Volume 165 — Vermont Reports

<bold>1. Judgments — Judgment Notwithstanding Verdict — Generally</bold> <block_quote> A motion for judgment as a matter of law raises the same legal questions as a motion for directed verdict and is treated in a similar manner, such that if there is any evidence reasonably and fairly supporting the nonmoving party's claim, the motion should be denied and the case should go to the jury; furthermore, the weight of the evidence and the credibility of the witnesses are questions for the jury, and on appeal all conflicts are to be resolved against the moving party. V.R.C.P. 50.</block_quote><page_number>Page 434</page_number> <bold>2. Trespass — Trespass to Realty — Element of Unlawful Entry</bold> <block_quote> A person who intentionally enters or remains upon land in the possession of another without a privilege to do so is subject to liability for trespass, but there is no recovery for trespass where the possessor has consented to the conduct; thus a process server may peaceably enter a dwelling by walking through an open door without invitation or with the consent of the possessor without being liable for trespass.</block_quote> <bold>3. Trial — Civil Cases — Jury Instructions — Discretion of</bold> <bold>Court</bold> <block_quote> A party who claims error in a jury charge has the burden of establishing both that the charge was wrong and that prejudice resulted from that error, and on appeal, in reviewing the jury instructions, the court looks at them in their entirety, and if the instructions are true to the spirit of the law and the jury has not been misled, the instructions stand.</block_quote> <bold>4. Trial — Civil Cases — Jury Instructions — Particular Cases</bold> <block_quote> Invasion of privacy is a substantial, intentional intrusion upon the solitude or seclusion of another, or upon his private affairs or concerns, which would be highly offensive to a reasonable person, and where plaintiffs' cause of action merely alleged no more than counts of trespass and negligence and where plaintiffs requested a jury instruction without specifying the elements of invasion of privacy, the court did not err in refraining from instructing the jury as to an invasion of privacy charge.</block_quote>

<bold>1. Labor — Practice and Procedure — Review of Labor Relations</bold> <bold>Board's Decisions and Orders</bold> <block_quote> Interpretations of collective bargaining agreements are within the particular expertise of the Labor Relations Board, and the court reviews such interpretations with great deference to the board's expertise, presuming that the board's actions are correct and reasonable and upholding the board's order if the findings of fact, taken as a whole, justify the board's ultimate conclusion.</block_quote> <bold>2. Statutes — Maxims and Rules of Construction — Legislative</bold> <bold>History or Intent</bold> <block_quote> State Employees Labor Relations Act, <cross_reference>3 V.S.A. §§ 901</cross_reference>-<cross_reference>1007</cross_reference>, does not manifest a legislative intent to distinguish duty of the Vermont State Employees' Association (VSEA) to negotiate agreements from its other duties, such as its duty to represent state employees in classification grievances, and by the plain language of the Classification of State Personnel Act, <cross_reference>3 V.S.A. §§ 309</cross_reference>-<cross_reference>331</cross_reference>, classification grievances fall within VSEA's duties as exclusive bargaining agent. <cross_reference>3 V.S.A. §§ 309</cross_reference>, <cross_reference>901</cross_reference>.</block_quote><page_number>Page 446</page_number> <bold>3. Labor — Arbitrability of Disputes — Collective Bargaining</bold> <bold>Agreements</bold> <block_quote> Traditional principles of contract law govern the construction of collective bargaining agreements, and when an agreement is clear and unambiguous, the plain meaning of the agreement governs its interpretation.</block_quote>

<bold>Divorce — Division of Property — Factors Considered</bold> <block_quote> Under <cross_reference>15 V.S.A. § 751</cross_reference>, the court may consider the contribution of a spouse to the depreciation in value of property, and where the wife used her revoked power of attorney to refinance the marital home and spent all the proceeds from the financing, the court properly considered this conduct in making its property disposition; however, the court cannot award more of the marital estate than exists; thus, where the evidence failed to demonstate that the amount of the money judgment as part of the property settlement awarded actually existed, the property settlement and maintenance award was vacated. <cross_reference>15 V.S.A. § 751</cross_reference>.</block_quote>

<bold>1. Judgments — Summary Judgment — Standard for Granting</bold> <block_quote> Summary judgment should be granted when, taking all allegations made by the nonmoving party as true and giving the nonmoving party the benefit of all doubts and inferences, there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. V.R.C.P. 56.</block_quote> <bold>2. Labor — Unfair Treatment and Discrimination — Generally</bold> <block_quote> In any handicapped-discrimination claim brought under the Fair Employment Practices Act (FEPA), the first issue is whether the plaintiff is a handicapped individual, defined by <cross_reference>21 V.S.A. § 495d</cross_reference>(5)(A) as a person who "has a physical or mental impairment which substantially limits one or more major life activities." <cross_reference>21 V.S.A. § 495d</cross_reference>.</block_quote><page_number>Page 505</page_number> <bold>3. Labor — Unfair Treatment and Discrimination — Particular</bold> <bold>Cases</bold> <block_quote> In a handicapped-discrimination claim brought against defendant employer, where plaintiff's impairment, ulcerative colitis, lasted for at least five months and was the result of a long-term illness that required three separate surgeries, it could not be said as a matter of law that plaintiff's disability was too fleeting to be covered by federal law. <cross_reference>21 V.S.A. § 495d</cross_reference>.</block_quote> <bold>4. Labor — Unfair Treatment and Discrimination — Generally</bold> <block_quote> To make a successful discrimination claim, a plaintiff must show not only that she was a handicapped individual, but that she was a "qualified handicapped individual" entitled to the protection of federal law; a "qualified handicapped individual" is a person who can perform the "essential functions of the job . . . with reasonable accommodation to his handicap." <cross_reference>21 V.S.A. § 495d</cross_reference>.</block_quote> <bold>5. Labor — Unfair Treatment and Discrimination — Generally</bold> <block_quote> In a handicapped-discrimination claim brought against defendant employer, defendant's position that plaintiff lost her rights under federal law because she was covered under a collective bargaining agreement contradicted strong public policy supporting state anti-discrimination laws; furthermore, the collective bargaining agreement gave plaintiff no protection from discrimination on the basis of her disability. Her right was an independent creation of state law, and states can confer such nonnegotiable rights on employees. <cross_reference>21 V.S.A. § 495d</cross_reference>.</block_quote>

<bold>Parent and Child — Custody — Awarding Custody; Factors Generally</bold> <block_quote> In a child custody dispute, the family court improperly awarded custody to the father on the grounds that, given the mother's work schedule, the child would have more total time with a parent and less time in day care if the father were awarded custody, because the court's conclusions, which declared that the mother's role as caregiver is significant and the quality of the child's relationship with the primary care provider should be given great weight unless the primary custodian is unfit,<page_number>Page 526</page_number> and which determined that there existed a more substantial bond between mother and son, stronger than that of son and father, militated against or failed to support a change in custodial status quo. <cross_reference>15 V.S.A. § 665</cross_reference>.</block_quote>

<bold>1. Workers' Compensation — Compensation — Duration</bold> <block_quote> Under the workers' compensation law, a claimant is entitled to temporary disability compensation until reaching a medical end result or successfully returning to work, and the determination of medical end result is a question of fact for the commissioner; the proper test when determining the "medical end result" is whether the treatment contemplated at the time it was given was reasonably expected to bring about significant medical improvement, and the fact that some treatment, such as drug or physical therapy, continues to be necessary does not preclude a finding of "medical end result" if the underlying condition causing the<page_number>Page 530</page_number> disability has become stable and if further treatment will not improve that condition. <cross_reference>21 V.S.A. 642</cross_reference>.</block_quote> <bold>2. Workers' Compensation — Proceedings to Secure Compensation —</bold> <bold>Attorney Fees</bold> <block_quote> In a workers' compensation appeal to the supreme court, a claimant is entitled to reasonable attorney's fees if he prevails. <cross_reference>21 V.S.A. § 678</cross_reference>.</block_quote>