Shaffer v. Northeast Kingdom Human Services, Inc.: 2025 VT 31 – A New Limit on “Empty-Chair” Comparative Negligence in Vermont

Introduction

In Shaffer v. Northeast Kingdom Human Services, Inc., the Vermont Supreme Court addressed a series of trial-level rulings in a wrongful-death action stemming from the sudden death of Jared T. Shaffer, a 29-year-old developmentally disabled adult. The Estate alleged that Northeast Kingdom Human Services (“NKHS”)—the Designated Agency administering Jared’s Medicaid waiver—negligently failed to ensure adequate medical monitoring which could have detected his metastatic testicular cancer. Although the jury ultimately returned a defense verdict, the Estate challenged:

• the trial court’s refusal to strike NKHS’s affirmative defense of comparative negligence, which pointed the finger at Jared’s father (Daniel Shaffer) even though he was not a party except in his representative capacity;
• allegedly confusing jury instructions;
• exclusion of testimony concerning a master grant agreement and a state audit; and
• the “too-quick” deliberations of the jury.

While the Supreme Court affirmed the verdict, it issued important clarifications on Vermont’s comparative-negligence framework—most notably that fault may not be allocated to non-parties (the so-called “empty-chair” defense) absent joinder, and that a party acting solely in a representative capacity is not automatically a potential tortfeasor for allocation purposes. The decision therefore sets a new procedural and substantive guardrail for litigants seeking to reduce liability by attributing negligence to absent actors.

Summary of the Judgment

The Court (Reiber, C.J.) held:

1. The trial court erred in conflating Daniel Shaffer’s dual roles—administrator of the Estate (the actual plaintiff) and co-guardian/father (a potential comparative tortfeasor)—but the error was ultimately harmless because the jury never reached comparative fault after finding NKHS not negligent.
2. Although disfavored, the trial court did not abuse its discretion in retaining the comparative-negligence defense through trial, given undeveloped factual issues.
3. Any mis-labeling of “plaintiff” in the final written charge was invited error and therefore unreviewable.
4. Exclusion of testimony on the master grant agreement and the 2015 audit was within the court’s discretion because the corporate representative lacked personal knowledge and no proper foundation was laid.
5. The one-hour deliberation was not inherently suspect, and the evidence reasonably supported the jury’s defense verdict.

Accordingly, the judgment for NKHS stands, but the opinion explicitly reiterates that Vermont’s comparative-negligence statute “suggests that only those joined in the same action should be considered in apportioning damages.”

Analysis

1. Precedents Cited

• Langlois v. Town of Proctor, 2014 VT 130 – Described the evolution from contributory to comparative negligence and emphasised that the statute contemplates comparing the negligence of parties.
• Plante v. Johnson, 152 Vt. 270 (1989) – Previously signalled that §1036 “provides for apportionment among defendants,” foreshadowing today’s stronger pronouncement against empty-chair allocation.
• Villa v. Heilmann, 162 Vt. 543 (1994) – Demonstrated that an allegedly erroneous comparative-fault instruction is harmless if the jury never reaches that interrogatory.
• Lunsford v. United States, 570 F.2d 221 (8th Cir. 1977) – Cited for the principle that motions to strike defenses are generally disfavoured if factual issues remain.
• McCrea v. State, 138 Vt. 517 (1980) – Confirmed no minimum time for jury deliberations.

2. The Court’s Legal Reasoning

a. Comparative Negligence Against Non-Parties
The core analytical strand involves the proper scope of 12 V.S.A. §1036. The Court:

• Recognised that §1036 refers to “plaintiff or plaintiff’s legal representative” solely for purposes of standing, not for attributing comparative fault to an entirely separate individual in a representative role.
• Stated that allowing allocation to a non-party contravenes Plante’s reading that damages are apportioned “among defendants.”
• Labelled NKHS’s tactic as an “empty-chair” defense more characteristic of jurisdictions that statutorily permit designation of non-parties (e.g., Colorado, Arizona, Kentucky), which Vermont does not.

Because the trial court had merged the representative with the individual, it technically erred; yet, because the jury never had occasion to apply comparative fault, the Estate suffered no prejudice. Nonetheless, the Supreme Court’s discussion lays down a precedential caution: future trial courts must prevent attribution of fault to non-joined persons.

b. Jury Instruction Errors and Harmlessness
The trial court originally used “Daniel Shaffer” instead of “Estate of Jared Shaffer.” After objection, most references were corrected. The remaining stray caption, while sloppy, was not grounds for reversal because:

• The Estate expressly agreed to the final charge (“invited error”).
• The verdict never reached the comparative-fault interrogatory, eliminating causal prejudice.

c. Evidentiary Discretion
The Court reaffirmed Rule 602’s personal-knowledge requirement and Rule 701’s confines on lay opinion. Even though the witness had been designated under V.R.C.P. 30(b)(6) for deposition, he was still a lay witness at trial. Without personal knowledge, testimony about the grant agreement and audit would be speculative. Moreover, counsel abandoned the audit line of questioning before any definitive exclusionary ruling, precluding appellate review.

d. Speed of Jury Deliberations
Drawing on Morrill and McCrea, the Court repeated that the law sets no minimum deliberation time; strength of the evidence determines length.

3. Impact of the Judgment

• Comparative Fault Doctrine. Litigants can no longer presume they may blame a non-party guardian, parent, or professional unless that actor is formally added as a defendant. Trial judges must scrutinise pleadings and jury instructions to ensure that only parties appear on the verdict form.
• Estate Litigation. Where a personal representative is the named plaintiff, defendants may not conflate the representative’s individual conduct with the Estate’s comparative fault. This clarity protects wrongful-death beneficiaries from reduction based on alleged negligence of a non-party family member.
• Designated Agencies and Human-Services Providers. Although NKHS prevailed factually, the opinion delineates their duties: coordinating, not providing, medical care. Future plaintiffs must craft negligence theories accordingly.
• Trial Practice. Counsel must lay foundation before introducing third-party audits or grant documents and should be prepared to qualify corporate representatives as experts if broader testimony is expected.

Complex Concepts Simplified

• Comparative Negligence (§1036): A statutory scheme allowing recovery even if plaintiff is partly at fault; damages are reduced proportionally. Vermont follows a party-only approach—fault is compared among those actually sued.
• Empty-Chair Defense: A tactic where a defendant blames someone who is not in the courtroom. Permitted in some states by statute, disfavoured (and now curtailed) in Vermont absent joinder.
• Designated Agency (18 V.S.A. §8907): A community mental-health/developmental-disability agency approved by the State to coordinate services and manage Medicaid waiver funds.
• Estate Administrator vs. Individual Capacity: The administrator sues on behalf of the Estate; the same human being, acting personally, may bear independent duties or liabilities, but those must be pleaded separately.
• Foundation for Evidence: Before a document or opinion can be admitted, the offering party must show the witness has the requisite knowledge and that the item is relevant and reliable.

Conclusion

Shaffer delivers a nuanced but significant refinement of Vermont comparative-fault practice. The Court firmly signals that:

1. Comparative negligence generally stops at the parties’ table; non-participants cannot be apportioned fault without joinder.
2. A personal representative’s litigation role does not convert him into a comparative-negligence target.
3. Errors in jury instructions or pleadings, while undesirable, are reversible only when they cause demonstrable prejudice.

Practitioners should heed the Court’s admonition: plead comparative fault carefully, move to join any allegedly culpable non-party, and segregate a representative’s capacity from individual conduct. The ruling thus enhances procedural fairness and provides clearer roadmaps for future wrongful-death and negligence litigation in Vermont.