Hoffman v. Gm Operations

7ermont Superior Court
Filed 01/08/26
Chittenden UUnit

VERMONT SUPERIOR COURT CIVIL DIVISION
Chittenden Unit Case No. 25-CV-2013
175 Main Street
Burlington VT 05402
802-863-3467
.vermontjudiciary.org

SUSAN HOFFMAN, as Administrator of the
Estate of Marilyn Hoffman,
Plaintiff

Vv. DECISION ON MOTION

GM OPERATIONS, LLC d/b/a GREEN
MOUNTAIN NURSING AND
REHABILITATION CENTER,
Defendants

RULING ON DEFENDANT?'S PARTIAL MOTION TO DISMISS

This wrongful death and survivor's action arises from a fall and injury in a nursing home
that allegedly caused the death of Marilyn Hoffman. Plaintiff asserts several claims, including
negligence, breach of contract, consumer fraud, and a violation of the Nursing Home Resident's
Bill of Rights pursuant to 33 V.S.A. § 7301, et seq. Plaintiff also seeks punitive damages.
Pursuant to Rule 12(b)(6) of the Vermont Rules of Civil Procedure, Defendant has moved for
dismissal of the consumer fraud, Nursing Home Resident's Bill of Rights, and punitive damages
claims (Counts IT1, [V, and VII). In opposing the motion to dismiss, Plaintiff dropped her
Nursing Home Resident's Bill of Rights claim (Count IV). Thus, the Court addresses only the
consumer fraud and punitive damages claims below. Plaintiff is represented by Brooks
McArthur, Esq., and Defendant is represented by William Smart, Esq. For the reasons discussed
below, the motion is DENIED.

Alleged Facts

The following facts are alleged in the Complaint. The Court makes no finding as to their
accuracy at this stage of the proceeding. Instead, the Court "must assume that the facts pleaded
in the complaint are true and make all reasonable inferences in the plaintiff's favor." Montague
v. Hundred Acre Homestead, LLC, 2019 VT 16, J 10, 209 Vt. 514.

Defendant GM Operations, LLC operates and manages a nursing care facility under the
name "Green Mountain Nursing and Rehabilitation Center" (hereinafter "Green Mountain") in
Colchester. At all times relevant to this action, Green Mountain has offered long-term care and
skilled nursing, subacute care, and rehabilitation services. Plaintiff Susan Hoffman is the
Administrator of the Estate of Marilyn Hoffman. Marilyn Hoffman ("Decedent") was a resident
of Green Mountain from June 15, 2018 through August 16, 2023.
On August 10, 2023, a licensed nursing assistant and employee/agent of Green Mountain
was changing Decedent’s bed linens while Decedent remained in bed. No other nursing home
staff assisted the employee with changing Decedent’s bed linens at that time. As Decedent was
on her right side, the employee pulled the linens out from under Decedent, causing her to fall off
the bed on to the floor. Decedent was lifted back into her bed with a “Hoyer lift” after the fall.

The next day, on August 11, 2023, nursing home staff contacted Decedent’s daughter to
notify her that Decedent had fallen off the bed the prior evening and that a Hoyer lift was used to
put her back in bed. Staff also indicated that Decedent “seemed alright” and had “no injuries.”
Compl. ¶ 8. Later that same day, Decedent’s daughter visited Decedent at Green Mountain. She
observed Decedent moaning and groaning with her eyes closed. Decedent’s roommates
indicated that Decedent had been screaming and moaning all night.

Decedent’s daughter reported her observations to nursing staff, who dismissed her
concerns as signs of constipation. Decedent’s daughter insisted that her mother be evaluated
immediately. Staff then lifted up the blanket covering Decedent’s legs and discovered a large
bruise on the left leg. Decedent’s daughter then insisted that her mother be further evaluated for
injuries by a physician. Staff responded that an x-ray technician would not be available until
three days later. Decedent’s daughter continued to insist, and an x-ray technician ultimately
came in that same day and a fracture was discovered in Decedent’s lower left extremity.

After a physician confirmed a fracture, Green Mountain did not have any braces in stock
to put on Decedent’s leg, so one was made from cardboard and a compression sock. Decedent
was then given pain medication almost 24 hours after the injury occurred. Decedent suffered
significant personal injuries as a result of the fall. In the days following the injury, Decedent’s
health significantly declined and she passed away on August 16, 2023.

Discussion

Defendant seeks dismissal of the consumer fraud and punitive damages claims. In
deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court considers whether “it appears
beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.”
Davis v. Am. Legion, Dep’t of Vt., 2014 VT 134, ¶ 12, 198 Vt. 204 (quoting Alger v. Dep’t of
Labor & Indus., 2006 VT 115, ¶ 12, 181 Vt. 309). The Court “must assume that the facts
pleaded in the complaint are true and make all reasonable inferences in the plaintiff’s favor.”
Montague, 2019 VT 16, ¶ 10. The burden on plaintiffs under Vermont law is “exceedingly low”
at the pleading stage. Prive v. Vt. Asbestos Group, 2010 VT 2, ¶ 14, 187 Vt. 280. Complaints
are intended to give enough notice to the defendant to allow a response, but need not lay out
every detail of the facts supporting the claim. See Colby v. Umbrella, Inc., 2008 VT 20, ¶ 13,
184 Vt. 1 (“The complaint is a bare bones statement that merely provides the defendant with
notice of the claims against it.”). The goal is to “strike a fair balance, at the early stages of
litigation, between encouraging valid, but as yet underdeveloped causes of action and
discouraging baseless or legally insufficient ones.” Id. As such, motions to dismiss for failure to
state a claim are “disfavored.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575. “Nonetheless,
where the plaintiff does not allege a legally cognizable claim, dismissal is appropriate.”
Montague, 2019 VT 16, ¶ 11.

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I. Consumer Protection Act.

Plaintiff alleges that Defendant engaged in unfair or deceptive acts or practices in
commerce. 1 Vermont’s Consumer Protection Act prohibits “unfair or deceptive acts or practices
in commerce.” 9 V.S.A. § 2453(a). “To sustain a consumer-protection claim, a plaintiff must
(1) prove facts that meet the definition of an unfair or deceptive act under 9 V.S.A. § 2453(a),
and (2) demonstrate the prerequisites to a private action under 9 V.S.A. § 2461(b).” Mansfield v.
Heilmann, Ekman, Cooley & Gagnon, Inc., 2023 VT 47, ¶ 32, 218 Vt. 359 (citing Dernier v.
Mortg. Network, Inc., 2013 VT 96, ¶ 56, 195 Vt. 113).

An “unfair” act “causes or is likely to cause substantial injury to consumers which is not
reasonably avoidable by consumers themselves and not outweighed by countervailing benefits to
consumers or to competition.” 15 U.S.C.A. § 45(n); see also 9 V.S.A. § 2453(b) (in deciding
whether an act or practice is “unfair or deceptive” under the Consumer Protection Act, “the
courts of this State will be guided by the construction of similar terms contained in Section
5(a)(1) of the Federal Trade Commission Act [9 U.S.C. § 45] as from time to time amended by
the Federal Trade Commission and the courts of the United States”). To establish a “deceptive
act or practice” under the Act requires three elements: “(1) there must be a representation,
omission, or practice likely to mislead consumers; (2) the consumer must be interpreting the
message reasonably under the circumstances; and (3) the misleading effects must be material,
that is, likely to affect the consumer’s conduct or decision regarding the product.” Madowitz v.
Woods at Killington Owners’ Ass’n, Inc., 2014 VT 21, ¶ 23, 196 Vt. 47 (citation omitted). “To
maintain a private action under § 2461(b), a plaintiff must show either (1) reliance on a deceptive
act in contracting for goods or services or (2) damages or injury from an unfair or deceptive act.”
Mansfield, 2023 VT 47, ¶ 34. For reliance claims, “no actual injury is required.” Id. For
damages claims, “a plaintiff must prove causation and injury.” Id. (citation omitted).

Specifically, Plaintiff alleges that Defendant falsely represented that it was “skilled” at
providing the “scope and quality of care” that Decedent required in June of 2018, and that
Plaintiff reasonably relied upon that representation. Compl. ¶ 36. Plaintiff further alleges that
Defendant failed to provide Decedent with the level of care and supervision that it knew she
required, that it knew or should have known that it was unable to provide Decedent with that
level of care, and that it “failed to disclose” its inability to provide such care. Id. ¶¶ 37-39.

The representation that Defendant was “skilled” at providing the care that Decedent
needed is a statement of opinion, and therefore cannot constitute a deceptive act. See Lynn v.
Slang Worldwide, Inc., 2025 VT 30, ¶ 11 (“In analyzing claims of fraud, this Court has
consistently distinguished statements of fact from statements of opinion. Misrepresentation of
the former can be fraud, but misrepresentation of the latter cannot . . . .” (quotation omitted)); PH
W. Dover Prop., LLC v. Lalancette Eng’rs, 2015 VT 48, ¶ 12, 199 Vt. 1 (same); Heath v.
Palmer, 2006 VT 125, ¶ 14, 181 Vt. 545 (same). The alleged representation here of “skilled”

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Plaintiff also alleged that Defendant engaged in “unfair methods of competition,” Compl.
¶ 40, but did not respond to Defendant’s argument on that specific point. See Def.’s Mot. to
Dismiss at 4-5. Thus, to the extent Plaintiff’s consumer protection claim relies on a theory of
“unfair methods of competition,” Plaintiff has waived that theory.
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care “unquestionably fall[s] within the category of opinion as subjective evaluations of
workmanship rather than objectively verifiable statements of fact.” Heath, 2006 VT 125, ¶ 14.

However, the separate allegations that Defendant “failed to disclose that they were unable
to provide Decedent with the care she required” and that they “knew or should have known” that
they were unable to provide that care, Compl. ¶¶ 38-39, are different. Whether Defendant could
or could not provide Decedent with the care that she required is not an opinion, but a fact capable
of objective verification. Moreover, it is a material omission of fact. A disclosure that a nursing
home could not provide the level of care that a prospective patient requires would lead any
reasonable consumer not to pursue the services of that nursing home for that patient. The
Complaint’s allegations show that Plaintiff reasonably relied on the omission of that material fact
by admitting Decedent to Green Mountain, and that the omission ultimately caused harm to
Decedent. Whether Plaintiff can marshal sufficient facts to support her consumer protection
claim on summary judgment or at trial remains to be seen. At this stage, however, her
allegations are sufficient to survive a motion to dismiss.

Punitive Damages

Plaintiff claims that she is entitled to punitive damages. 2 More specifically, she alleges
that Defendant’s “actions and omissions were in violation of federal and state law and
regulation” and of its “own policies and procedures,” Compl. ¶ 55, that Defendant “further
misrepresented the facts of Decedent’s fall and injuries to her family, and to others, in an effort
to minimize Defendant’s wrongful conduct,” id. ¶ 56, and that Defendant’s “actions and
omissions were grossly negligent, reckless, willful, wanton and malicious, or rose to the level of
same.” Id. ¶ 57. Plaintiff further alleges that Defendant was “on notice of the dangers presented
to residents who were prone to falls and . . . of the methods and means by which residents prone
to falls could be supervised and protected,” yet “failed to institute any of these safeguards.” Id.

In Vermont, punitive damages require “outrageously reprehensible” conduct
accompanied by “malice.” Fly Fish Vermont, Inc. v. Chapin Hill Estates, Inc., 2010 VT 33,
¶ 18, 187 Vt. 541. “Outrageously reprehensible” conduct means “wrongdoing” that “has the
character of outrage frequently associated with crime.” Id. “Malice” is “defined variously as
bad motive, ill will, personal spite or hatred, reckless disregard, and the like.” Id. Much of
Plaintiff’s allegations here demonstrate conduct that may have been wrongful and negligent, but
that does not rise to the high level of outrage and malice. One example is the allegation that
Defendant violated laws, regulations, policies, and procedures. “Willful violation of the law is
insufficient evidence of malice, if not accompanied by a showing of bad faith.” Bolsta v.
Johnson, 2004 VT 19, ¶ 7, 176 Vt. 602 (quotation omitted).

However, the allegation that Defendant “ignored [Decedent’s] screams and emotional
distress in response to the extensive pain that she was in for almost 24 hours” could demonstrate

2
Although Plaintiff has pled punitive damages as a separate count in Count VII, a claim of
punitive damages is not a separate cause of action. Rather, it is a category of damages and a
remedy that could only be awarded if Plaintiff prevailed on a separate, underlying claim. As
such, it is rarely appropriate for consideration on a motion to dismiss.
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outrageous conduct. And the alleged misrepresentation of Decedent’s fall and injuries to her
family could demonstrate that Defendant acted intentionally in delaying treatment, even though
that took place after the fall. Moreover, the alleged failure to institute safeguards despite being
on notice of the dangers to patients prone to falls and of the ways to prevent such falls could rise
to the level of malice under a “conscious disregard” theory. See Fly Fish Vermont, 2010 VT 33,
¶¶ 24-25 (concluding that “the conscious disregard of a known and sufficiently serious risk of
harm is the equal of malice”). Thus, the Court concludes that Plaintiff may pursue her claim for
punitive damages through discovery and factual development to determine whether she can
establish actual malice.

The Court notes, however, that this may be an uphill climb for Plaintiff. “Generally,
when punitive damages are sought against a corporate entity, the malicious or unlawful act relied
upon must be that of the governing officers of the corporation or one lawfully exercising their
authority.” Post & Beam Equities Group, LLC v. Sunne Vill. Dev. Prop. Owners Ass’n, 2015 VT
60, 199 Vt. 313 (quotation omitted). Mere “inaction or inattention of senior corporate officers”
does not “constitute[] malice sufficient to establish punitive damages liability.” Brueckner v.
Norwich Univ., 169 Vt. 118, 130-31, 730 A.2d 1086, 1096 (1999). But as the Court indicates
above, a motion to dismiss typically is not the time to test whether the facts of the case will
support such relief.

Order

For the foregoing reasons, Defendant’s motion to dismiss (Mot. # 1) is DENIED.

Defendant shall file an amended answer in light of the Court’s decision within 14 days,
and the parties shall submit a proposed discovery schedule within 14 days thereafter.

Electronically signed on January 8, 2026 at 10:15 AM pursuant to V.R.E.F. 9(d).

________________________________
Megan J. Shafritz
Superior Court Judge

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