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Legal Memorandum: Elements of Negligence in VT

Issue: Under the law of Vermont, what are the general elements of negligence?

Area of Law: Education Law, Personal Injury & Negligence
Keywords: Negligence; Breach of duty; Injury
Jurisdiction: Vermont
Cited Cases: 169 Vt. 118
Cited Statutes: None
Date: 12/01/2009

Common law courts developed the tort of negligence in part to compensate injured people for the carelessness or recklessness of others; today, it is a theory of liability that may be applicable to virtually all types of careless conduct.  See Hay v. Med. Ctr. of Vt., 496 A.2d 939 (Vt. 1985).  Because “negligence” is such a broad, all-encompassing theory of liability, under the negligence umbrella there are a large number of sub-theories that are often used to analyze more specific, frequently recurring behaviors that cause injury.  Thus, subsumed within the broad tort category of negligence are sub-categories or sub-theories generally known, for example, as “negligent entrustment,” “negligent supervision,” “malpractice,” “dangerous instrumentalities,” and the like.

The Vermont Supreme Court frequently refers to—and often adopts—the various Restatement sections that set forth the principles applicable to particular negligence sub-theories of liability.  See, e.g., Turner v. Roman Catholic Diocese of Burlington, Vt., 2009 VT 101 at ¶ 51 n.10 (Vt. Oct. 9, 2009) (“[I]n Brueckner v. Norwich University, 169 Vt. 118, 126, 730 A.2d  1086, 1092 (1999) we adopted the cause of action of negligent supervision based on Restatement (Second) of Agency § 213 1958.… “); Doe v. Forrest, 853 A.2d 48, 56 (Vt. 2004) (“We have routinely adopted provisions of the Restatement (Second) of Agency as reflecting the common law of Vermont.”); Knight v. Rower, 742 A.2d 1237, 1242 (Vt. 1999) (referring to Restatement (Second) Torts §§ 314A and 320 regarding the duty to control the conduct of third persons when certain special relationships […]

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