Murray v. City of Barre

7ermont Superior Court
Filed 05/04/26
Washington nit

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 in Limine; Motion in Limine Omnibus; (Motion: 7; 10)
Filer: Kaveh S. Shahi; Andrew B. Delaney
Filed Date: March 25, 2026; April 22, 2026

The motion is GRANTED IN PART and DENIED IN PART.

The Parties to the present matter have filed multiple motions in limine prior to trial. The
Court will refer to these motions as omnibus motions as Plaintiff's motion contains seven
different issues, and Defendant's contains ten. To the extent possible, the Court has addressed
related or overlapping issues in a single section. The Court has addressed the issues raised by
both parties by numbering the issues as they appear in each party's motion. In this decision, the
Court will not address Plaintiff's three separate motions to exclude the testimony of expert
witnesses, Plaintiff's lack of a seatbelt at the time of the crash, and motion for a jury view of the
scene. The Court will address those motions in a separate decision.

As outlined in more detail below, the Court finds that each party is entitled to some relief
sought but not in others. As a result, the parties' omnibus motions in limine are Granted in Part
and Denied in Part.

Standard of Review

A motion in limine is addressed to specific evidence and evidentiary issues. It is a useful
device to limit evidentiary issues and assist the flow of trial. State v. Dubois, 150 Vt. 600, 602
(1988). They are, however, surgical devices meant for limited precision, rather than broadsides
aimed at the opposing party's case. Id. (quoting the lowa Supreme Court's observation that such
motions are to be used as rifles and not shotguns). Such motions are directed to the broad
discretion of the trial court, which must look to whether such evidence could, within the
conceivable circumstances of the upcoming trial, be admissible. Id. A motion in limine is often
directed toward excluding evidence, but it can be used to confirm the admissibility of evidence.
See , e.g., State v. Menize, 2023 VT 48, q 6.

To the extent that the Court denies a motion in limine, it is a preliminary ruling and does
not mean that the evidence is admissible. State v. Koveos, 169 Vt. 62, 69 (1999). Regardless of
of a denial to exclude or a grant of a motion to allow, the parties still have the obligation to lay
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the foundation for any evidentiary offer and to seek its admission at trial. In this respect, the
motion in limine serves to both short-circuit the objection process and to allow the parties
slightly more time to articulate the reasons for and against admission with the ability to cite case
law and construct argument.
Legal Analysis
1. Plaintiff’s First Issue: Use of the term “Vulnerable User”
Plaintiff’s first issue within their omnibus motion in limine seeks to exclude use of the
term “vulnerable user” as that term is defined under 23 V.S.A. § 4(81) during the trial.
It is not disputed that Defendant, as a municipal employee operating a plow truck,
generally qualifies as a “vulnerable user” under Section 4(81). 23 V.S.A. § 4(81) (defining a
vulnerable user to include “an operator of highway building, repair, or maintenance equipment or
of agricultural equipment”). The problem lies in what meaning attaches to this status. There are
certain provisions under title 23 that apply to “vulnerable users,” and in some of these sections,
drivers are required to take certain additional precautions when dealing with these users on the
roadway. See 23 V.S.A. §§ 1033, 1035, 1039, and 1049. Particularly relevant to the present
case, Section 1033(b) requires drivers passing or approaching “vulnerable users” to “exercise
due care.” 23 V.S.A. § 1033(b). This includes slowing down and increasing the clearance
distance to at least 4 feet with the “vulnerable user” to pass. Id.
In this case, however, the key standards do not necessarily involve the provisions
regarding “vulnerable users.” First there is the standard that applies to Defendant under 23
V.S.A. § 1113. This provision creates a standard for any motor vehicle backing into traffic from
a private driveway. This statute does not exempt “vulnerable users” or create a different
standard for vulnerable users who are backing out of driveway. Therefore, whether Defendant
was or was not a “vulnerable user,” his obligations under Section 1113 would have been the
same. This does not appear to be contested.
The question really lies with whether Plaintiff was obligated to treat Defendant as a
“vulnerable user.” In this respect, the Court does not understand there to be any limitations on
Section 4(81)’s definition that would only make the plow truck into a “vulnerable user” if it was
actually plowing at the time of the accident. There appears to be no dispute that Defendant was
turning around because he had finished a portion of his plowing duties and was circling back to
continue the plowing. The fact that he was turning and not plowing at the time of the accident
does not take him out of the vulnerable user category. The same vulnerabilities are still
present—a large, unwieldy vehicle with limited speed, visibility, and maneuverability.
Moreover, 23 V.S.A. § 1033(b)’s language covers both passing and approaching “vulnerable
users.” Given that the requirements of Section 1033(b) are to slow down and give 4 feet of
space, the Court understands that this would reasonably extend to both situations where a car was

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passing a plow truck and approaching a plow truck—whether the truck was plowing, turning,
stopping, or otherwise. For this reason, the Court does not agree with Plaintiff’s contention that
the plow truck would not qualify as a “vulnerable user” simply because it was not plowing at the
moment of the crash.
To the extent that there may be some potential for confusion at the end of the evidence,
the Court’s instructions will lay out the separate duties for each of the parties and clarify, if
necessary, what the term “vulnerable user” means and its limited application.
For these reasons, Plaintiff’s first argument regarding vulnerable users is Denied.
2. Plaintiff’s Second Issue: Special Status for Defendant Plow Truck Driver
Plaintiff’s second argument concerns Defendant’s status as a plow truck driver and
whether Defendant is entitled to a special status in backing out. Defendant does not seek special
status or immunity for backing out of the driveway. Therefore, the Court will apply 23 V.S.A. §
1113 without modification. To this extent, Plaintiff’s argument is not contested, and it is
Granted.
3. Plaintiff’s Third Issue: Defendant’s Expert’s Testimony Regarding Glare and Defensive
Driving Steps
Plaintiff’s third argument in her motion in limine looks to restrain the Defense’s ability to
raise a comparative negligence claim. Specifically, Plaintiff seeks to limit Defendant’s expert’s
expected testimony regarding whether Plaintiff should have pulled over when the glare became
intense just prior to the accident. Plaintiff also seeks to limit testimony about glare to Defendant.
This motion is Denied. The issue of glare is an equal opportunity issue as it was a
condition for both operators, and the jury is entitled to hear testimony regarding how it affected
both drivers, and how each driver coped with the situation. As to the expert’s opinion, Plaintiff’s
point that there is no statutory duty to pull over when confronted with glare is fair, but this point
is really a cross-examination issue not an admissibility issue. If the Defendant’s expert is
qualified to opine on the reasonable standards of care, he can offer his opinion about what is
reasonable when operating in certain conditions for the jury’s determination. See Williamson v.
Clark, 103 Vt. 288 (1931) (jury can determine whether an automobile was travelling at a safe
rate of speed and applied its brakes in a reasonable manner). While it is fair game for Plaintiff to
cross-examine the expert and note that pulling over is not required under Vermont law, the
expert’s opinion, depending on the foundation laid, is potentially a permissible statement of what
a reasonable motorist should do in the case of glare.

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4. Plaintiff’s Fourth Issue and Defendant’s First Issue: Admission of Accident Scene Police
Report
Plaintiff’s fourth argument concerns the investigating officer’s police report. Defendant
has stated that it does not intend to offer the report, but it may use the report to refresh the
officer’s recollection. In light of Defendant’s response, this issue is somewhat premature, but the
Court will Grant the motion in Part at this time but only to the extent that the report or some
part of it is sought to be admitted without a witness. V.R.e. 803(8)(B)(i).
Similarly, Defendant’s first argument in its own omnibus motion in limine seeks a ruling
on the admissibility of certain parts of the police report. As Defendant concede police reports
are deemed hearsay under V.R.E. 803(8)(B)(i) and may not be admitted absent the testimony of
the declarant. Defendant’s cites an unpublished magistrate’s decision from the Southern District
of New York for the proposition that the Defense can extract various portions of the report to use
as admissions by a witness against her interest. Spanierman Gallery, Profit Sharing Plan v.
Merritt, 2003 WL 22909160, at *5–6 (S.D.N.Y. Dec. 9, 2003); compare State v. Austin, 165 Vt.
389, 397 (1996) (noting that “the Vermont Rules of Evidence specifically exclude ‘investigative
reports by police and other law enforcement personnel’ from the public-records exception to the
hearsay rule.”). The problem with Spanierman Gallery is that the decision’s analysis relies on
Federal Rule of Evidence 803(8), which differs from Vermont’s Rules in that it expressly
permits police reports to be entered without testimony from the declarant. Id. In this respect,
Spanierman Gallery is addressing a potential double hearsay problem. The Court is looking to
whether a party’s statements made in a police report where the interviewing officer is not present
to testify can be admitted. Id. The Court concludes that it can because (1) the report is
admissible under F.R.E. 803(6) and (8), and (2) because the out-of-court statements by a party
against their interest are not hearsay and are admissible under F.R.E. 802(d)(2).
In the present case, the situation is different. Under V.R.E. 803(8)(B)(i), the officer’s
report is not admissible unless the officer is present to testify about the report. Defendants
appear to be making the argument that it would like to submit redacted portions of the report
containing only the Plaintiff’s admissions, but even if such statements are admissible, the report
is not, and the Court fails to see how a redacted version cures the fundamental issue of V.R.E.
803(8)(B)(i). For these reasons, the Court Denies Defendant’s motion for admission at this time,
but nothing in this ruling precludes Defendant from calling the officer as a witness.
5. Plaintiff’s Fifth Issue: Private Property Restrictions on City Plow Driving through the
Parking Lot
Plaintiff’s fifth argument concerning the owner of Mattress Land’s restriction on City
plows driving across the property is premature. This appears to be a context specific issue that
may arise depending on the status and nature of the testimony and evidence. As such, the Court
will not preemptively rule on this issue. This portion of the Motion is Denied.
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6. Plaintiff’s Sixth Issue: Mr. Morris’ Prior Driving Record at the Scene of the Incident and
Defendant’s Fourth Issue: Plaintiff’s Expert’s Testimony on Alternative Turn Options
Plaintiff’s sixth argument concerns Mr. Morris’ testimony that he has not had an
accident. This issue can be divided into two separate issues. The first is whether Mr. Morris’
prior driving record is admissible. On this point, Plaintiff is correct that V.R.E. 404 would
prevent evidence regarding Mr. Morris’ general record as such evidence would be improper
propensity evidence. The second question is more complicated.
To begin, evidence of no prior accidents at a particular site are admissible when the
evidence can show substantial similarity of conditions to show “(1) absence of the defect or
condition alleged, (2) the lack of a causal relationship between the injury and the defect or
condition charged, (3) the nonexistence of an unduly dangerous situation, or (4) want of
knowledge (or of grounds to realize) the danger.” Mobbs v. Central Vermont Ry., 155 Vt. 210,
226–27 (1990); see also Bazzano v. Killington Country Vill., Inc., 2003 VT 46, ¶ 3. In effect,
Mobbs and Bazzano stand for the proposition that evidence of prior non-accidents at a site can be
used to rebut or respond to an allegation or evidence that the site was in-and-of itself dangerous.
It cannot be shown to establish that the driver had a propensity to drive safe or even that he drove
safely on the day in question. Instead, it can be used to provide or rebut evidence concerning the
site itself.
In this case, the relevance of Mr. Morris’ prior driving record at the accident site and
history of safely turning around at the spot is likely to be relevant because Plaintiff’s expert has
raised concerns with the spot that Mr. Morris selected for the turn. Plaintiff’s expert has
suggested both alternative spots as well as a Vermont-turn around as potentially safer
alternatives. To the extent that that Court allows such testimony, Mr. Morris’ history of turns at
the spot where the crash occurred is reasonable and relevant under Mobbs and Bazzano to
challenge the causative connection between the crash and the inherent dangers suggested by
Plaintiff’s expert.
At this juncture, however, the Court cannot determine if Plaintiff’s theory will rest on
Plaintiff’s theory of an inherently dangerous spot, or on Mr. Morris’ alleged negligence in failing
to spot Plaintiff when turning out. As such, the Court will not rule on this issue at this time as it
will depend on Plaintiff’s evidence and state of the record at the time that Defendant offers Mr.
Morris’ testimony on this issue. Nevertheless, the Court agrees with Plaintiff that Mr. Morris’
larger driving record is irrelevant and improper propensity evidence. For these reasons,
Plaintiff’s motion on this issue is Granted in part and Denied in part. Mr. Morris may not
testify about his broader driving record, but the Court does not rule on his ability to testify about
his history of driving at the site of the incident and performing the turnaround at this juncture.
Instead, the Court will await the status of the record at the time this information is sought to be
introduced.

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Concurrent to the Court’s analysis on this point, Defendant’s fourth issue in its Motion in
Limine, seeking to exclude Plaintiff’s expert from testifying about alternative spots is Denied.
The parties have had sufficient time to develop their case. Plaintiff’s expert testifying about
other spots in the immediate area where a safer turnaround could have been performed. where
Mr. Morris could have turned around appears to be a reasonable and relevant to the question of
whether Mr. Morris was negligent in the spot selected and the manner in which he conducted the
turn. Most of the issue raised by Defendant go to either cross-examination or rebuttal.1
7. Plaintiff’s Seventh Issue and Defendant’s Third Issue: Medicare Liens.
Plaintiff’s seventh argument, and Defendants third argument in their respective Motions
in Limine concern evidence of a Medicare lien. The Court finds Plaintiff’s position on this issue
more reasonable. Medicare liens are not a relevant part of the jury deliberations, and their
introduction is more likely to cause confusion, than to assist them in their determination. V.R.E.
403, 404. The relevance of these liens is a post-verdict issue that may be addressed through
motion practice. Defendant’s desire to present evidence of these liens to offset any economic
considerations creeping into the award for pain and suffering from the jury is best addressed
through a proposed jury instruction to separate medical expenses from non-economic costs. In
other words, the Court is open to an instruction to the jury that would require them not to
consider or speculate about any medical costs paid or unpaid as part of their deliberations on
non-economic damages.
For these reasons, Plaintiff’s motion to exclude evidence of Medicare liens is Granted,
and Defendant’s Motion to include evidence of the Medicare liens is Denied, except as post-
verdict proceedings are concerned.
8. Defendant’s Second Issue: Medical Records; Sixth Issue: Expert Witness Reports; and
Seventh Issue: History of Prior Crashes
As to Defendant’s second argument in its Motion in Limine, there is no dispute that the
parties will be submitting Plaintiff’s medical records. Given this agreement, this issue is Denied
as Moot.

1 Defendant objected to the use of the term “Vermont Turnaround” to refer to a particular maneuver where a motor

vehicle reverses from a lane of travel into a side road or driveway. While this maneuver may not have originated in
or be unique to Vermont, the nomenclature has been widely used and passed along in Vermont driver’s ed circles.
See, e.g., L.Ober, Promises Kept, Seven Days (Jun. 30, 2010) (“On the morning of his second driving test, David
Faske seemed confident. Having practiced parallel parking, hill starts and the “Vermont turnaround” countless times
in the weeks before the test, he felt sure he would pass.”). While the term is not used in the official manual, both
Vermont turnarounds and hill starts may be readily found in the Vermont Department of Motor Vehicles manual and
are apparently part of any driver’s test. VERMONT DRIVER’S MANUAL 56-57 (2025), available at
https://dmv.vermont.gov/sites/dmv/files/documents/VN-007-Drivers_Manual.pdf.
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There is no dispute about Defendant’s sixth argument as neither side intends to submit
their expert witness reports but will be using the witnesses’ live testimony. Given the lack of the
dispute, this issue is Granted inasmuch as it applies to both parties and all expert reports.
There is also no dispute about Defendant’s seventh argument as Plaintiff does not seek to
introduce evidence of prior crashes. Therefore, this issue is Denied as moot.
9. Defendant’s Fifth Issue: Mr. Smith’s Military Rank and Background
As to Defendant’s fifth argument in its Motion in Limine, the Court will Grant in Part
and Deny in Part. Mr. Smith is not testifying in his capacity as a military officer, therefore
referring to him by his rank would be inappropriate, and the Court directs both parties to use the
common title of “Mr.” As to Mr. Smith’s military record and service, these are relevant parts of
his resume and background, and the Court will permit Plaintiff to ask about his background as
part of introducing his qualifications.
10. Defendant’s Eighth Issue: Evidence of Impairment.
Defendant’s eighth issue concerns the introduction of evidence of Plaintiff’s permanent
impairment. Defendant notes that impairment ratings are tools are generally used by workers’
compensation systems and other evaluative mechanism to determine the injured party’s ability to
return to work. Brown v. W.T. Martin Plumbing & Heating, Inc., 2013 VT 38, ¶¶ 14, 25. But
impairment as a concept is simply “a loss, loss of use, or derangement of any body part, organ
system, or organ function.” Id. at ¶ 15 (quoting the American Medical Association Guides to the
Evaluation of Permanent Impairment, Fifth Edition at 2). Justice Robinson goes on to note for
the majority in Brown that that AMA Guides and evaluations for permanent impairment “were
developed ‘in response to a public need for a standardized, objective approach to evaluating
medical impairments.’” Brown, 2013 VT 38, at ¶ 16 (quoting AMA Guides at 1). The
impairment guides “may be used as evidence to support expert testimony” concerning the nature
and extent of the injury, but they do not carry the force of law. Brown, 2013 VT 38, at ¶ 22.
Impairment ratings are almost exclusively used in the realm of workers’ compensation
law. Id. at ¶ 13 (citing 21 V.S.A. § 648, which lists impairment as the measurement for
permanent partial disability benefits). Other courts that have looked at this issue have blocked
the admission of impairment ratings under Rule 403, in that they offer more prejudice and
confusion, than probative value. Brown v. TG Automotive Sealing Kentucky, LLC, 2024 WL
3656218, at * 4 (W.D. Ky. Aug. 2, 2024) (collecting cases rejecting the use of impairment
ratings to establish damages outside of workers’ compensation). As several courts have noted,
the AMA Guides expressly state that the impairment ratings are “not to be used for direct
financial awards nor as a sole measure of disability.” Porter v. Allen, 611 S.W.3d 290, 295 (Ky.
App. 2020).

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In this case Plaintiff is not seeking economic damages. She is retired, and she has not
lost employment. Instead, her damages are non-economic based primarily on pain and suffering
and loss of enjoyment. To this claim, an impairment determination, holds a limited value.
Plaintiff is not seeking long-term disability for the use of a cane, but she is seeking compensation
for the loss of certain activities and enjoyments that have been taken through the injury. In this
light, the percentage of whole body impairment offers only a small bit of probative evidence, but
it does run the risk that the jury will use the percentage to anchor the more nebulous concepts of
pain and suffering. For these reasons, the Court finds that Plaintiff’s impairment ratings should
be excluded as their use runs beyond the scope that the impairment rating system was intended to
serve, and its limited probative value is outweighed by its prejudicial and confusion impacts on
the jury. For these reasons, Defendant’s motion on this issue is Granted.
11. Defendant’s Ninth Issue: Lay Opinion of Zachary Weiss
Defendant’s ninth argument in its Motion in limine concerns the testimony of Zachary
Weiss. Part of Defendant’s issue concerns the use of Mr. Wiess’ affidavit at trial, this has been
rendered moot by Plaintiff’s averment that she will not seek to admit or use the affidavit at trial.
The remainder of Defendant’s objection concerns certain opinions that Mr. Weiss expressed in
his affidavit and may state at trial. These opinions are largely tied to his sensory impressions
from the accident. Mr. Weiss was travelling behind Ms. Murray, witnessed the accident and was
the first person on the scene. Paragraphs 1 through 11 as well as 15 and 17 express either neutral
background facts or his sense impressions from the accident. The remaining paragraphs, 12–14
and 16, express some lay opinion, but the opinions largely serve as an expression of his
perceptions. For example paragraph 14 says that he believes the plow truck would have hit him
if Ms. Murray’s minivan wasn’t in front of him. This is just another way of saying that the
accident happened quickly, and that he was very close to the events. It does not purport to be an
accident reconstruction or offer a more scientific opinion. In each case, the “opinion” is based
on his perceptions, is more of a rhetorical device to express his perceptions, and does not purport
to be a scientific or technical opinion. Under Rule 701, this testimony is permissible.
Defendant’s objections to the basis of Mr. Weiss’ opinions can be explored in cross-examination.
See Irving v. Agency of Transp., 172 Vt. 527, 529 (2001) (mem.). For these reasons,
Defendant’s Motion in Limine is Denied.
12. Defendant’s Tenth Issue: Truck Repairs, Maintenance, Standards, and Training.
The last argument raised by Defendant concerns the truck repairs, mechanical conditions,
inspection, training, and supervision. Plaintiff has narrowed this issue by stating that she does
not intend to bring forward evidence of the plow truck’s repairs, mechanical condition, or
inspection. Plaintiff states that she may seek evidence of Mr. Morris’ training on the dangers of
backing up and the lack of any city policy on backing-up. This is largely consistent with the
Court’s prior rulings on this issue. For these reasons, the Court Grants Defendant’s motion on

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these issues in Part, but it reserves on the issue of standards and training until trial and further
development by Plaintiff.
ORDER
Based on the Foregoing, Plaintiff’s Motion in Limine and Defendant’s Motion in Limine
are Granted in Part and Denied in Part consistent with this decision.
In furtherance of this decision, the Court makes the following rulings:
A. Plaintiff’s Second Issue: the parties shall not argue or present evidence that Mr. Morris
had a different standard of care in backing out that would deviate from 23 V.S.A. § 1113.
B. Plaintiff’s Fourth Issue: Defendant may not submit the investigating officer’s police
report to the jury without the Officer’s testimony. V.R.E. 803(8)(B)(i)
C. Plaintiff’s Sixth Issue: Defendant shall not put on evidence on Mr. Morris’ general
driving record.
D. Plaintiff’s Seventh Issue: the parties shall not mention or reference Plaintiff’s Medicare
Liens during the jury trial.
E. Defendant’s Fifth Issue: the parties shall refer to Plaintiff’s expert by his full name, his
first name, or with the title “Mr.”
F. Defendant’s Sixth Issue: No party shall submit their expert’s report in lieu of or in
addition to the expert witness’ oral testimony.
G. Defendant’s Eighth Issue: Plaintiff may not elicit or seek testimony on any impairment
determination done for Plaintiff.
H. Defendant’s Tenth Issue, Plaintiff may not elicit or seek to admit evidence concerning
any repairs, inspections, or maintenance performed or not performed on the plow-truck.
Electronically signed on 5/4/2026 2:52 AM pursuant to V.R.E.F. 9(d)

__________________________________
Daniel P. Richardson
Superior Court Judge

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