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In 2017, defendant Robert Scales was riding as a passenger in the back seat of a car pulled over for speeding. The officer was suspicious of criminal activity because he knew that the road was a regular drug- trafficking route between New York and Burlington, Vermont. The car had New York license plates, and the occupants said they were headed to Burlington. The officer detected a faint odor of burnt marijuana and asked who had been smoking. The front-seat passenger said he had smoked marijuana earlier in the day, but not in the car. The officer then asked for consent to search the car for illegal drugs. The officer explained that the occupants could deny consent, in which case he would walk around the car with his drug- detection dog. He described his dog as an “aggressive alert dog” that might scratch the car and damage it during the search. He informed them that he could also request a search warrant, which the court might or might not grant. The driver agreed to allow the search and signed a written consent form; the other occupants, including defendant, neither objected to the search nor gave affirmative consent. The occupants got out of the car prior to the search. The officer asked whether there was anything in the car that anyone did not want searched, and the occupants did not identify anything. The officer then searched the car, including a bag in the trunk. In the bag, the officer found white powder wrapped in a bag and several wax bundles, which he believed to be cocaine and heroin. The bag also contained a parking ticket associated with the driver, who was the only woman in the car, and female clothing. All three occupants denied that the items were theirs. They were all arrested and charged with possession of heroin and cocaine and heroin trafficking. At some point after arrest, a search warrant was obtained for the containers in the vehicle. Defendant appealed the trial court’s denial of his motion to suppress evidence found during the stop of the car, and he appealed denial of his motion to dismiss for lack of a prima facie case. Based on the evidence actually presented, the Vermont Supreme Court agreed with defendant that there was insufficient evidence to show he had any connection with the drugs except for his presence in the car. "If anything, the evidence presented at the hearing—which included testimony that the bag also contained female clothing and a parking ticket associated with the driver—tended to show that the bag and its contents did not belong to defendant. The permissive inference alone, or taken together with the court’s findings, were insufficient to establish guilt or an element of the offense." View "Vermont v. Scales" on Justia Law

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N.L. was born in August 2014. In January 2016, she was taken into state custody because both parents were using illicit substances, father was facing jail time on a charge alleging domestic abuse against mother, and mother was unable to care for the child due to her drug addiction and homelessness. N.L. spent several months in foster care. A conditional custody order (CCO) returned N.L. to mother’s care after mother completed a substance-abuse program, and they resided for several months in a residential treatment program at Lund Family Center. The CCO remained in effect until February 27, 2017, when the Department for Children and Families (DCF) closed the case. The underlying case was initiated based on an incident that occurred in August 2017, at which time DCF was investigating reports of drug use and domestic violence in the home. The family division of the superior court granted a petition to terminate mother’s parental rights to her child, N.L., but denied the petition concerning father. Mother appealed the termination of her parental rights, and N.L. appealed the court’s decision not to terminate father’s parental rights. After careful review of the trial court record, the Vermont Supreme Court affirmed termination of mother’s parental rights and reversed the court’s order declining to terminate father’s parental rights. The matter was remanded for the limited purpose of directing the family division to grant the petition to terminate father’s parental rights. View "In re N.L." on Justia Law

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Plaintiff Matthew Ziniti sued defendant New England Central Railroad, Inc. after he was seriously injured in a train-car collision. Plaintiff appealed the trial court’s partial summary judgment ruling and the ensuing jury verdict for defendant, arguing the trial court erred by: (1) granting defendant summary judgment precluding him from presenting evidence that defendant’s failure to place a crossbuck on the right side of the road at the site of the railroad crossing, or to take steps to ensure that an “advance warning” sign was present, caused or contributed to the collision; (2) denying a request for the jurors to view the crossing where the accident occurred; (3) denying his motion for a directed verdict on the railroad’s negligence on account of its violation of a safety statute relating to maintenance of the railroad’s right of way; and (4) denying his request for an instruction on the sudden emergency doctrine. After reviewing the trial court record, the Vermont Supreme Court rejected each of these arguments and, accordingly, affirmed the judgment in favor of defendant. View "Ziniti v. New England Central Railroad, Inc." on Justia Law

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Plaintiff Jay Bernasconi appealed the grant of summary judgment to defendant City of Barre. Plaintiff fell into a hole and injured his knee while visiting family graves at Hope Cemetery, which the City owned. He contends that the City’s negligent maintenance of the Cemetery caused his injury. The Vermont Supreme Court concluded plaintiff could not establish that any breach of the City’s duty of care caused his injuries, and affirmed summary judgment against him. View "Bernasconi v. City of Barre: Hope Cemetery" on Justia Law

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During road-construction operations, a truck owned or operated by Eustis Cable Enterprises, LTD, which was participating in the construction activity, struck and killed a flagger for Green Mountain Flaggers. The truck hit the flagger when the driver began backing it up in the southbound breakdown lane on Route 7 in Middlebury, Vermont. In response to the accident, the Commissioner of Labor investigated and ultimately cited Eustis for two alleged violations of 29 C.F.R. 1926.601: a failure to ensure that the vehicle’s backup alarm was audible above the surrounding noise level; and a failure to assure the safety devices were in a safe condition at the beginning of each shift. The Commissioner assessed $11,340 in fines ($5670 for each violation). Eustis appealed the civil division’s affirmance of the Vermont Occupational Safety and Health Act (VOSHA) review board’s determination that Eustis failed to meet VOSHA’s motor-vehicle requirements and the resulting assessment of a fine for the violations. The Vermont Supreme Court concluded the evidence and findings did not support the board’s conclusion that Eustis was on notice of the violation and accordingly reverse and strike the citation alleging a violation of 29 C.F.R. 1926.601(b)(14) and associated penalty. View "Commissioner of Labor v. Eustis Cable Enterprises, LTD" on Justia Law

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Plaintiff Garrett Cornelius filed suit alleging invasion of privacy by newspaper, the Chronicle, after newspaper published two articles containing information about him. In a series of orders, the trial court granted newspaper’s motions to strike the claims under the anti-SLAPP statute and awarded newspaper a small fraction of the attorney’s fees it sought. Plaintiff appealed the orders striking his claims, and the newspaper appealed the amount of attorney’s fees. Consolidating the cases for review, the Vermont Supreme Court concluded the claims were properly stricken under the anti-SLAPP statute, but the court erred in limiting the attorney’s fees award. View "Cornelius v. The Chronicle, Inc." on Justia Law

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Defendant Cory Jones appealed his conviction by jury for dispensing less than 200 milligrams of heroin. The trial court sentenced defendant to a minimum of 16 months and a maximum of 36 months in prison, with credit for 302 days in pre-trial detention. He appealed the denial of his motion for judgment of acquittal and his sentence. The Vermont Supreme Court determined the State’s case relied, to a degree, on circumstantial evidence. The Court determined the trial court record contained significant evidence that supported the inference defendant dispensed heroin to a police informant during a "controlled purchase," therefore the trial court did not err in denying his motion for judgment of acquittal. On appeal of his sentence, defendant argued the trial court did not account for the nature and circumstances of the crime. Finding no reversible error, the Supreme Court affirmed the trial court's judgment. View "Vermont v. Jones" on Justia Law

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Plaintiff Gregory Zullo filed a civil rights action against the State of Vermont for alleged violations of his state constitutional rights arising from the stop, seizure and search of his vehicle. The civil division of the superior court granted summary judgment to the State, concluding that although damages may be obtained in an implied private right of action directly under Article 11, in this case neither the stop, the exit order, nor the seizure and search of plaintiff’s vehicle violated Article 11’s constraints against governmental searches and seizures. The issues this appeal presented for the Vermont Supreme Court's review were: (1) whether Article 11 provided a self-executing right of action for damages; (2) whether the Vermont Tort Claims Act (VTCA) governed any such action and, if not, whether the common law doctrine of sovereign immunity shielded the State from liability; (3) if the action is neither governed by the VTCA nor barred by sovereign immunity, whether the Supreme Court should impose any limitations on obtaining damages against the State; and (4) assuming a damage remedy exists and plaintiff can potentially overcome any other barriers to obtaining damages against the State, whether the stop, exit order, and/or seizure and search of plaintiff’s vehicle violated plaintiff’s rights under Article 11, thereby entitling him to seek such relief. The Supreme Court concluded an implied private right of action for damages was available directly under Article 11, that the VTCA did not apply to plaintiff’s suit alleging a constitutional tort, and that the common law doctrine of sovereign immunity did not bar such an action against the State, but that damages could be obtained only upon a showing that a law enforcement officer acting within the scope of the officer’s duties either acted with malice or knew or should have known that those actions violated clearly established law. Furthermore, the Court concluded that although the exit order would not have violated Article 11 had the initial stop been lawful, both the stop and the warrantless seizure and subsequent search of plaintiff’s vehicle violated Article 11. In light of these conclusions, the Supreme Court reversed the grant of summary judgment, and reversed dismissal of one of plaintiff’s counts in an earlier decision. The matter was remanded for further proceedings. View "Zullo v. Vermont" on Justia Law

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Appellant Rainforest Chocolate, LLC appealed the grant of summary judgment motion in favor of appellee Sentinel Insurance Company, Ltd. Rainforest was insured under a business-owner policy offered by Sentinel. In May 2016, Rainforest’s employee received an email purporting to be from his manager. The email directed the employee to transfer $19,875 to a specified outside bank account through an electronic-funds transfer. Unbeknownst to the employee, an unknown individual had gained control of the manager’s email account and sent the email. The employee electronically transferred the money. Shortly thereafter when Rainforest learned that the manager had not sent the email, it contacted its bank, which froze its account and limited the loss to $10,261.36. Rainforest reported the loss to Sentinel. In a series of letters exchanged concerning coverage for the loss, Rainforest claimed the loss should be covered under provisions of the policy covering losses due to Forgery, for Forged or Altered Instruments, and for losses resulting from Computer Fraud. Sentinel denied coverage. In a continuing attempt to obtain coverage for the loss, Rainforest also claimed coverage under a provision of the policy for the loss of Money or Securities by theft. Sentinel again denied coverage, primarily relying on an exclusion for physical loss or physical damage caused by or resulting from False Pretense that concerned “voluntary parting” of the property—the False Pretense Exclusion. Finding certain terms in the policy at issue were ambiguous, the Vermont Supreme Court reversed summary judgment and remanded for the trial court to consider in the first instance whether other provisions in the policy could provide coverage for Rainforest's loss. View "Rainforest Chocolate, LLC v. Sentinel Insurance Company, Ltd." on Justia Law

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M.C. was taken into the custody of the Department for Children and Families (DCF) in 2014 when he was six years old. He was adjudicated as a child in need of care or supervision. In January 2018, M.C.’s parents voluntarily relinquished their parental rights in him. DCF had custody of M.C. In this appeal, the issue presented to the Vermont Supreme Court related to 33 V.S.A. section 5926, which provided neglected or unmanageable children subject to the Interstate Compact on the Placement of Children the right to a hearing before being placed out-of-state. The trial court concluded that only juveniles whose parents’ rights had not yet been terminated were entitled to a hearing under section 5926. Because M.C. did not fall within this group, the court denied his request for a hearing. M.C. appealed, arguing that this interpretation violated his state and federal constitutional rights, the remedy for which was to afford all children the right to a hearing under section 5926. The State agreed M.C. was entitled to a hearing; therefore, the Supreme Court did not reach M.C.’s constitutional argument because it agreed with the State that the plain language of 5926 afforded all neglected and unmanageable children the right to a hearing before being placed out of state. The Court therefore reversed the trial court’s decision and remanded for a hearing. The Court also granted the State’s unopposed request to preserve the status quo during the remand proceedings. Unless otherwise ordered, M.C. remained in his then-current out-of- state placement pending the trial court’s decision on remand. View "In re M.C., Juvenile" on Justia Law

Posted in: Family Law