersection with Taylor Street. From
the record, the Court understands that she was crossing on the east side of Taylor Street, heading
south across State Street. Approximately halfway into the crosswalk, Ms. Moody stepped into a

'
The City has included a claim of comparative negligence in its answer, but for purposes of the present analysis,
this defense and the facts related to it are not material to Defendant's motion and will not be reviewed in this
decision.
1
depression that had formed around a water valve box, embedded in the pavement, and fell. She
was unable to stand up after this fall. She was carried by others to the sidewalk. An ambulance
arrived, and she was taken to the hospital where doctors determined that the fall broke her right
ankle.
Ms. Moody filed the present action on October 28, 2022 alleging negligence against the
City of Montpelier. In her complaint, Ms. Moody alleges that the City “had a duty to the public
in general, and Plaintiff in particular, to keep the crosswalk at Taylor and State Street in a
condition that was reasonably safe for people using that crosswalk.” Pltf. Complaint at ¶ 6.
Plaintiff alleged that the City “breached that duty by causing and/or permitting the
aforementioned crosswalk to become dangerous and hazardous to persons using it, by failing to
adequately maintain and/or repair the crosswalk.” Id. at ¶ 7. Plaintiff alleges that the City
“created” the dangerous and hazardous conditions and knew or should have known that they
existed if they had “exercised reasonable care and due diligence.” Id. at ¶ 10.
As a preliminary matter, the City objects to the admissibility of Plaintiff’s Exhibit 1, a
photograph purported to be an image of the water valve box at the time of Ms. Moody’s fall.
The Court agrees that the photo, by itself, is not self-authenticating, and there is no affidavit in
Plaintiff’s filings that would provide sufficient foundation to consider the photo as a true and
accurate representation of the scene at the time of Ms. Moody’s fall. As such, the Court will not
consider exhibit 1 as part of its review of the record. Gates v. Mack Molding Company, Inc.,
2022 VT 24, ¶¶ 13, 14 (noting that the determination of material facts rests upon admissible
evidence, such as affidavits or other evidentiary material); see also Openaire, Inc. v. L.K. Rossi
Corp., 2007 VT 120, ¶ 14 (affirming trial court’s consideration of an exhibit properly supported
by an affidavit).
Giving all reasonable inferences to the non-moving party, it is disputed whether the City
had notice of the depression in the pavement at the time of Ms. Moody’s fall. The City cites
Director of Public Works Kurt Motyka’s deposition testimony to show that he and his office
were unaware of the defect at the time of the incident and that no one from the public had
reported it. Ms. Moody, however, makes a circumstantial case for constructive knowledge on
the City’s part by pointing to testimony by City employees that: (1) they regularly repaired
similar depressions created in the pavement; (2) they had regularly travelled past this
intersection, multiple times before Ms. Moody’s fall; (3) the City had conducted a careful review
of the area in preparation for both the annual Governor’s Corporate Cup race the prior May and
the City’s 4th of July parade; and (4) the City had conducted street painting of the crosswalk in
August.2 To this, Plaintiff ties expert opinion testimony that the depression most likely arose

2 These last two facts are included to show that the City conducted some type of systematic review of the area or

performed such work that they should have known that the depression existed. The Court recognizes that the City
will likely point to these facts as well to demonstrate that any defect at the site was not obvious and apparent at that
2
during the freezing and thawing of the street over the prior winter. From these facts, Plaintiff
urges the Court to draw an inference that City employees had constructive knowledge of the
crosswalk’s condition, which, in turn, should be attributable to the City.3
Plaintiff also contends there is an issue of material fact as to who would have been
responsible for repairing the defect in the crosswalk.4 The record, while complicated, is not in
reasonable dispute. The depositions of the City employees indicate that the water valve box,
itself, was the responsibility of the water department, and repairing or re-seating it was that
department’s responsibility. It was the road department’s responsibility to do emergency
patching and repairs, which might include paving over the box to create a level surface until the
water department could come out and perform the larger repairs. As City employee, Dan Perry,
described in his deposition:
Q. Would this [depression around a water valve box] be the type of thing that the
Street Department would repair?
A. In an emergency circumstance, yes, but, generally, it would be referred to the
Water Division.
Q. Okay. So, if you had seen this condition, you would have done what?
ATTORNEY MONAGHAN: Objection.
A. We would have filled it in, took it as a trip hazard.
Q. Okay. And how would you have filled it in?
A. On a temporary basis, we’d at least taken away the trip hazard by putting cold
patch over it and compacting it.

time. For purposes of summary judgment, and in light of the City’s arguments, the Court will focus on the
reasonable inferences from these facts that concern Ms. Moody’s arguments.
3 This knowledge is different than a responsibility on the part of the employees or an allegation of direct liability

against the employees. As established in her complaint and confirmed at the April 13, 2026 hearing on the present
motion, Plaintiff is not premising her negligence claim on a duty owed to her by any individual officer or employee
of the City, and none of Plaintiff’s filings invoke either these claims or the provisions of 24 V.S.A. § 901(a) to
distinguish her clams. See Hudson v. Town of East Montpelier, 161 Vt. 168, 175–76 (1993) (discussing the
distinction in public employee liability to the public at large from general municipal liability). Plaintiff’s single
negligence claim in her complaint only lies against the municipal corporation for its alleged failure to maintain
and/or repair. As such, the Court’s analysis of both the factual and legal issues in Defendant’s motion will focus
only on the issue of municipal liability and the doctrine of municipal sovereign immunity. Compare Town of South
Burlington v. American Fidelity Co., 125 Vt. 348, 350 (1965) (municipality is immune from suits concerning
“insufficiencies in streets and sidewalks” under municipal sovereign immunity), with Civetti v. Turner, 2020 VT 23,
¶¶ 14, 15 (“We conclude that § 901(a) amounts to a waiver of municipal immunity, essentially placing the Town in
the shoes of its municipal officers, armed with the defenses available to those officers.”).
4 While there is some complication in this review due to the fact that the City’s water and road departments both fall

under the Department of Public works, the deposition testimony of Eric Chase, Dan Perry, Adam Willis, and Kurt
Motyka provide a relatively consistent and clear delineation between the two sub-departments and their respective
areas of responsibility.
3
Q. Okay. And then would you notify the Water Department or Water and Sewer
Department?
A. Yes.
D. Perry Depo. at 7. A little later in the deposition, Mr. Perry goes on to note:
Q. Okay. And what, what did you learn?
A. The water valve box has a sleeve on it, so it’s made to adjust as the ground
freezes and rises and retracts with thawing, and as the cast iron over the years
welds to itself, the box does not adjust with the surface of the road. So, when the
road freezes and rises, the valve box stays down. It tends to deteriorate the
asphalt around the outside because there’s an outer lip to hold it in place which
makes the asphalt ragged and then over time it falls out.
Q. And is that something that you would inspect for or just as it’s seen it would be
dealt with?
A. As it’s seen, it’s dealt with.
Q. Okay. So, would the issues that caused the problem develop over the
wintertime?
A. Once the sleeve fails the problem that occurs with the valve box happens
throughout the winter and into the spring when the thawing happens.
Q. And do you know if the deterioration is exacerbated by precipitation and then
cars driving over it?
A. So, over a series of years when we do asphalt, you know, trying to prolong the
life, sometimes they get crack sealing done around them which would hold it
together and then throughout bad weather, rain and sloshing puddles, though it
could be after the spring it could loosen that all up and make it fall out later than
just the spring or in the winter.
(A discussion was held off the record.)
Q. So, do you ever make repairs to the valve box itself?
A. The Street Department? No.
Q. Have you ever been present when the water/Sewer Department has made
repairs to a valve box area in this condition?
ATTORNEY MONAGHAN: Objection.
A. Yes.
Q. Okay. And what do they do?

4
A. They will start by cutting the asphalt around it and see if it will raise up to
bring it back to grade and then at that point if the valve—the actual sleeve moved,
they would reset it and hot mix around it so you have a flush surface.
Q. Okay. In this photograph does this look like something that can be reset in that
manner?
A. You have to physically dig it out so you have access to the lip around the ring
to see if the sleeve moves. So—
Q. Okay. So, there’s no way to tell from this photograph?
A. Correct, yes.
Id. at 9–11.
In this respect, there is a distinction between (1) how the water valve box is installed and
repaired when it is determined to be improperly seated from (2) the emergency repair work when
the movement of the box against the pavement creates depressions and sinks outside the valve
box. The Court understands, particularly based on Dan Perry’s deposition, but consistent with
that of Plaintiff’s expert witness, George Melchior, that the water department is responsible for
installing and repairing the box, which would include repairs to the surrounding pavement
required as part of such work, but the road department is responsible for spotting issues,
performing emergency repairs, and maintaining the street surfaces in general.
Evidence of Causation
The record in this case does not indicate a single, initial cause of the depression around
the water valve box. There are at least three potential theories outlined in the depositions,
affidavits, and evidence. First, the City, through its interrogatory responses, contends that the
depression was the result of a missing cover to the water valve box, which was replaced as soon
as the City became aware that it was missing.5 Second, there is the testimony of various City
employees that such damage was consistent with normal wear and tear of the system related to
events where the metal of the box, for various reasons, does not move with the ground shifts
during freeze/thaw cycles and disrupts the surrounding pavement. Third, there is the affidavit of

5 Plaintiff attempts in her Statement of Undisputed Facts to create a factual dispute about this theory by contending

that, contrary to the City’s position, Mr. Perry testified that the water valve box had its cover intact. This line of
argument, however, mischaracterizes the City’s interrogatory response and conflates it with Mr. Perry’s
identification of a photo in his deposition. Assuming the photo Mr. Perry saw does portray a water valve box with
an apparent cover, neither in this motion, nor in Mr. Perry’s deposition, has it been identified when the photo was
taken or when the cover was placed on the box. Moreover, the City’s interrogatory response was to the question of
what caused the depression, not whether the picture conveyed the conditions at the time of Ms. Moody’s fall.
5
Plaintiff’s expert, George Melchior, who opines that the pavement failed due to an initial failure
to install a protective concrete support around the metal.6
While this would normally require putting the matter to a finder of fact, there is an
important distinction between the three that the Court is obligated to review. The first two
theories posit a cause of the depression associated with either an accident or normal wear and
tear. If proven, then the sole allegation of negligence would rest with the City’s response to the
depression, its failure to review and to repair. If, however, the third theory is, in fact, considered,
then the negligence analysis shifts to two fronts, a negligent installation causing a hazardous
situation and a subsequent failure to review and repair. For reasons that will be apparent in the
immunity analysis below, the Court must examine this theory of causation to determine if the
negligence lies in a failure to inspect and repair, or in the installation of the valve box in the first
place.
Looking at Mr. Melchior’s theory, it does not present any evidence, beyond a conclusory
statement, linking the failure of this water valve box to any specific events or analysis. Starting
with his description, Mr. Melchior’s total testimony regarding this theory is limited to the
following two sentences out of his 18-paragraph affidavit:
5. These [factors] include the construction of the water valve and valve box
cover, the placement of the water valve and valve box cover, and the failure to
timely inspect it for leaks or anticipate and effectuate its replacement before it
leaked.
6. More specifically, any remote operating valve box and/or similar structure
placed in a high vehicle traffic area must be adequately supported to resolve
cyclical vehicle loading, which is typically done by putting a concrete structure
around the steel valve body.

Melchior Aff. at 2. This disclosure is the nearly the exact same language as Plaintiff uses in her
Expert Disclosure as well as paragraph 41 of Plaintiff’s 42-paragraph Statement of Undisputed
Material Facts, which are the only other areas of the record where any negligent installation is
mentioned.
There are several problems with analyzing Mr. Melchior’s opinion regarding negligent
installation for the purpose of summary judgment. Melchior’s statement does not provide a basis
for the specific installation standard. Melchior opines that a valve box in a high vehicle traffic
area must have a concrete structure around it, but it is not clear if this is a professional standard
or a subjective one. It is also not clear how this standard should be applied. Melchior’s affidavit
does not explain how the concrete support would have changed the outcome in the present case.

6 Mr. Melchior’s broader opinion is that the accident had a number of causes, primarily the City’s failure to spot and

repair the depression. In this respect, the Court understands Mr. Melchior’s analysis to encompass both the initial
depression formation as well as the City’s subsequent failure to spot and repair the depression.
6
In this respect, it is unclear what part of the valve box failed or what caused the pavement around
the valve box to fail. Melchior’s opinion offers neither facts nor analysis on this point as to how
a concrete support would have prevented the pavement depression from occurring in this
particular case. Third, Melchior’s opinion does not indicate when or how concrete supports
should have been installed. Is it the standard of reasonable care that all such valve boxes in the
City or any other high traffic areas should be replaced? If they are not replaced, is it Mr.
Melchior’s opinion that the City is per se negligent anytime there is a valve box issue?
These problems highlight the primary issue with Mr. Melchior’s negligent installation
opinion. It is conclusory and lacks sufficient factual support or any explanation apart from a
cursory determination of fault. As the Vermont Supreme Court has noted: “If an expert presents
‘nothing but conclusions—no facts, no hint of an inferential process, no discussion of hypotheses
considered and rejected, such testimony will be insufficient to defeat a motion for summary
judgment.’” Morais v. Yee, 162 Vt. 366, 371–72 (1994) (quoting Hayes v. Douglas Dynamics,
Inc., 8 F.3d 88, 92 (1st Cir. 1993) (internal citations omitted); see also Cobb v. Gibson, 2002 WL
34422469, at *2 (June 1, 2022) (unpub. mem.). In this respect, the only reasonable read of Mr.
Melchior’s opinion is as a statement of general resiliency for water valve boxes to wear and tear.
In this case, Mr. Melchior does not suggest that the additional installation provisions would have
prevented such issues altogether, or that it would have prevented the specific depression, which
predicated Plaintiff’s fall. This is because he does not point to places in the record that would
provide the necessary details that would link his general point (valve boxes with concrete
supports last longer than those without) with the specifics of the present case. Therefore, to use
Mr. Melchior’s opinion to graft some type of negligent installation claim onto Plaintiff’s failure
to repair and maintain claim would require, based on the present record, a jury to engage in
speculation. Caldwell v. Champlain College, Inc., 2025 VT 17, ¶ 7 (citing Boyd v. State, 2022
VT 12, ¶ 19). This is impermissible, and the Court will not read Plaintiff’s filings to create a
theory of negligent installation where one does not appear.
The evidence in the record indicates that the pavement around this box deteriorated,
creating a depression around the box. It is disputed as to when the depression began. Plaintiff
claims early spring. The City contends, later. It is not known when the water valve box was
installed or was last repaired before Ms. Moody’s incident.7 It is also disputed what specifically
about the water box caused the depression. Nevertheless, the evidence is sufficient to show that
the water valve box belonged to the City, and that the City had the sole responsibility to monitor
and repair the street if there was a problem with the valve box. Going any further than this,
however, is simply unsupported, and it is insufficient as a matter of law to support any claim
beyond the negligence claims arising from the duty to inspect and repair.
Legal Analysis

7 Separate and apart from the depression that formed sometime in 2021 before Ms. Moody’s October fall.

7
Sufficiency of the Evidence for Breach
Defendant’s first argument is that the evidence is insufficient to establish the element of
breach in Plaintiff’s claim. In making this argument, the City recognizes that it has a general
obligation “to use reasonable diligence to maintain its roads in a reasonably safe condition for
the uses for which they were established.” Lane v. State, 174 Vt. 219, 227 (2002). Further the
crosswalk is part of the roadway to which this obligation extends. 23 V.S.A. § 4(7)(A) (defining
crosswalk as part of the roadway). Plaintiff can also point to admissions by City personnel who
agree that if the City had been aware of the depression, it would have sought to repair it in short
order. For the purpose of the present motion, the City also does not contest that Ms. Moody was
injured and that the injury resulted from her foot falling into the depression around the water
valve box in the crosswalk. The City’s first argument for summary judgment focuses on the
issue of breach and the amount of notice that the City had of the situation. The City correctly
notes that the duty to repair is not triggered until the City has either actual or constructive notice
of the issue and a reasonable time to repair it. McCormack v. State, 150 Vt. 443, 445–46 (1988).
Based on the record before the Court, there is no evidence that the City had actual
knowledge of the defect in the crosswalk. While Plaintiff suggests that the City employees who
travelled over or inspected the roadway knew of the defect, there is simply no proof that they
did. Nor does Plaintiff offer evidence that anyone reported this defect to the City prior to Ms.
Moody’s fall. The fact that the City travelled across and conducted reviews and painting activity
over the roadway where the defect lay does not, in and of itself, indicate actual knowledge.
Rather than actual knowledge, Plaintiff’s evidence, with all reasonable inferences drawn
in her favor, builds a circumstantial case that the City had constructive knowledge of the defect
based on the likely length of time the defect existed and the City’s work in the area. To this
extent, the evidence that Plaintiff can offer, based on the record before the Court, is that the
defect in the road was related to temperature fluctuations in the road that pushed the pavement
away from the fixed position of the water valve box. This is supported by the depositions of Dan
Perry, an employee of the City, and George Melchior, Plaintiff’s expert in the more expansive
portions of his affidavit. While the City has disputed some of these facts, the evidence is
sufficient to create a potential timeline for the defect that begins no later than the spring of 2021.
Given that Ms. Moody’s fall occurred in October, she contends that this defect, which lay
on the surface of the road in the crosswalk had existed for several months. If a jury accepted this
testimony as credible, it would mean that the depression around the water valve box had laid on
the surface of the roadway in an open and apparent manner for a sufficiently lengthy amount of
time that it would be reasonable to find that the City should have known about its condition.
The Court will also take judicial notice that State Street is a major thoroughfare in the
City of Montpelier. The crosswalk where the incident occurred is at the intersection where the
State’s Pavillion Office Building sits (which houses the Attorney General’s Offices and the
8
Governor’s offices) and lies within a few hundred feet of the rest of the capitol complex.
Additionally, Plaintiff can point to several work orders where City employees and contractors,
working at the City’s direction, scrutinized the roadway in the months prior to Ms. Moody’s fall,
including the months of May, July, and August. Each of these reviews should have discovered
the defect, and as the City admits, started the process to address and repair it. While the
testimony of the City may ultimately be that no defects were found at that time, this testimony is
not before the Court, and even if it was, it must be weighed by the finders of fact in comparison
to the likely testimony described above, and inferences drawn from it.8
For the purposes of the present motion, the Court must draw all reasonable inferences
from the record in favor of the non-moving party, Ms. Moody. Powers v. Hayes, 172 Vt. 535,
536 (2001). In this case, Plaintiff has made a circumstantial case that the depression was created
no later than the spring of 2021 and that the City, because of the depression’s location and the
City’s review, should have discovered it. If a jury finds these facts, then Plaintiff can look to the
testimony of City’s Public Works Director that the City should have quickly filled in the hole in
such a high traffic area as sufficient evidence that the City breached its duty to repair the
roadway within a reasonable period of time based on its constructive knowledge. Therefore, the
City’s Motion for summary judgment on the sufficiency of evidence concerning the breach issue
is Denied.
Municipal Immunity
Defendant’s second argument focuses on the issue of municipal immunity. The doctrine
of municipal immunity has a long and convoluted history. Unlike the more straightforward Tort
Claim analysis that parties pursue when a claim is made against the State,9 municipal immunity
is a creature of the common law, and in Vermont carries a unique interpretation of the classic
governmental/proprietary distinction. Hillerby v. Town of Colchester, 167 Vt. 270, 272–73
(1997); see also Belter v. City of Burlington, 2025 VT 35, ¶ 24. The distinction that these cases
draw are between governmental functions that benefit the general public (roads, sidewalks and
other generally available public services) and proprietary functions that benefit a limited group
of people or just the residents of the municipality. Belter, 2025 VT 35, at ¶ 24.
This doctrine has been criticized by the Vermont Supreme Court, but it has not been
abandoned or altered. Hillerby, 167 Vt. at 276 (“Our refusal to abolish the governmental/
proprietary distinction should not be read as an endorsement of that distinction.”); see also id. at
276–94 (dissenting opinions from Justice Dooley and Justice Johnson advocating for the

8 The Court will note that there is no evidence that the defect was addressed by a patch or other remedy that failed.

The City’s position is simply that it did not know the defect was there, which in the absence of any other evidence,
provides the lane for Plaintiff’s circumstantial case to pass through to the fact-finder.
9 See, e.g., Sutton v. Vermont Regional Center, 2019 VT 71A, ¶¶ 22, 35–43, 69, 72 (discussing the Vermont Tort

Claims Act and its partial waiver of sovereign immunity for non-discretionary actions across a variety of negligence
and fraud claims).
9
abandonment or modification of the governmental/proprietary distinction); Civetti, 2020 VT 23,
at ¶11 (“While we will not uncritically perpetuate common-law precedent for its own sake, we
continue to believe that the Legislature is best suited to balance the competing considerations at
play in reevaluating municipal immunity”); Lorman v. City of Rutland, 2018 VT 64, ¶¶ 10, (“It
remains true, however, as we indicated in Hillerby, 167 Vt. at 276, 706 A.2d at 449, that it would
be beneficial for the Legislature to act in this area.”); Morway v. Trombly, 173 Vt. 266, 270
(2001) (“While acknowledging the need to reform the rules of municipal liability in Vermont,
this Court has determined that the Legislature is better suited, because of its fact-finding and
problem-solving process, ‘to fashion a more reasonable and workable doctrine.’” (citing
Hillerby)).
The reason for the Court’s qualms with municipal immunity could not be more plainly
shown than the present case. To the extent that the defect in the crosswalk is a road department
issue, and as a result, an issue involving the building and maintaining of streets, then the matter
is a governmental function, and no liability to the City may attach. Civetti, 2020 VT 35, at ¶ 9
(citing Graham v. Town of Duxbury, 173 Vt. 498, 499 (2001) (mem.)). Yet, to the extent that the
defect is a water department issue, it is a proprietary function that is not entitled to municipal
immunity and to which liability may attach. Boguski v. City of Winooski, 109 Vt. 380, 389
(1936). Given the overlapping roles that each of these departments play in managing the City’s
roads and infrastructure, the analysis comes down to almost arbitrary distinctions and scholastic
hair-splitting between two departments that are both housed in the City’s Department of Public
Works.
As discussed above, Plaintiff has, in responding to the present motion, put forward two
primary theories of liability: (1) that the water valve box was improperly installed and that
because of this improper installation, the depression resulted; and (2) that the City failed to
monitor and maintain the crosswalk. The record indicates that the second theory falls entirely
within the road department’s ambit. The road department is charged with monitoring road
surfaces, doing emergency repairs, and addressing any immediate tripping hazards. To the
extent that Plaintiff’s case is premised on a breach of the duty to monitor and repair, the record
indicates that this responsibility was that of the road department, which acted as the day-to-day
eyes and ears of the public works department and would have performed any initial repairs to
make the surface safe, until more permanent repairs could be done.
As to the first theory, there is simply insufficient evidence for the Court to split this
responsibility into a separate cause of action or theory of negligence. Plaintiff’s expert has
offered some conclusory statements, but these statements are not enough to show that the City
had a duty to install a specific water valve box system, or that the water department was
negligent for not doing so. Apart from the analysis above, there is a pleading problem with
Plaintiff’s theory. Her complaint cites to “maintenance and/or repair” not installation. Plaintiff
cannot show when the water valve box was installed and what standards were applicable at the
10
time of installation. Plaintiff also cannot show if issues with the box caused the depression. On
this point, Mr. Melchior’s affidavit presumes that the water valve box had failed and that the
failure was due to a lack of adequate support, which was necessary because of its high traffic
location. These conclusions beg the question of what caused the depression in the first place,
and nothing in the record connects the general issues with water valve boxes to this specific
water valve box and the surrounding depression. In fact, there is no evidence that the water box
itself failed.10 This is a problem for Plaintiff who must establish the proximate cause in this case.
Collins v. Thomas, 2007 Vt. 92, ¶ 8 (“Although proximate cause ordinarily is characterized as a
jury issue, it may be decided as a matter of law ... where all reasonable minds would construe the
facts and circumstances one way.” (quotations omitted)). It is also important because immunity
rests upon the distinction between the realms of water and streets. The record indicates that the
water department only became involved if the underlying water system feature was broken or
began to fail. In all other cases, it was a street issue for the road department to resolve. In fact,
even if it was a failure of the water system, it was first a road issue to provide temporary repair.
For these reasons, the Court finds that the duty to monitor and repair was first and
foremost a road issue. Therefore, the City’s failure to monitor the roadway surface and perform
repairs falls within the road department’s primary responsibility to monitor and repair streets and
sidewalks. Such actions or inactions are protected by municipal immunity, which applies in the
present case. Civetti, 2020 VT 35, at ¶ 9. Based on this application of municipal immunity,
Plaintiff’s sole claim of negligence must be dismissed as the City’s invocation of immunity is
appropriate in the present case.
ORDER
Based on the foregoing, Defendant City of Montpelier’s motion for summary judgment
based on municipal immunity is Granted. The present matter is Dismissed pursuant to V.R.C.P.
56 and the doctrine of municipal sovereign immunity. The jury trial in this matter is cancelled.
Electronically signed on 4/27/2026 10:13 AM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel P. Richardson
Superior Court Judge

10 Except for the immunity issue that divides the liability into governmental and proprietary fields, this distinction

would be meaningless because Plaintiff has, as noted in the prior section, a case for breach based on a failure to
detect and repair.
11