Andrew Delaney on Jan 19, 2021
First up is a case about some horrific high school hazing. You may remember that there was a 2018 decision involving a student at Milton High School who committed suicide in 2012—a year after being sexually assaulted by football team members. In that case, SCOV ruled in favor of the school district, concluding that the assault wasn’t foreseeable and that the school therefore did not have a duty to prevent it. This case is a little bit different. Plaintiff here was also sexually assaulted by members of the Milton High School football team. This happened at an off-campus team dinner, after the other student’s suicide. In part, the events leading to the other student’s suicide provide the necessary notice to make this assault foreseeable.
Plaintiff prevailed at trial and the jury allowed $280K in damages, attributing 40% fault to plaintiff. This led to post-trial motions. The trial court reasoned that it was wrong to put the comparative-negligence question to the jury in the first place, removed the comparative-negligence determination, and increased the verdict proportionately. Defendant and plaintiff appeal a number of issues. First, the defense argues that it had no duty to protect plaintiff. Without getting into the weeds, SCOV concludes this argument was not preserved. Next, the defense argues that the trial court erred when it got rid of the jury’s comparative-negligence determination. SCOV doesn’t buy it, agreeing with the trial court that under the facts of the case, the comparative-negligence question ought not have gone to the jury in the first place—there wasn’t any comparative negligence in this case.
SCOV then moves to plaintiff’s cross-appeal. Plaintiff argues that the introduction of excerpts from his disciplinary records was reversible error because they violated the prior-bad-acts rule. SCOV disagrees here, reasoning that the excerpts were introduced to counter plaintiff’s I-was-a-pretty-nice-kid assertion, were carefully curated, and there was no abuse of discretion in doing so. Plaintiff also argues that the trial court erred in failing to direct a verdict for the plaintiff post-trial on his Vermont Public Accommodations Act claims and that the court’s jury instructions went beyond the law’s requirements. Neither argument gets much traction and SCOV reasons that most of plaintiff’s arguments on those points are either precluded by the invited-error doctrine or don’t demonstrate enough prejudice. Finally, SCOV rejects plaintiff’s we-should-have-gotten-a-punitive-damages-instruction argument. SCOV explains that punitive damages are to punish the wrongdoer and that when the defendant is a municipality, it’s not the actual wrongdoer that gets punished but the taxpayers. So that goes nowhere.
Read this opinion. It’s got a lot of important things to consider if you do any plaintiff’s work. The footnotes are important. I’ve glossed over a lot of content because, well, that’s what I do here. Blondin v. Milton Town School District, 2021 VT 2.
Our next opinion is a book about a certificate of public good (CPG). The opinion weighs in at 49 pages and that’s almost enough to keep me from my usual skimmin’ and summarizin’. Nobody wants a solar array next door. The appellants (neighbors to the south) here challenge the Public Utility Commission’s (PUC) issuance of a CPG for a bunch of reasons, including that: (1) the application was incomplete; (2) there were major changes that the PUC treated as minor amendments; (3) the site was not a preferred site (whatever that means); (4) the setbacks were no good; and (5) there’d be an undue adverse effect on aesthetics, orderly development, wetlands, air pollution, greenhouse gases, and traffic. It’s Saturday morning and I’m just going to skip to the punchline. SCOV affirms. There’s background on what the PUC does and the criteria for issuing a CPG. SCOV also gives the factual and procedural background and analyzes the individual claims of error. It’s your classic appellate opinion. But don’t just take my word for it! The link follows if this kind of administrative-agency-law stuff tickles your ivories. Obviously, mine it does not. I swear to God I tried. In re Petition of Acorn Energy Solar 2, LLC, 2021 VT 3.