Arnold v. Palmer, 2011 VT 8, ¶ 12 (mem.)
This is a wrongful death and survival action brought by the estate and survivors of a funeral director who died from cancer after exposure to formaldehyde in defendant landlords’ building. Landowners argue for summary judgment on the grounds that they lacked any duty to maintain or repair the ventilation system because they had no control over the system. Further, they argue that it was the tenant’s duty to provide a safe workplace for its employees. We reject this claim.
Vermont landlords “may be held liable for exposing their tenants to unreasonable risks of harm in the leased premises, whether or not they retain ‘control’ of the dangerous condition.” Favreau v. Miller, 156 Vt. 222, 228, 591 A.2d 68, 72 (1991). A landlord’s duty to maintain the premises is not the same as an employer’s duty to provide a safe workplace for its employees. Vella, 2003 VT 108, ¶ 14. A landlord’s duty to maintain the premises is an “independent, personal duty.” Id.
How a two-judge dictum becomes “law”
ReplyDeleteThe “holding” of Favreau v Miller regarding control is pure dictum, joined by only two members of the Court. Favreau v. Miller, 156 Vt. 222, 228, 591 A.2d 68, 72 (1991). Ten years later, without discussion, it is law.
Common law negligence liability could not be imposed by reason of ownership alone. See O’Brien v. Island Corp., 157 Vt. 135, 141 (1991). It is the landlord's duty to exercise reasonable care to maintain entrances and passageways retained in his control for the common use of tenants in multiple dwelling premises. However the landlord cannot be subject to liability, unless the landlord reserved control over the area where the injury occurred. O'Brien v. Island Corp., 157 Vt. 135, 139 (1991) Waite v. Brown, 132 Vt. 20, 25, 312 A.2d 915, 916 (1973); Smith v. Monmaney, 127 Vt. 585, 588, 255 A.2d 674, 676 (1969); Cameron v. Abatiell, 127 Vt. 111, 119, 241 A.2d 310, 315-16 (1968).
Control or possession as a limitation on landlord liability reflects a broader, general principle of negligence law. E.g. Grann v. Green Mountain Racing Corp., 150 Vt. 232, 551 A.2d 1202 (1988)(issue whether racetrack or concessionaire in control of area where plaintiff slipped and fell); Crosby v. Great Atlantic & Pacific Tea Co., 143 Vt. 537, 538, 468 A.2d 567, 568 (1983) (“Absence of ownership or control is a defense in a negligence case....”); Garafano v. Neshobe Beach Club, 126 Vt. 566, 574-575 (1967) (“In fact, such liability depends upon control, rather than ownership, of the premises”).
On March 19, 1984, Pamela Favreau fell down an interior stairway in her apartment, dislocating her hip. Because Favreau fell inside the apartment, the landlord arguably enjoyed immunity under the common law conrtol test. Nevertheless, the landlord did not raise this issue and agreed to submit the case to the jury under a charge that said, “Where a landlord has notice, or with due diligence should have known of a condition dangerous to the safety of tenants, he is required to use ordinary care to make the property safe. Favreau v. Miller, 156 Vt. at 225.
The jury found the landlord not negligent. On appeal all five judges voted to affirm.
The opinion authored by Justice Morse, writing for only two justices, went on to comment that the negligence charge as given by the trial court correctly rejected control as a limitation on landlord liability. The opinion purports to “now hold” that Vermont landlords “may be held liable for exposing their tenants to unreasonable risks of harm in the leased premises, whether or not they retain ‘control’ of the dangerous condition.” Favreau v. Miller, 156 Vt. at 228.
Justice Dooley, joined by Justice Allen, dissented and specifically “would not decide whether to abolish the control test.” because “[w]e have not had the benefit of briefing and argument on that issue since the parties agreed that control was unnecessary and that is the law of this case.” Favreau v. Miller, 156 Vt. at 233 (Dooley, J., dissenting). Justice Peck concurred in the result only.
Later in 1991 Justice Dooley, writing separately in O'Brien v. Island Corp., explained the plurality decision in Favreau means that the court had not yet decided “[w]hether or not …to abolish the control test generally.” O'Brien v. Island Corp., 157 Vt. 135, 147 (1991) (Dooley, J. dissenting).
By 2011 the Court has forgotten that Favreau is a dictum, joined by only two members of the Court, not a holding. Arnold v. Palmer, 2011 VT 8, ¶ 12 (mem.)(“We have held that Vermont landlords ‘may be held liable for exposing their tenants to unreasonable risks of harm in the leased premises, whether or not they retain ‘control’ of the dangerous condition.’ Favreau v. Miller, 156 Vt. 222, 228, 591 A.2d 68, 72 (1991)”).