quick facts

A Right to Constitutional Damages Against the State

The Supreme Court of Vermont recognized a constitutional cause of action for damages under the Vermont Constitution, not limited by sovereign immunity or governed by the limited waivers of immunity in the Vermont Tort Claims Act (“VTCA”). 1 This is good news for plaintiffs who can recover damages from the state under the Vermont Constitution, provided that the constitutional right is “self-executing” and damages are necessary to remedy the harm suffered. 2 Plaintiffs can also recover, under the Vermont Constitution, damages from municipalities without being subject to the limitations of municipal immunity. 3 Plaintiffs should be aware that in constitutional tort cases, Vermont courts will undertake an analysis “akin to qualified immunity.” 4

Vermont Tort Claims Act

Plaintiffs can also recover under the VTCA, which waives sovereign immunity for certain instances of negligence and makes Vermont liable for the negligence of employees “in the same manner, and to the same extent as a private person would be liable.” 5 The VTCA contains a number of exceptions, including for intentional torts, discretionary functions, and execution of a statute or regulation with due care. 6 Generally, claims based on the acts or omissions of a state employee who acted within the scope of employment lie against the State, not against the individual employees who allegedly committed the harm. However, claims can be brought against an employee personally for gross negligence or willful misconduct, even if the conduct occurred within the scope of employment. 7

Municipal liability is largely a matter of common law. 8 Vermont courts have preserved the common-law immunity for governmental functions along with discretionary-function immunity for municipalities. 9 However, when a municipality purchases liability insurance, it waives its immunity to “the extent of the coverage of the policy and consents to be sued.” 10 Municipal employees are not protected from personal liability by the proprietary/governmental distinction, but they enjoy official immunity when they perform discretionary acts in good faith during the course of employment and within the scope of their authority. 11