On Appeal from Superior Court, Washington Unit, Civil Division. Helen M. Toor, J.
Heidi Groff of Biggam, Fox & Skinner, Montpelier, for Plaintiff-Appellant.
William H. Sorrell, Attorney General, and Toni Hamburg Clithero and William H. Rice, Assistant Attorneys General, Montpelier, for Defendant-Appellee.
Present: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.
[¶1] laintiff-appellant Kathleen Vanderbloom filed an action against the State of Vermont, alleging that it negligently designed and constructed a state highway, causing her to suffer injuries in a car crash. The superior court granted summary judgment to the State on sovereign-immunity grounds. We affirm.
[¶2] On an afternoon in February 2009, two cars collided on State Route 63 in the Town of Berlin. The westbound car crossed the center line and crashed into plaintiff's car, which was heading east. The driver of the westbound car was killed. Plaintiff suffered serious, disabling physical injuries.
[¶3] In February 2012, plaintiff filed a negligence suit against the State. In her August 2012 amended complaint, plaintiff asserted that the State, through its employees, had a duty to exercise reasonable care in the design, construction, and maintenance of highways, including Route 63, and that the State had breached this duty by creating an unreasonably dangerous roadway. Plaintiff specifically alleged that the State had designed and constructed the shoulder of Route 63 so that it drained water from melting snow and ice onto the traveled portion of the road, where it could refreeze (a condition called " freezeback" ). This condition, plaintiff alleges, caused the other driver to lose control of her car and collide with plaintiff.
[¶4] Plaintiff argued that the State waived its sovereign immunity with respect to this action under the Vermont Tort Claims Act (VTCA), 12 V.S.A. § § 5601-5606. In September 2014, following discovery, the superior court granted the State's motion for summary judgment, concluding that plaintiff's claim is barred by 12 V.S.A. § 5601(e)(8), which preserves the State's sovereign immunity against " [a]ny claim arising from the selection of or purposeful deviation from a particular set of standards for the planning and design of highways." The court thus concluded that the State was entitled to judgment as a matter of law. Plaintiff appeals.
[¶5] Summary judgment will be granted " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." V.R.C.P. 56(a). We review a grant of summary judgment de novo, under the same standard as the superior court, considering the facts presented in the light most favorable to the nonmoving party. Madkour v. Zoltak, 2007 VT 14, ¶ 12, 181 Vt. 347, 924 A.2d 11.
[¶6] [1, 2] " Under the doctrine of sovereign immunity, claims against the State are barred unless immunity is expressly waived by statute." Kane v. Lamothe, 2007 VT 91, ¶ 6, 182 Vt. 241, 936 A.2d 1303
(quotation omitted); see also Searles v. Agency of Transp., 171 Vt. 562, 563, 62 A.2d 812, 813 (2000) (mem.). The VTCA generally waives the State's sovereign immunity for " injury to persons ... or loss of life caused by the negligent or wrongful act or omission" of state employees " acting within the scope of employment," and allows suits against the State " in the same manner and to the same extent as a private person would be liable to the claimant." 12 V.S.A. § 5601(a). The VTCA, however, also carves out eight statutory exceptions to this general waiver of immunity. One of these is § 5601(e)(8), which preserves the State's sovereign immunity against " [a]ny claim arising from the selection of or purposeful deviation from a particular set of standards for the planning and design of highways." We have held that this exception does not preserve the State's sovereign immunity in cases in which the State intends to follow particular design standards but then negligently fails to design to those chosen standards. See McMurphy v. State, 171 Vt. 9, 12, 757 A.2d 1043, 1046 (2000) (" Whereas [12 V.S.A. § 5601](e)(8) shelters the State from liability ...