Two by Two

By Andy Delaney

This post covers two weeks' worth of opinions, which—thankfully for my Saturday plans—only adds up to four this time.  

Last week, SCOV first grappled with a privacy nightmare. 

Bill Simmon—an employee at the time of Vermont Community Access Media (VCAM)—secretly filmed two sisters (at 17 and 19) while they were changing clothes at the station. Simmon then posted the videos online where they've been viewed over a million times. As the kids say, WTAF? 

Back in 2012, Simmon was working for VCAM and teaching film classes at Community College of Vermont. He invited one sister, who was his student, to film a commercial at VCAM's studio, telling her to bring different outfits and that she could bring a friend. What the sisters didn't know was that Simmon had installed hidden VCAM cameras in the utility room where he told them to change clothes. He recorded them changing into five-to-seven different outfits. Creepy as heck, right? 

To quote Billy Mays, "But wait. There's more!"

Here's where the kids might throw in a "FFS." Not only did Simmon do something so creepy that it's the stuff nightmares are made of, he also posted the videos on pornography forums, and they ended up on sites like Pornhub where they were viewed millions of times. The sisters didn't learn about this violation until 2018—six years later—when a friend told them after recognizing them in one of the videos.

Here's where VCAM's negligence becomes crystal clear: In 2011, a VCAM manager found child pornography on a hard drive that Simmon had used. The manager was "dead sure" Simmon had put the images there—photos of naked girls he estimated to be eleven or twelve years old. So what did VCAM do with this information? Nada. They didn't report it to police, didn't investigate further, and they let Simmon continue working there until 2018. 

So. Jury trial and a substantial verdict against both VCAM and Simmon. 

VCAM appeals. Plaintiffs cross-appeal on joint-and-several liability. 

First off, VCAM contends that the child pornography evidence should have been excluded as too prejudicial. SCOV says "nice try" noting VCAM waived this objection by stipulating to the admission of the police interview recording that contained this information.

Next, VCAM argues that under Vermont law, you can't recover emotional distress damages in negligence cases without physical injury. VCAM notes that PTSD doesn't qualify as "substantial bodily injury or sickness" to justify emotional distress damages.

The majority takes an end-run around this problem. While the sisters' PTSD, nightmares, panic attacks, and even self-harm aren't sufficient "physical injuries" under Vermont law (editor's note: I'm SMH here too), the majority reasons that emotional distress damages are available because VCAM's negligent supervision claim was based on Simmon's underlying intentional torts—invasion of privacy and intentional infliction of emotional distress—both of which allow pure emotional distress damages. Essentially, if the employee commits a tort that allows emotional distress damages, so can the employer for negligently supervising that employee.

VCAM argues that the $1.75 million awards to each sister are duplicative and excessive. SCOV disagrees, noting jurors could reasonably have found each defendant responsible for half of the sisters' total $3.5 million in damages. Given the ongoing nature of the harm—these videos will likely never disappear from the internet—SCOV finds the awards reasonable.

The sisters want VCAM to be jointly and severally liable for Simmon's share of damages too. But SCOV concludes they waived this argument by not objecting to the jury instructions or verdict form that allowed for separate liability.

Chief Justice Reiber, joined by Justice Waples concurs. The concurrence argues that Vermont's law needs to catch up with our understanding of PTSD. PTSD is a serious, medically recognized disorder that can disrupt every aspect of a person's life, yet Vermont law creates obstacles for recovery. The concurrence calls for recognizing PTSD as an independent basis for tort recovery, noting that "mental health deserves the same respect" as physical injuries. 

So, this one gets affirmed, and the concurrence notes the need to modernize Vermont law. Kilburn v. Simmon, 2025 VT 32.

The second June 20th opinion brings us to the Northeast Kingdom. Jared was a developmentally disabled adult who died from a pulmonary embolism caused by undiagnosed testicular cancer. Dad (administrator of the estate and co-guardian) noticed Jared wasn’t looking so hot after a visit, called the residential provider, and Jared was taken to his doctor. No one caught the cancer. Jared died the next day.

The estate sued, settled with the doctor and the residential provider, and only Northeast Kingdom Human Services (NKHS) was left at trial. The main contention? NKHS didn’t do enough to oversee Jared’s care. NKHS countered with, “Hey, maybe dad was negligent too,” and the trial court let the jury hear about comparative negligence.

The estate objected—wrong party, wrong instructions, wrong evidentiary rulings, and, for good measure, noted that the jury came back with a defense verdict way too fast (just over an hour after a six-day trial).

SCOV does agree that some of the rulings were erroneous. But SCOV reasons that even if the trial court mixed up some concepts and made a couple of errors, none of those errors require reversal. The jury never found NKHS negligent, so they never even got to comparative negligence. As for the quick verdict? Nothing says a jury has to take time. So, the verdict stands. SCOV affirms. Shaffer v. Northeast Kingdom Human Services, Inc., 2025 VT 34.

Yesterday's batch of two starts with an environmental dispute with a modern twist—PFAS, those "forever chemicals" that have jumped into the public awareness are at the center of this one. Plaintiffs own a farm next to Burlington International Airport. Decades of firefighting foam use at the airport (thanks, Air National Guard) left their soil and water loaded with PFAS—at levels six and a half times the state standard. Not great for the cows, or anyone else.

Plaintiffs sued Burlington, claiming negligence, trespass, nuisance, a "taking," and a few other things. Burlington tried to shift the blame to the United States and the Guard and throws in "we’re immune!" The trial court mostly agreed and tossed the case for not joining the feds as well as the municipal immunity grounds. Y'all know the math by now. 

SCOV says: Not so fast. Sure, you can’t sue for the Guard’s actual firefighting. So, count one gets the boot. But most of the other claims (trespass, nuisance, etc.) are about Burlington's failure to keep PFAS-laced water from running off its property and onto the plaintiffs' land. For those claims, you don't need the Guard or the feds in the suit. Vermont law lets you pick your defendant, and there's no rule requiring every possible wrongdoer to be at the table. So, dismissal reversed for Counts 2-5 and 7.

On municipal immunity, SCOV reasons the trial court got a little too cozy with the "firefighting is always governmental" argument. Running an airport is often a proprietary (not immune) function, especially when it brings in revenue. The record's too thin to decide now, so back to the trial court to sort out whether municipal immunity applies. Belter v. City of Burlington, 2025 VT 35.

Our final case for this two-week period deals with the Vermont Innocence Protection Act. 

We're going to take a little detour. Have you been thinking about going to law school? Have you been to law school? This silly video came out after I'd already graduated and I probably wouldn't have listened anyway, but it's still funny to this day. One of the lines—you'll know which one once you watch the video—is particularly poignant here. 

We now return to our regularly scheduled programming. Plaintiff spent eight years in prison before his conviction was vacated for ineffective assistance of counsel. So, he sued the State under the Vermont Innocence Protection Act (VIPA), arguing he deserved compensation for his lost years. The State argued that VIPA only applies to DNA-based exoneration. The trial court agreed and dismissed the case. 

Plaintiff appeals. 

First, the State tries to get the whole thing tossed because Reynolds died. It argues the claim doesn't survive. SCOV reasons that wrongful imprisonment is a bodily injury, so the estate can pursue the case.

This one is all about statutory interpretation. VIPA lets you sue if you’re "exonerated pursuant to this chapter"—and "this chapter," says SCOV, means exoneration through postconviction DNA testing, not just any reason for vacating a conviction. Plaintiff was freed due to ineffective assistance of counsel, not because DNA proved him innocent. So, VIPA does not apply. The dismissal gets affirmed. Reynolds v. State, 2025 VT 34.