The Vermont Statutes Online

Title 12: Court Procedure

Chapter 027: Pleading and Practice

• Subchapter 001: ACTIONS

• §§ 971-974. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

• Subchapter 002: PLEADINGS GENERALLY

• §§ 1021-1035. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

• § 1036. Contributory and comparative negligence

  (a) Contributory negligence shall not bar recovery in an action by any plaintiff, or the plaintiff’s legal representative, to recover damages for negligence resulting in death, personal injury, or property damage, if the negligence was not greater than the causal total negligence of the defendant or defendants, but the damage shall be diminished by general verdict in proportion to the amount of negligence attributed to the plaintiff. Where recovery is allowed against more than one defendant, each defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of the defendant’s causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed.

  (b) Contributory and comparative negligence shall be prohibited as a defense to limit a plaintiff’s recovery for damages in an action for a negligence claim relating to a sexual act as defined in 13 V.S.A. § 3251 or sexual conduct as defined in 13 V.S.A. § 2821. (Added 1969, No. 234 (Adj. Sess.), § 1, eff. date see note; amended 1979, No. 179 (Adj. Sess.), § 1, eff. May 5, 1980; 2023, No. 90 (Adj. Sess.), § 1, eff. April 22, 2024.)

• § 1037. Acceptance of inherent risks

  Notwithstanding the provisions of section 1036 of this title, a person who takes part in any sport accepts as a matter of law the dangers that inhere therein insofar as they are obvious and necessary. (Added 1977, No. 119 (Adj. Sess.), § 2, eff. Feb. 7, 1978.)

• § 1038. Skiing off designated ski trails; collision; duty to report; recovery for rescue expenses

  (a) Use of ski area facilities. No ski area, its owners, employees, or agents shall be held responsible for ensuring the safety of or for damages, including injury or death, resulting to persons who utilize the facilities of a ski area to access terrain outside open and designated ski trails. Ski areas shall not be liable for damages, including injury or death, to persons who venture beyond such open and designated ski trails.

  (b) Collision at a ski area.

  (1) Any person who is involved in a collision with a skier at a ski area which results in bodily injury to any party to the collision has a duty to provide his or her name and local and permanent address to the other parties to the collision and shall proceed to the ski area first aid facility and provide that information to the ski area first aid personnel.

  (2) No ski area, its employees, or agents shall be held responsible for ensuring compliance with these duties by any person, nor shall it be liable in any way for a failure to obtain such person’s name or address.

  (c) Civil action to recover. A person who uses the facilities of a ski area to access terrain outside the open and designated ski trails shall be liable in a civil action brought by any person, including a ski area, rescue organization, municipality, or the State, to recover expenses incurred to provide rescue, medical, or other services to such person for circumstances or injuries which resulted from such use. The entity seeking to recover may also recover reasonable attorney’s fees and court costs. No ski area, its owners, agents, or employees, individual, or entity, municipal or otherwise, shall be held liable for any acts or omissions taken in the course of such rescue operations unless such act or omission constitutes gross negligence. (Added 1993, No. 233 (Adj. Sess.), § 88, eff. June 21, 1994.)

• § 1039. Equine activities; acceptance of inherent risks

  (a) As used in this section:

  (1) “Equine” means a horse, pony, mule, or donkey.

  (2) “Equine activity” includes:

  (A) Equine shows, fairs, competitions, performances, or parades that involve any or all breeds of equines and any of the equine disciplines, including dressage, hunter and jumper horse shows, Grand Prix jumping, three-day events, combined training, rodeos, riding, driving, pulling, cutting, polo, steeplechasing, English and western performance riding, endurance trail riding, gymkhana games, and hunting;

  (B) Equine training or teaching activities, or both;

  (C) Rides, trips, or hunts.

  (3) “Equine activity sponsor” means an individual, group, club, organized camp, club, partnership, or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for an equine activity, including pony clubs; 4-H clubs; hunt clubs; riding clubs; school and college-sponsored classes, programs, and activities; therapeutic riding programs; stable and farm owners and operators, instructors, and promoters; or equine facilities, including farms, stables, clubhouses, pony ride strings, fairs, and arenas at which the activity is held.

  (4) “Participant” means any person, whether amateur or professional, who engages in an equine activity, whether or not a fee or other consideration is paid to participate in the equine activity.

  (b) No person shall be liable for an injury to, or the death of, a participant resulting from the inherent risks of equine activities, insofar as those risks are necessary to the equine activity and obvious to the person injured.

  (c)(1) An equine activity sponsor may post and maintain signs which contain the warning notice specified in this subsection. Such signs shall be placed in a clearly visible location in the proximity of the equine activity. The warning notice shall appear on the sign in black letters, with each letter to be a minimum of one inch in height.

  (2) Every written contract entered into by an equine activity sponsor for the providing of professional services, instruction, or the rental of equipment or tack or an equine to a participant, whether or not the contract involves equine activities on or off the location or site of the equine professional’s business, may contain in clearly readable print the warning notice.

  (3) The signs and contracts described in this subsection shall contain the following warning notice:

  WARNING

  Under Vermont Law, an equine activity sponsor is not liable for an injury to, or the death of, a participant in equine activities resulting from the inherent risks of equine activities that are obvious and necessary, pursuant to 12 V.S.A. § 1039. (Added 1995, No. 136 (Adj. Sess.), § 2.)

• § 1040. Eminent domain; restrictions on use; conferring of private benefit; economic development

  (a) Notwithstanding any other provision of law, no governmental or private entity may take private property through the use of eminent domain if the taking is primarily for purposes of economic development, unless the property is taken pursuant to 24 V.S.A. chapter 85 (urban renewal).

  (b) This section shall not affect the authority of an entity authorized by law to use eminent domain for the following purposes:

  (1) transportation projects, including highways, airports, and railroads;

  (2) public utilities, including entities engaged in the generation, transmission, or distribution of electric, gas, sewer and sewage treatment, or communication services;

  (3) public property, buildings, hospitals, and parks; or

  (4) water, wastewater, stormwater, flood control, drainage, or waste disposal projects. (Added 2005, No. 111 (Adj. Sess.), § 1.)

• § 1041. Exercise of rights to free speech and to petition government for redress of grievances; special motion to strike

  (a) A defendant in an action arising from the defendant’s exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the U.S. or Vermont Constitution may file a special motion to strike under this section.

  (b) A special motion to strike under this section shall be filed with the court and served on all parties not more than 60 days after the filing of the complaint. A party may file a response to the motion not more than 15 days after the motion is served on the party. The court may extend the time limits of this subsection for good cause shown.

  (c)(1) The filing of a special motion to strike under this section shall stay all discovery proceedings in the action. Except as provided in subdivision (2) of this subsection, the stay of discovery shall remain in effect until the court rules on the special motion to strike.

  (2) The court, on motion and for good cause shown, may order that limited discovery be conducted for the purpose of assisting its decision on the special motion to strike.

  (d) The court shall hold a hearing on a special motion to strike not more than 30 days after service of the motion unless good cause exists for an extension.

  (e)(1) The court shall grant the special motion to strike, unless the plaintiff shows that:

  (A) the defendant’s exercise of his or her right to freedom of speech and to petition was devoid of any reasonable factual support and any arguable basis in law; and

  (B) the defendant’s acts caused actual injury to the plaintiff.

  (2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

  (f)(1) If the court grants the special motion to strike, the court shall award costs and reasonable attorney’s fees to the defendant. If the court denies the special motion to strike and finds the motion is frivolous or is intended solely to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to the plaintiff.

  (2) Neither the court’s ruling on the special motion to strike nor the fact that it made such a ruling shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by the ruling.

  (g) An order granting or denying a special motion to strike shall be appealable in the same manner as an interlocutory order under Rule 5 of the Vermont Rules of Appellate Procedure.

  (h) This section shall not apply to:

  (1) any enforcement action or criminal proceeding brought by the State of Vermont or any political subdivision thereof; or

  (2) a case involving tortious interference with legally protected health care as provided in section 7302 of this title.

  (i) As used in this section, “the exercise, in connection with a public issue, of the right to freedom of speech or to petition the government for redress of grievances under the U.S. or Vermont Constitution” includes:

  (1) any written or oral statement made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

  (2) any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;

  (3) any written or oral statement concerning an issue of public interest made in a public forum or a place open to the public; or

  (4) any other statement or conduct concerning a public issue or an issue of public interest that furthers the exercise of the constitutional right of freedom of speech or the constitutional right to petition the government for redress of grievances. (Added 2005, No. 134 (Adj. Sess.), § 2; amended 2023, No. 14, § 2, eff. May 10, 2023.)

• § 1042. Certificate of merit

  (a) No civil action shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after February 1, 2013, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action files a certificate of merit simultaneously with the filing of the complaint. In the certificate of merit, the attorney or plaintiff shall certify that he or she has consulted with a health care provider qualified pursuant to the requirements of Rule 702 of the Vermont Rules of Evidence and any other applicable standard, and that, based on the information reasonably available at the time the opinion is rendered, the health care provider has:

  (1) described the applicable standard of care;

  (2) indicated that based on reasonably available evidence there is a reasonable likelihood that the plaintiff will be able to show that the defendant failed to meet that standard of care; and

  (3) indicated that there is a reasonable likelihood that the plaintiff will be able to show that the defendant’s failure to meet the standard of care caused the plaintiff’s injury.

  (b) A plaintiff may satisfy this requirement through multiple consultations that collectively meet the requirements of subsection (a) of this section.

  (c) A plaintiff must certify to having consulted with a health care provider as set forth in subsection (a) of this section with respect to each defendant identified in the complaint.

  (d) Upon petition to the clerk of the court where the civil action will be filed, an automatic 90-day extension of the statute of limitations shall be granted to allow the reasonable inquiry required by this section.

  (e) The failure to file the certificate of merit as required by this section shall be grounds for dismissal of the action without prejudice, except in the rare instances in which a court determines that expert testimony is not required to establish a case for medical malpractice.

  (f) The requirements set forth in this section shall not apply to claims where the sole allegation against the health care provider is failure to obtain informed consent. (Added 2011, No. 171 (Adj. Sess.), § 24a, eff. Feb. 1, 2013.)

• § 1043. Nonconsensual removal of or tampering with a condom

  (a) No person shall intentionally and without consent remove or tamper with a condom prior to or during a sexual act in a manner likely to render it ineffective for its common purpose when consent to the sexual act is given by the other person with the explicit understanding that a condom would be used.

  (b) A person harmed by a violation of subsection (a) of this section may bring an action in the Civil Division of the Superior Court for compensatory damages, punitive damages, and reasonable costs and attorney’s fees.

  (c) An action under subsection (b) of this section shall be subject to the statute of limitations in section 511 of this title. (Added 2023, No. 100 (Adj. Sess.), § 1, eff. July 1, 2024.)

• Subchapter 003: PLEADINGS; PARTIES AND CAUSES OF ACTION

• §§ 1071-1075. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

• § 1076. Release of claim for personal injury or death—disavowal of agreement

  An agreement entered into by a person or his or her legal representative within 15 days after personal injury to him or her or his or her death or personal injury or death of his or her spouse or child, which may adversely affect his or her estate’s right to compensation for the personal injury or death, may be disavowed by such person or his or her legal representative within three years after making the agreement. When such an agreement has been disavowed, it may not be used in whole or in part in any subsequent proceeding. (1961, No. 269, § 1, eff. Aug. 1, 1961.)

• § 1077. Tender of compensation

  When an agreement is disavowed, the claimant or his or her legal representative shall tender any consideration received to the person who paid or delivered the same. (1961, No. 269, § 2, eff. Aug. 1, 1961.)

• Subchapter 004: PLEADINGS; AMENDED AND SUPPLEMENTAL

• §§ 1131, 1132. Repealed. 1971, No. 185 (Adj. Sess.), § 237, eff. March 29, 1972.

• § 1133. Repealed. 1959, No. 261, § 68.

• Subchapter 005: PRACTICE

• § 1161. Repealed. 1967, No. 311 (Adj. Sess.), § 3, eff. March 22, 1968.