Cameron Crogan v. Pine Bluff Estates

NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal
revision before publication in the Vermont Reports. Readers are requested to notify the Reporter
of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109
State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made
before this opinion goes to press.

2021 VT 42

No. 2020-247

Cameron Crogan Supreme Court

On Appeal from
v. Superior Court, Orleans Unit,
Civil Division

Pine Bluff Estates et al. April Term, 2021

Mary Miles Teachout, J.

Bridget C. Asay of Stris & Maher LLP, Montpelier, and Gregory P. Howe, Law Office of
Gregory P. Howe, Newport, for Plaintiff-Appellant.

Stephen D. Ellis and Pamela L.P. Eaton of Paul Frank + Collins P.C., Burlington, for
Defendant-Appellee Douglas B. Spates, in His Individual Capacity.

Adrienne Shea and Pietro J. Lynn of Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, for
Defendants-Appellees.

PRESENT: Reiber, C.J., Robinson, Eaton, Carroll and Cohen, JJ.

¶ 1. EATON, J. Plaintiff was seriously injured when he rode his motorbike into a

cable strung across a beach access road at the lakeside residential development where he lived with

his family. As a result, his mother filed a negligence action against several entities related to the

development, including the homeowners’ association and a separately formed beach association,

as well as certain individuals in both their individual and representative capacities.1 The civil

1
Plaintiff was fourteen years old at the time of the accident. He was substituted for his
mother as plaintiff in this case when he reached the age of majority.
division granted defendants’ motions for summary judgment primarily on the grounds that, given

the undisputed facts of this case, Vermont’s Recreational Use Statute protected them from liability,

and the individual defendants did not owe plaintiff a duty of care in connection with the accident

that led to this lawsuit. We conclude that the individual defendants were entitled to summary

judgment, but we reverse the trial court’s determination that the Recreational Use Statute is

applicable in this case. Accordingly, we remand the matter for further proceedings concerning

plaintiff’s claims against the non-individual defendants.

¶ 2. Applying the same standard as the trial court in reviewing defendants’ motions for

summary judgment, we must determine whether material facts are in dispute and, if not, whether

the moving party is entitled to judgment as a matter of law. See Nolan v. Fishman, 2019 VT 63,

¶ 11, 211 Vt. 1, 218 A.3d 1034. Issues of statutory interpretation raise questions of law that we

review without deference to the trial court. Id. In construing a statute, our paramount goal is to

discern the Legislature’s intent, first by examining the plain meaning of the statute and, if

necessary, “by considering the entire statute, including its subject matter, effects and

consequences, as well as the reason and spirit of the law.” Athens Sch. Dist. v. Vt. State Bd. of

Educ., 2020 VT 52, ¶ 19, ___ Vt. ___, 237 A.3d 671 (quotation omitted).

I. Facts and Procedural History

¶ 3. The material facts are undisputed. At the time of the accident, plaintiff’s family

owned a home and resided in Pine Bluff Estates, a lakeside residential development adjoining Lake

Memphremagog in Newport, Vermont. The development was created by a partnership, defendant

Pine Bluff Estates Partnership, which was formed by defendants Douglas Spates, Rosemary

Lalime, and William Boyd Davies in the late 1980s for the purpose of developing land. The still-

active partnership owns ten or so lots of the approximately seventy-five lots created in the Pine

Bluff Estates development.

2
¶ 4. Defendant Pine Bluff Estates Beach Association is a non-profit corporation that

owns the common areas within the development, including the lakeshore beach and the one-lane,

unpaved beach access road on which plaintiff was injured. Spates, Lalime, and Davies do not

personally own property or reside in Pine Bluff Estates, but they remain as president, secretary,

and treasurer, respectively, of the Association and make up its board of directors.

¶ 5. Anyone who owns property in the development is automatically a member of the

Association, which collects an annual assessment from its members for taxes, insurance, and

maintenance of the common areas. Use of the common areas, including the beach and the access

road, is restricted to unit owners and their tenants, guests, invitees, and licensees. All residents are

required to pay the assessment, irrespective of the extent to which they use the common areas. The

Association has the right to suspend or limit any resident’s use of the beach and access road for

failure to observe the rules and regulations concerning the common areas. Residents who are

prohibited from using any element of the common areas are still required to pay the full

assessment.

¶ 6. At some point before 2006, two posts connected by a chain were installed on the

beach access road to keep the general public from accessing the lake and partying on the beach.

Apparently, the posts and chain were erected informally by one or more of the unit owners.

¶ 7. In 2006, the Association created a Beach Committee as part of the process

established for the unit owners to take over the Association and the Partnership that created it. In

2006-2007, there were improvements to the beach access road. Minutes from a 2007 Association

meeting indicate that the Beach Committee was to work out details regarding installing gates or

resetting the posts and chain after completion of some construction work. There was no formal

approval of, or payment for, any action in this regard.

¶ 8. When plaintiff moved into Pine Bluff Estates with his family in 2008, he was aware

that there was a chain that could be pulled across the access road and affixed to posts to block

3
traffic. He and his family often went to the beach using the beach road on which the posts and

chain were located.

¶ 9. On June 3, 2015, plaintiff rode his motorbike up and down the access road several

times. After several trips up and down the road, he saw a vehicle approaching him on the road

from the direction of the beach, at which point he drove away, only to return shortly thereafter.

On his final trip down, he did not see, until the last moment, that someone had strung the chain

across the road and affixed it to the posts. He braked and slid along the ground before striking the

chain across his throat, which caused serious injury.

¶ 10. In June 2018, plaintiff filed a negligence action against, among others, the Pine

Bluff Estates Partnership, the Meadows Edge at Pine Bluff Estates Association, and the Pine Bluff

Estates Beach Association, as well as Spates, Lalime, and Davies, in their individual and

representative capacities. Defendants moved for summary judgment, primarily on the grounds

that they owed no duty of care to plaintiff and that Vermont’s Recreational Use Statute precluded

liability for plaintiff’s injuries. Spates filed a separate motion for summary judgment, contending

that he owed no duty of care to plaintiff.

¶ 11. In an August 2020 decision, following discovery, the trial court granted both

motions for summary judgment. The court construed Vermont’s Recreational Use Statute to

preclude any liability on the part of the corporate defendants, as well as any defendants who owned

property in Pine Bluff Estates. The court further concluded that none of the individual defendants,

including Spates, owed plaintiff a duty of care in connection with the accident in which he was

injured.

¶ 12. On appeal, plaintiff argues that: (1) the Recreational Use Statute does not apply to

private, restricted areas of a residential development that are reserved for the exclusive use of

residents and their guests; and (2) the trial court erred in granting summary judgment to the

individual defendants because the record was sufficient for a jury to find liability.

4
II. The Recreational Use Statute

¶ 13. The Recreational Use Statute, which became law in 1998, was enacted with the

express purpose of

encourag[ing] owners to make their land and water available to the
public for no consideration for recreational uses by clearly
establishing a rule that an owner shall have no greater duty of care
to a person who, without compensation, enters or goes upon the
owner’s land for a recreational use than the owner would have to a
trespasser.

1997, No. 110 (Adj. Sess.), § 1 (emphasis added); 12 V.S.A. § 5791 (emphasis added). Towards

that end, a landowner “shall not be liable for property damage or personal injury sustained by a

person who, without consideration, enters or goes upon the owner’s land for a recreational use

unless the damage or injury is the result of the willful or wanton misconduct of the owner.” 12

V.S.A. § 5793(a) (emphasis added).

¶ 14. Vermont was one of the last states to enact a recreational use statute limiting

landowner liability after the Council of State Governments drafted a model act in 1965 “in

response to a growing trend among states to limit the common-law liability of owners who made

their land available to the public for recreational purposes.” See Martinez v. Ross, 227 A.3d 667,

673 (Md. Ct. Spec. App. 2020) (citing 24 Council of State Governments, Suggested State

Legislation, Public Recreation on Private Lands: Limitations on Liability 150 (1965)). The

Council explained in the preamble to the model act that it is unreasonable to expect “private owners

[who] are willing to make their land available to members of the general public without charge”

to undertake “the risks of liability for injury to . . . strangers from whom the accommodating owner

receives no compensation or other favor in return.” 24 Council of State Government, supra, pmbl.

¶ 15. Here, plaintiff argues that, given the undisputed facts in this case, the Recreational

Use Statute is inapplicable as a matter of law because he was injured on developed land—the beach

access road—which is not open to the public but rather reserved for the exclusive use of the

5
development’s residents (and their guests), who pay consideration for its use in the form of an

assessment to maintain the development’s common areas.2 Broken down into its component parts,

plaintiff’s argument is that the statute is inapplicable for any one of the following three reasons:

(1) the land upon which he was injured is not “open and undeveloped land” within the meaning of

the statutory term “[l]and,” 12 V.S.A. § 5792(2)(A)(i); (2) the land is not open to the public, as

required by the statute, see id. § 5791 (providing that purpose of statute is to encourage owners to

make their land “available to the public for no consideration for recreational us[e]”); and

(3) residents pay consideration for use of the land in the form of a fee assessment to maintain the

property for the residents’ exclusive use, see id. § 5792(1) (defining “Consideration” in part as “a

price, fee, or other charge paid to or received by the owner in return for the permission to enter

upon or to travel across the owner’s land for recreational use”).

¶ 16. We need not consider the first and third components of plaintiff’s argument insofar

as our resolution of the second component—the question of public use—is dispositive. We

conclude that the Recreational Use Statute is inapplicable in this case because the undisputed facts

demonstrate that the land upon which plaintiff was injured was not open to members of the general

public, as required to trigger the statute’s grant of limited liability to landowners.

¶ 17. As indicated, the Legislature expressly provided that the purpose of the statute is to

encourage landowners to make their property “available to the public” for recreational use without

consideration. The liability provision of the statute, however, refers to “a person” and does not

expressly provide that the land must be open to the public. Compare 12 V.S.A. § 5791, with id.

§ 5793(a). Focusing on the word “encourage” in the purpose provision, defendants would have us

discount that provision and rely primarily, if not exclusively, on the liability provision, which

2
The parties do not dispute the fact that plaintiff was engaged in a recreational use, as
defined by the statute, when he was injured. See 12 V.S.A. § 5792(4).

6
makes no mention of the public. We conclude that doing so would thwart the expressed legislative

intent underlying the statute.

¶ 18. We first note that: (1) the Legislature expressly provided that the Recreational Use

Act “shall be liberally construed to accomplish the purpose set forth in Sec. 1 (12 V.S.A. § 5791)

to limit an owner’s liability,” 1997, No. 110 (Adj. Sess.), § 2 (emphasis added); and (2) the purpose

provision is not the only provision in the statute indicating that landowners must make their land

available to the public to benefit from the statute, see 12 V.S.A. § 5794(c) (stating that posting of

land or presence of fences or agricultural or forestry-related structures does not preclude land from

being considered open and undeveloped for “purposes of protecting landowners who make land

available for recreational use to members of the public for no consideration pursuant to this

chapter” (emphasis added)). In short, the purpose provision’s suggestion that the statute’s limited

liability applies only to land open to the public for recreational use is bolstered not only by the

Legislature’s direction to liberally construe the statute according to that expressed purpose, but

also by another provision in the statute indicating that the statute applies only to land open to the

public.

¶ 19. Our recent opinion in Nolan v. Fishman, did not deal directly with the issue of

whether the Recreational Use Act applies only to land open to the public, but the opinion is

nonetheless instructive as to our understanding of the legislative intent underlying the statute. 2019

VT 63. Although we construed the statute broadly in concluding that it applied to limit the liability

of the defendants, who owned land where a young child wandering from an adjacent daycare had

drowned, we indicated our understanding that the plain language of the statute was designed to

protect owners who allowed recreational use by members of the general public. In rejecting the

trial court’s emphasis on the familial relationship between the daycare owners and defendants, we

noted that “the record shows that the land is just as ‘open’ to the daycare as it is to the general

public.” Id. ¶ 16.

7
¶ 20. Since enactment of the model act, many courts have acknowledged a perceived

“drafting problem” in that the liability provision did not include the word public, notwithstanding

the Act’s express purpose to encourage landowners to open their land to the public. Martinez, 227

A.3d at 674-75 (quotation omitted) (noting states’ recognition of “the tension between the

expressed statutory purpose, which is to encourage owners to open their land to the general public,

and the operative provisions, which can be read to grant limited liability against the claims of

ordinary invitees and licensees”). Nonetheless, most courts interpreting their recreational use

statute have concluded that, given the express purpose of the statute, the operative liability

provision’s reference to “person”3 refers to members of the general public, thereby conditioning

application of the statute on the land being open to the general public for recreational purposes.

Id. at 675-76 (discussing cases); Estate of Gordon-Couture v. Brown, 876 A.2d 196, 201-02 (N.H.

2005) (same)4; see also Conant v. Stroup, 51 P.3d 1263, 1267-68 (Or. Ct. App. 2002) (finding

persuasive courts’ near-uniform determination that recreational use statutes based on model act

effectuate their purpose by restricting protection to landowners who allow recreational use of their

land by members of general public).

¶ 21. As the vast majority of courts across the country have concluded, particularly those

containing an express purpose provision, recreational use statutes establish a tradeoff to promote

recreational use of private lands by the general public: landowners will benefit from limited

3
Many recreational use statutes refer to “any person” in their liability provisions, in
contrast to 12 V.S.A. § 5793(a)’s reference to “a person” in Vermont’s Recreational Use statute.
See, e.g., Estate of Gordon-Couture v. Brown, 876 A.2d 196, 201 (N.H. 2005) (discussing New
Hampshire statute); Conant v. Stroup, 51 P.3d 1263, 1265-66 (Or. Ct. App. 2002) (discussing
Oregon statute). This distinction does not impact our analysis on the question of whether the
statute requires that land be open to the general public for recreational use.
4
In so ruling, the New Hampshire Supreme Court declined to adopt a decision by the First
Circuit Court of Appeals holding that the limited liability provided under New Hampshire’s
recreational use statute was not restricted to land open to the general public. Estate of Gordon-
Couture, 876 A.2d at 205 (declining to adopt Collins v. Martella, 17 F.3d 1, 4 (1st Cir. 1994)).
8
liability for injuries resulting from recreational use of their land left open to members of the public

for such use. See Martinez, 227 A.3d at 674 (citing many courts that have recognized “quid pro

quo” contained in recreational use statutes: “in exchange for opening lands for recreational use by

the public, owners receive a special statutory grant of qualified immunity from suit by such

recreational users” (quotation omitted)); see also Mozier v. Parsons, 852 F. Supp. 925, 932 (D.

Kan. 1994) (noting that “courts in other states in which [the model act] has been adopted have

consistently held that a landowner receives the protection of the statute only by permitting free use

of the land and facilities by the general public”); Gibson v. Keith, 492 A.2d 241, 244 (Del. 1985)

(“[A]n invitation or permission (direct or indirect) extended by a landowner to the public to enter

without charge for recreational purposes is a sine qua non for invoking the statute’s protective

benefits.”).5

¶ 22. To hold otherwise, we would have to assume that, in enacting the Recreational Use

Statute, the Legislature intended to provide limited (trespasser) liability in a virtually unlimited set

of circumstances—guests and friends at a private home social gathering, for example—which

would essentially upend the long-established scheme of landowner liability distinguishing the duty

landowners owe to invitees and licensees from that owed to trespassers. See Demag v. Better

Power Equip., Inc., 2014 VT 78, ¶ 26, 197 Vt. 176, 102 A.3d 1101 (adopting long-established

5
The cases that defendants cite in support of their position either provide limited or
unpersuasive reasoning, or are based on distinguishable statutory language, or both. See, e.g.,
Stanley v. Tilcon Me., Inc., 541 A.2d 951, 953 (Me. 1988) (summarily concluding that limited-
liability provision in Maine’s recreational use statute, which has no express purpose provision, “is
neither expressly nor implicitly conditioned upon the agreement of the landowner” to open land to
general public); Lee v. Lamar Cent. Outdoor, LLC, No. 63048, 2014 WL 1319180, at *2 (Nev.
Mar. 31, 2014) (concluding that owner’s construction of fence and billboard on his property did
not preclude application of recreational use statute, which has no express purpose provision, and
citing New York decisions holding that recreational use statute applied even where landowners
made efforts to prevent others from using property); Coogan v. D’Angelo, 886 N.Y.S.2d 306, 308
(App. Div. 2009) (citing well-settled law that New York recreational use statute, which has no
express purpose provision, applies to landowners who attempt to prevent members of public from
using their land).
9
reasonable-care standard for duty landowners owe to all lawful entrants onto their land but

emphasizing that landowners still have no duty to protect trespassers from injuries caused by

unsafe or dangerous conditions on their land); see also Martinez, 227 A.3d at 675 (concluding that

ignoring purpose provision of recreational use statute and reading liability provision in isolation

to make statute available to landowners whose land is not open to public “effectively would nullify

the law of premises liability as it pertains to invitees” (quotation omitted)); Snyder v. Olmstead,

634 N.E.2d 756, 761 (Ill. App. Ct. 1994) (applying Recreational Use Act “to a situation where an

owner does not open his property to the public, but simply invites a few private persons to a picnic”

would lead to absurd results and “eviscerate the common law by immunizing all homeowners from

all negligence claims of all guests who enter for” recreational purposes); Bucki v. Hawkins, 914

A.2d 491, 497 (R.I. 2007) (“It would be both absurd and contrary to the Legislature’s stated intent

to shield every landowner from liability for injuries that guests suffer while engaging in

recreational activity on their property.”); Perrine v. Kennecott Mining Corp., 911 P.2d 1290, 1293-

94 (Utah 1996) (construing Landowner Liability Act to apply to landowner who permitted use of

its land by rodeo club’s dues-paying members “would be nonsensical and contrary to the Act’s

stated purpose” of encouraging landowners to make their land available to public).

¶ 23. We would also have to assume that the Legislature intended to insulate

homeowners’ and condominium associations from liability for injuries occurring in common areas

controlled by the associations, notwithstanding the existence of law suggesting the contrary. See,

e.g., Martinez v. Woodmar IV Condos. Homeowners’ Ass’n, 941 P.2d 218, 221 (Ariz. 1997) (en

banc) (citing Restatement sections for principle that condominium association, like landlord, has

duty to provide reasonable care to protect owners, tenants, and their guests who use common areas

under association’s control); Sevigny v. Dibble Hollow Condo. Ass’n, 819 A.2d 844, 854-55

(Conn. App. Ct. 2003) (concluding, along with courts of other states, that condominium

association, similar to landlord-duty relationship, has duty of reasonable care toward unit owners

10
and their guests with respect to their use of common areas controlled by association); see also

Trailside Townhome Ass’n v. Acierno, 880 P.2d 1197, 1202-03 (Colo. 1994) (en banc)

(concluding that operative documents of townhome association, as well as general negligence

principles, establish duty giving rise to tort obligations concerning use of common areas). There

is no indication that the Legislature intended such results.6

¶ 24. Defendants argue, however, that it would be absurd to apply Vermont’s

Recreational Use statute only when landowners open their lands to every single member of the

public without restrictions. We make no such holding here. We need not engage in line-drawing

in this case to establish when land is sufficiently open to the public to warrant application of the

statute. Cf. Snyder, 634 N.E.2d at 761 (stressing “that in order to seek protection under the

[Recreational Use] Act, a landowner need not allow all persons to use the property at all times”

(quotation omitted)); Perrine, 911 P.2d at 1293 (stating that “landowners must make their land

available to all members of the general public” but “may impose reasonable restrictions on the

type of recreational activities allowed on their land”); Herring v. Hauck, 165 S.E.2d 198, 199 (Ga.

Ct. App. 1968) (construing Recreational Use Statute to “permit the free use of [owner’s] facilities

or land by the public generally or by a particular class of the public”); Martinez, 227 A.3d at 680

(noting “qualitative difference” between making property open to all as opposed to invited social

guests); Young v. Wood, 254 S.W.3d 871, 874 (Mo. 2008) (en banc) (applying statute to

landowner who gave hunters permission to use land and noting that Missouri’s Recreational Use

Act does not “require that land be opened to the entire general public”); Holden v. Schwer, 495

N.W.2d 269, 274 (Neb. 1993) (holding “that the Recreation Liability Act does not require a

6
Because the land here was undisputedly closed to the public, we need not and do not
decide whether the Recreational Use Statute reduces the standard of care a landowner owes to
invited guests, or a homeowners’ association owes to members and their invited guests, with
respect to land that is also held open to the members of the public for recreational uses.
11
landowner to fully dedicate . . . property to the public before the landowner comes under the

protection of the act”). We leave any such line-drawing for future cases.

¶ 25. Here, notwithstanding defendants’ protestations to the contrary, the undisputed

record plainly demonstrates that the subject property was not open to the public in any manner,

shape, or form—but rather was open only for the exclusive use of the development’s residents and

their guests. This fact is established in the record through admission of the development’s

operative documents, as well as witness testimony. Indeed, the chain upon which plaintiff was

injured was erected specifically to deter members of the public from using the Association’s beach.

The exclusive use of the beach access road by the development’s residents and their guests cannot

be considered use by the public under any reasonable interpretation of the word or the statute. See

Public, Black’s Law Dictionary (11th ed. 2019) (defining “public,” in part, as “[o]f, relating to, or

involving an entire community, state, or country,” and “[o]pen or available for all to use, share, or

enjoy”). In short, defendants did not satisfy their end of the inherent bargain contained in the

Recreational Use Statute limiting landowner liability for injuries resulting from recreational uses

on lands open to the public for such uses. Accordingly, we conclude that the Recreational Use

Statute is inapplicable to defendants in this case, and we reverse the trial court’s summary-

judgment ruling on this point.

III. The Individual Defendants

¶ 26. As for the individual defendants, the trial court granted Spates’s separate motion

for summary judgment, ruling that: (1) in his capacity as a director and officer of the Beach

Association,7 a non-profit corporation, Spates could be liable only for actions that constituted gross

7
The trial court noted that, in response to the motion for summary judgment, plaintiff
claimed liability against Spates only in his capacity as director of the Beach Association, and not
in his capacity as a partner in the Partnership that created Pine Bluff Estates. Plaintiff does not
dispute this fact. Neither does plaintiff challenge the trial court’s application of § 5781(1); rather,
he contends that the court erred in finding no evidence in the record to support a finding of gross
12
negligence, see 12 V.S.A. § 5781(1) (providing that persons who serve “without compensation as

a director, officer, or trustee of a nonprofit organization . . . shall not be held personally liable for

damages resulting from . . . any [good faith] act or omission within the scope of the person’s

official functions or duties . . . unless it constitutes gross negligence or an intentional tort”); and

(2) as a matter of law, plaintiff failed to proffer facts sufficient to demonstrate that Spates was

either grossly negligent or engaged in conduct that caused plaintiff’s injuries.

¶ 27. The trial court also ruled with respect to all of the individual defendants—Spates,

Lalime, and Davies—that: (1) none of them, in their individual capacity or as directors of the

Beach Association or partners in the Partnership owed a legal duty to plaintiff under the Beach

Association’s by-laws; and (2) no facts showed that they were responsible for, or approved, the

design, installation, cost, or use of the posts and chain.

¶ 28. On appeal, in challenging the trial court’s rulings, plaintiff focuses solely on the

individual defendants’ role as directors of the Beach Association. Hence, the legal issue on appeal

is the same for all three of the individual defendants. Further, in the absence of any challenge to

the trial court’s application of § 5781(1), the only issue is whether the trial court erred in

concluding that, based on the record before it, plaintiff failed to proffer sufficient facts to support

a claim of gross negligence. We conclude, as a matter of law, that the record does not support a

claim of gross negligence against the individual defendants.8

negligence. Plaintiff has not raised, and we do not consider, how, if at all, Spates’s role as a partner
in the still-active Partnership could impact the application of § 5781(1).
8
Defendants argue that plaintiff failed to preserve a claim of gross negligence. We address
the merits of plaintiff’s argument that the record supports a claim of gross negligence, insofar as
the trial court considered whether plaintiff had made a sufficient showing to support such a claim
and ruled that he had not. See Vt. Built, Inc. v. Krolick, 2008 VT 131, ¶ 10, 185 Vt. 139, 969 A.2d
80 (stating that purpose of “preservation rule is to ensure that the original forum is given an
opportunity to rule on an issue prior to our review” and that rule “is satisfied when the trial court
had a fair opportunity to consider, evaluate and rule upon the question raised on appeal”
(quotations omitted)).
13
¶ 29. “Gross negligence is negligence that is more than an error of judgment; it is the

failure to exercise even a slight degree of care, owed to another.” Sutton v. Vt. Reg’l Ctr., 2019

VT 71A, ¶ 56, ___ Vt. ___, 238 A.3d 608 (quotation omitted). “In other words, to establish gross

negligence, a plaintiff must show a defendant heedlessly and palpably violated a legal duty owed

to plaintiff.” Id. (quotation omitted). “Whether a defendant’s conduct rose to the level of gross

negligence is ordinarily a question of fact for the jury, and an allegation of gross negligence may

be dismissed by the court only if reasonable minds cannot differ.” Id. (alteration omitted)

(quotation omitted).

¶ 30. In opposing defendants’ motions for summary judgment, plaintiff neither asserted

any material undisputed facts nor disputed any material facts alleged by either defendants or Spates

relative to the individual defendants’ role as directors of the Beach Association. See V.R.C.P.

56(c)(1)(A) (providing that party disputing material facts alleged in motion for summary judgment

must support assertion with “a separate and concise statement of undisputed material facts or a

separate and concise statement of disputed facts”); see also Webb v. Leclair, 2007 VT 65, ¶ 4, 182

Vt. 559, 933 A.2d 177 (mem.) (“[W]e have consistently enforced the rule that a plaintiff’s failure

to controvert facts in a counter statement requires that the moving party’s undisputed facts be taken

as true.”).

¶ 31. Spates asserted in his statement of undisputed facts, in part, that: (1) he, Lalime,

and Davies do not own property in Pine Bluff Estates but served as president, secretary, and

treasurer, respectively, of the Beach Association and on the Association’s board of directors;

(2) although Spates, as president, ran the Association meetings, it was the Association that made

decisions; (3) at some point, the Beach Association members requested that some sort of barrier

be erected along the beach access road to prevent unauthorized traffic on the road and partying on

the beach; (4) a Beach Committee was formed in 2006; (5) Spates was not a member of the Beach

Committee and relied upon Association members to exercise reasonable care when using the

14
common areas; and (6) Spates was not involved in the design or installation of the barrier erected

on the access road and was unaware of any unreasonably dangerous conditions created by the

barrier that was eventually erected.

¶ 32. Defendants asserted in their statement of undisputed material facts, in part, that:

(1) at some point, posts and a chain were installed on the beach access road; (2) Beach Association

members took responsibility to put the chain up; (3) one of the Association members, the same

person who plaintiff saw driving his vehicle toward him on the day he was injured, assumed the

unofficial volunteer position as beach keeper; (4) a Beach Committee was formed in 2006 to

coordinate improvements to the beach and beach access road; (5) because creation of the Beach

Committee was part of a planned transition of authority to the Pine Bluff Estates property owners,

Davies, Lalime, and Spates were not members of the Beach Committee; and (6) at the 2007 annual

Association meeting, members discussed installing gates or putting up a chain again once a gazebo

was completed.

¶ 33. On appeal, plaintiff cites bylaws of the Meadow’s Edge at Pine Bluff Estates

Association that make the board of directors responsible for approving any maintenance or repair

of the common areas.9 Essentially, plaintiff argues that, given the individual defendants’ effective

concession that they took no responsibility to ensure the erection of safe barriers on the beach

access road, notwithstanding their duty to do so under the development’s bylaws, a jury could find

that, through their omissions, they were grossly negligent.

9
In opposing summary judgment in the trial court, plaintiff did not cite or rely on the
Meadow’s Edge at Pine Bluff Estates Association bylaws; rather, he cited only the Beach
Association bylaws providing that the board of directors assumed all duties and powers necessary
for the administration of the affairs of the Beach Association and could do any acts not directed to
be exercised by unit owners. This is the argument that the trial court considered and rejected,
concluding that the bylaws providing general authority for governance of the corporation did not
impose a duty on the individual defendants that would support a negligence action. Because the
trial court had no opportunity to consider it, plaintiff failed to preserve for review by this Court his
argument that the Meadow’s Edge bylaws created a legal duty that the individual defendants owed
to him in connection with this case. See Krolick, 2008 VT 131, ¶ 10.
15
¶ 34. We conclude that, as a matter of law, given the undisputed facts in this case,

plaintiff cannot demonstrate that any acts or omissions by the individual defendants “heedlessly

and palpably violated a legal duty owed to plaintiff.” Sutton, 2019 VT 71A, ¶ 56 (quotation

omitted). The undisputed record before the trial court indicated that the individual defendants

were neither property owners nor Association members at Pine Bluff Estates and took no part in

the design or installation of the barrier across the access road, which had been delegated to a Beach

Committee made up of Association members. Notwithstanding plaintiff’s argument on appeal that

the record is unclear as to whether Association bylaws permitted any such delegation, the

individual defendants’ lack of involvement in overseeing the design, erection, or maintenance of

the barrier on the beach access road—though potentially negligent—did not rise to the level of

gross negligence, given the undisputed facts of this case.

The civil division’s August 24, 2020 summary judgment decision is affirmed as to the
individual defendants. The decision is reversed as to the non-individual defendants, and the matter
is remanded for further proceedings consistent with this opinion.

FOR THE COURT:

Associate Justice

16