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White v. Quechee Lakes Landowners' Association9/24/1999
uperior court erred by (1) basing its decision on grounds not raised in Helo's motion for summary judgment; (2) placing the burden on Quechee Lakes to prove that it had not acquiesced in any dangerous condition concerning the sauna; (3) relying on evidence not submitted by the parties with their summary judgment motions; (4) incorrectly applying § 95 of the Restatement of Restitution to the facts of this case; and (5) concluding that there were no material issues of disputed fact precluding summary judgment in Helo's favor.
II. The Standard of Review
In reviewing a decision to grant summary judgment, we apply the same standard as the trial court, requiring the moving party to prove both that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See V.C.R.P. 56(c); Chapman v. Sparta, 167 Vt. 157, 159, 702 A.2d 132, 134 (1997); Peters v. Mindell, 159 Vt. 424, 426, 620 A.2d 1268, 1269 (1992). In determining whether a dispute over material facts exists, we accept as true allegations made in opposition to the motion for summary judgment, so long as they are supported by affidavits or other evidentiary material. See Chapman, 167 Vt. at 159, 702 A.2d at 134. Nevertheless, the party opposing summary judgment may not rest upon the mere allegations or denials in its pleadings, "but must set forth specific facts showing that there is a genuine issue for trial." V.R.C.P. 56(e). Thus, mere conclusory allegations without facts to support them are "insufficient to sustain a complaint for indemnity." Central Hudson G. & E. Corp. v. Hatzel & Beuhler, Inc., 202 N.Y.S.2d 818, 822 (Sup. Ct. 1956), aff'd, 205 N.Y.S.2d 864 (N.Y. App. Div. 1960).
III. The Law of Indemnity
The right to indemnity, which is an exception to our longstanding rule barring contribution among joint tortfeasors, see Chapman, 167 Vt. at 159, 702 A.2d at 134, exists only when one party has expressly agreed to indemnify another, or when the circumstances are such that the law will imply such an undertaking. See id.; Bardwell, 135 Vt. at 572, 381 A.2d at 1062. Because of the rule against contribution among joint tortfeasors and the fact that indemnification shifts the entire loss from one party to another, see Peters, 159 Vt. at 428, 620 A.2d at 1270, one who has taken an active part in negligently injuring another is not entitled to indemnification from a second tortfeasor who also negligently caused the injury. See Fireside Motors, Inc. v. Nissan Motor Corp., 479 N.E.2d 1386, 1389 (Mass. 1985). Rather, indemnification accrues "to a party who, without active fault, has been compelled by some legal obligation, such as a finding of vicarious liability, to pay damages occasioned by the negligence of another." Morris v. American Motors Corp., 142 Vt. 566, 576, 459 A.2d 968, 974 (1982). Generally, indemnity will be imputed only when equitable considerations concerning the nature of the parties' obligations to one another or the significant difference in the kind or quality of their conduct demonstrate that it is fair to shift the entire loss occasioned by the injury from one party to another. See W. Keeton, Prosser and Keeton on the Law of Torts § 51, at 344 (5th ed. 1984).
While it is difficult to state a general rule that will cover all cases, see id. at 343, implied indemnification is usually appropriate only when the indemnitee is vicariously or secondarily liable to a third person because of some legal relationship with that person or because of the indemnitee's failure to discover a dangerous condition caused by the act of the indemnitor, who is primarily responsible for the condition. See id. at 341-43; Viens v. Anthony Co., 282 F. Supp. 983, 986 (D. Vt.
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