Fleurrey v. Department of Aging and Independent Living, 2023 VT 11 (filed 2/24/2023)
EATON, J. Plaintiff appeals from the civil division’s dismissal of her negligence claim against defendant landlord which alleged that landlord was responsible for the drowning death of a fifty-four-year-old man with developmental disabilities on the property that landlord leased to decedent’s caretakers. Count III of the complaint alleged that landlord failed to fence the pond, thereby negligently failing to keep the property free of unreasonably dangerous conditions which it knew to exist. Landlord filed a Rule 12(b)(6) motion to dismiss Count III, arguing that it owed decedent no duty to fence the pond at the property. The question on appeal is whether the civil division properly dismissed plaintiff’s claim. We conclude that it did and therefore affirm.
The purpose of a dismissal motion is to test the law of the claim, not the facts which support it. “[W]hether there is a cognizable legal duty that supports a particular tort action depends on a variety of public policy considerations and relevant factors.” Deveneau v. Wielt, 2016 VT 21, ¶ 8. The court considers “the relationship of the parties, the nature of the risk, . . . the public interest at stake, and the foreseeability of the harm.” Id. The existence of a duty is” primarily a question of law” and “[a]bsent a duty of care, an action for negligence fails.” Id.
More than a century ago we held that a suit could not be sustained against a landlord by a tenant’s invitee, explaining that “[l]iability for an injury due to defective premises ordinarily depends upon power to prevent the injury by making repairs, and therefor rests primarily upon him who has control and possession of the premises.” Beaulac v. Robie, 92 Vt. 27, 32 108 A. 88, 90 (1917). This decision applies to this case. Here, plaintiff must seek redress from those who invited decedent to the property because the property was in their possession and under their control. Vermont law has recognized this rule for more than a century, and we find no reason to disturb this longstanding precedent now.
Plaintiff argues on appeal landlord owed decedent a duty to protect, relying mainly on §§ 343 and 343A of the Restatement (Second) of Torts. Sections 343 and 343A of the Restatement (Second) of Torts, covering duties that land possessors owe to their invitees. do not apply here because plaintiff did not allege that landlord was the “possessor” of the Elmore Road property. “Possessor” is defined in Restatement (Second) of Torts § 328E as, ordinarily, “a person who is in occupation of the land with intent to control it.”
We reject Plaintiff’s further argument that a duty arises from foreseeability of harm and that this is jury issue. Alleging foreseeable harm cannot sustain a negligence action where no legal relationship is alleged to have existed between parties. While Vermont courts consider foreseeability in determining whether one party owed a duty to another party in a negligence suit, “[f]oreseeability of injury, in and of itself, does not give rise to a duty.” ¶ 8,2016 VT 21,¶ 8, ¶ 18. Instead, a legal relationship must be alleged between parties before a court may reach the question of duty, See Haupt v. Triggs, 2022 VT 61, ¶ 12, (holding that no indemnification duty can arise where no legal relationship is alleged to have existed between parties). Courts reach the duty question, where they may properly consider foreseeability, only where a legal relationship linking one party to the other is alleged because legal duties are dependent upon and coextensive with legal relationships. Haupt, 2022 VT 61, ¶ 12; Deveneau, 2016 VT 21, ¶ 18
Lastly, plaintiff argues that the civil division erred in drawing three inferences favorable to landlord: “[f]irst, the court made an inference that the landlord would not have reason to expect that Scott Fleurrey would nevertheless suffer physical harm from the pond because he lived with a caretaker at the property”; second, the civil division inferred “that the care provider would have Scott Fleurrey under her immediate supervision at all times”; and third, the civil division inferred “that the pond is a ‘natural’ pond.” This Court “review[s] the trial court’s disposition of a motion to dismiss de novo, and may affirm on any appropriate ground.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 959 A.2d 990 (mem.).The inferences were harmless because plaintiff’s claim would not survive a dismissal motion in their absence.
Plaintiff’s claims cannot survive a dismissal motion, because (1) our precedents require an invitee to seek redress for injuries sustained on negligently maintained property from the land possessor who invited them to the defective property, rather than from the absentee landlord; (2) §§ 343 and 343A are inapplicable because plaintiff did not allege that landlord was the possessor of the Elmore Road property; and (3) no duty can arise where, as here, no legal relationship is alleged to have linked the parties.
SCOVT NOTE: The rule of Beaulac v. Robie is codified in the First and Second Restatements as §354. This section and its exceptions in §§ 355 to 362 have been replaced by the Restatement (Third) of Torts: Phys. & Emot. Harm §§ 7 & 53 (2012), the latter of which is titled “Duty of Lessors.”
In the view of the Third Restatement, “foreseeability” is an element in the determination of negligence but not the determination of duty. Restatement (Third) of Torts: Phys. & Emot. Harm §7, comment j (2010) See Kuligoski v. Rapoza, 2018 VT 14 (Reiber CJ, dissenting)