Langlois v. Town of Proctor 2014 VT 130 (05-Dec-2014)
DOOLEY, J. Building owner Kathleen Langlois alleged she arranged with a representative of the Town of Proctor to disconnect water service, but the Town failed to do so, and that she suffered damage in reliance on the Town’s undertaking when she discontinued heating her building, causing the pipes containing water to freeze and split with resulting flooding of the first floor and basement. The jury found the Town negligent and awarded plaintiff damages of $64,918.44. We reverse and remand because of the trial court instructed on mitigation of damages instead of comparative negligence and there was no allegation of plaintiff’s negligence after she discovered the injury or discrete damages allegedly attributable solely to plaintiff.
The relevant sequence of events was as follows. Plaintiff testified that she had her plumber friend drain the pipes in the building. The plumber turned off the water at a turn-off valve on the first floor of the building. The plumber did not attempt to turn off the water at a cellar valve, leaving water between that point and the first-floor valve. Town employees came to plaintiff’s house to shut the water off at the curb stop in May 2009. No one from the Town attempted to enter the building[and check whether the water was off after the May 2009 attempt to turn it off at the check valve. The damage was caused by a frozen and split pipe that occurred in the line in the basement before it reached the first-floor turn-off valve Plaintiff did not heat the building at all during the winter of 2009-2010, when the pipe presumably burst. . Plaintiff but did not enter the part of the first floor where the leak occurred until August 10, 2010, when the leak was discovered.
The instructions on “Mitigation of Damages,” said that if the jury found plaintiff could “reasonably have avoided some of the damages claimed by taking any reasonable action” the jury must reduce the award by the amount that could have been avoided.”
We first reject the trial court’s basis for refusing to instruct on comparative negligence—that plaintiff had no duty to determine whether the water had been turned off. In the context of a comparative fault analysis, plaintiff had a general duty to take due care with respect to her own property. The questions for the jury were, under the circumstances of this case, whether plaintiff failed to take due care and, if so, to what extent her conduct caused the claimed injuries.
The central question is whether, under the evidence, the jury could have found that: (1) plaintiff was also negligent, such that the jury should have found the degree of that negligence and compared it to the degree of defendant’s negligence; (2) plaintiff should have taken actions to mitigate her damages; (3) or both.
Other courts and academics have struggled to find a consistent answer to the question of when comparative negligence or mitigation of damages applies. In some cases, comparative negligence essentially subsumes mitigation, with all reduction in a plaintiff’s recovery controlled only by relative fault. Other jurisdictions apply the damages mitigation doctrine only to a plaintiff’s post-injury conduct and apply comparative negligence to damages from all other sources. Still other jurisdictions apply damages mitigation only to discrete items of harm that are tied to a plaintiff’s conduct and apply comparative negligence to damages from all other sources.
We have never decided this question.
The traditional approach draws temporal line to determine whether comparative negligence or mitigation/avoidable consequences applies is when the plaintiff becomes aware of being harmed by the defendant’s negligence. The modern approach draws no temporal distinction and abandons mitigation of damages in negligence cases in favor of comparative negligence. Restatement of Torts: Apportionment of Liab. § 3, Reporters’ Note, cmt. b. (2000)..
We need make no determination here whether the Third Restatement position should be adopted because in this case, there is no allegation of plaintiff’s negligence after she discovered the injury, and no discrete damages allegedly attributable solely to plaintiff. Thus, we agree with the Town that under either approach the court should have instructed the jury on comparative negligence rather than on damages mitigation to respond to its claim of plaintiff’s negligence.
Tuesday, December 9, 2014
Dead man's statute. SCOVT reverses exclusion of evidence and remands to determine whether decedent made an enforceable promise.
Hayes v. Town of Manchester Water & Sewer Boards 2014 VT 126 (21-Nov-2014)
ROBINSON, J. This case involves the proper application of the dead man’s statutes, 12 V.S.A. §§ 1602-1603. Developers of a residential subdivision died, triggering various claims by and against their estates relating to the estates’ responsibilities for the subdivision’s private roadway, water, and sewer infrastructure. A group of homeowners appeals the trial court’s denial of their request for a ruling that the estates have a legal obligation to dedicate the infrastructure to the Town and, until that happens, to maintain the infrastructure at their expense. We reverse the court’s denial of the homeowners’ request for a ruling on their claims, and remand for reconsideration of those claims based on the evidence, including evidence that the trial court previously excluded under the dead man’s statute, to determine whether an enforceable promise was made concerning maintenance of the infrastructure pending its dedication to the Town.
In essence, the dead man’s statutes restrict testimony concerning an alleged contract with a person who is no longer living unless certain listed exceptions apply, including when the testimony is presented to meet or explain the testimony of living witnesses. Section 1602 precludes a party from testifying in his or her own favor when the other party to the contract is dead, Section § 1603 precludes a party to the lawsuit from testifying in his or her own favor when an executor or an administrator is a party.
In this case the dispute is between the co-administrators of the estates and the homeowners who allege that they had a contract with the decedents. The superior court’s reliance on the dead man’s statutes to exclude testimony by either of the co-administrators was erroneous for two reasons: neither of the co-administrators was a party to the alleged contracts and neither of them testified in their own favor. In re Estate of Maggio, 2012 VT 99, ¶ 19., 193 Vt. 1, 71 A.3d 1130.
We also conclude that the superior court erred by excluding testimony concerning statements decedent made to them about maintaining and dedicating the subdivision’s infrastructure. This testimony fits within the statutory exception of testimony made “to meet or explain the testimony of living witnesses produced against them”—in this case, the co-administrators. 12 V.S.A. § 1603. Although the co-administrators’ testimony noted above was not made in their favor, their testimony could be construed as establishing the full extent to which promises were made to the homeowners. Once the co-administrators broached the subject of promises made to the homeowners in their testimony, the homeowners had the right to meet or explain the nature and extent of those promises.
ROBINSON, J. This case involves the proper application of the dead man’s statutes, 12 V.S.A. §§ 1602-1603. Developers of a residential subdivision died, triggering various claims by and against their estates relating to the estates’ responsibilities for the subdivision’s private roadway, water, and sewer infrastructure. A group of homeowners appeals the trial court’s denial of their request for a ruling that the estates have a legal obligation to dedicate the infrastructure to the Town and, until that happens, to maintain the infrastructure at their expense. We reverse the court’s denial of the homeowners’ request for a ruling on their claims, and remand for reconsideration of those claims based on the evidence, including evidence that the trial court previously excluded under the dead man’s statute, to determine whether an enforceable promise was made concerning maintenance of the infrastructure pending its dedication to the Town.
In essence, the dead man’s statutes restrict testimony concerning an alleged contract with a person who is no longer living unless certain listed exceptions apply, including when the testimony is presented to meet or explain the testimony of living witnesses. Section 1602 precludes a party from testifying in his or her own favor when the other party to the contract is dead, Section § 1603 precludes a party to the lawsuit from testifying in his or her own favor when an executor or an administrator is a party.
In this case the dispute is between the co-administrators of the estates and the homeowners who allege that they had a contract with the decedents. The superior court’s reliance on the dead man’s statutes to exclude testimony by either of the co-administrators was erroneous for two reasons: neither of the co-administrators was a party to the alleged contracts and neither of them testified in their own favor. In re Estate of Maggio, 2012 VT 99, ¶ 19., 193 Vt. 1, 71 A.3d 1130.
We also conclude that the superior court erred by excluding testimony concerning statements decedent made to them about maintaining and dedicating the subdivision’s infrastructure. This testimony fits within the statutory exception of testimony made “to meet or explain the testimony of living witnesses produced against them”—in this case, the co-administrators. 12 V.S.A. § 1603. Although the co-administrators’ testimony noted above was not made in their favor, their testimony could be construed as establishing the full extent to which promises were made to the homeowners. Once the co-administrators broached the subject of promises made to the homeowners in their testimony, the homeowners had the right to meet or explain the nature and extent of those promises.
Sunday, December 7, 2014
Duty. Economic loss rule does not require that liability for physical harm be based on a tort duty independent of any contractual obligations. Liability in tort for physical harm can arise from failure to exercise reasonable care to perform a contractual undertaking.
DOOLEY, J. Kathleen Langlois, owner of a building with commercial space on the first floor and an apartment on the second floor, failed to pay her water bill for the property to defendant Town of Proctor. Plaintiff alleged she arranged with a representative of the Town to disconnect water service, but the Town failed to do so, and that she suffered damage in reliance on the Town’s undertaking when she discontinued heating the building, causing the pipes containing water to freeze and split with resulting flooding of the first floor and basement.
The jury found that there was a contract between plaintiff and the Town “regarding the turning off of her water service,” but that the Town had not breached that contract. It found that the Town was negligent, that its negligence was a proximate cause of harm to plaintiff, and awarded plaintiff damages of $64,918.44.
On appeal, the Town argues for reversal because a tort duty must arise independent of any contractual obligations, and that it had no tort duty to properly turn off plaintiff’s water service. We disagree with the Town but reverse on other grounds. Liability in tort for physical harm can arise from failure to exercise reasonable care to perform a contractual undertaking.
The Town relies on a sentence from Springfield Hydroelectric Co. v. Copp, in which this Court stated that a tort duty of care must be “independent of any contractual obligations.” 172 Vt. 311, 316, 779 A.2d 67, 71-72 (2001) (emphasis omitted) (quoting Grynberg v. Agri Tech, Inc., 10 P.3d 1267, 1269 (Colo. 2000)). Plaintiff responds that a tort duty arose from its undertaking to disconnect the water service and plaintiff’s reliance upon that undertaking. She bases this argument on the Restatement (Second) of Torts § 323 (1979) ( Negligent Performance of Undertaking to Render Services)
The Town reads too much into Springfield Hydroelectric. The issue in that case was whether the plaintiff could obtain a tort recovery for purely economic losses in the absence of physical damage. We did not hold that the duty on which plaintiff relies for a tort action can never be contractual. In fact, many of our duty cases are based on undertakings involving contractually assumed duties.
The jury found that there was a contract between plaintiff and the Town “regarding the turning off of her water service,” but that the Town had not breached that contract. It found that the Town was negligent, that its negligence was a proximate cause of harm to plaintiff, and awarded plaintiff damages of $64,918.44.
On appeal, the Town argues for reversal because a tort duty must arise independent of any contractual obligations, and that it had no tort duty to properly turn off plaintiff’s water service. We disagree with the Town but reverse on other grounds. Liability in tort for physical harm can arise from failure to exercise reasonable care to perform a contractual undertaking.
The Town relies on a sentence from Springfield Hydroelectric Co. v. Copp, in which this Court stated that a tort duty of care must be “independent of any contractual obligations.” 172 Vt. 311, 316, 779 A.2d 67, 71-72 (2001) (emphasis omitted) (quoting Grynberg v. Agri Tech, Inc., 10 P.3d 1267, 1269 (Colo. 2000)). Plaintiff responds that a tort duty arose from its undertaking to disconnect the water service and plaintiff’s reliance upon that undertaking. She bases this argument on the Restatement (Second) of Torts § 323 (1979) ( Negligent Performance of Undertaking to Render Services)
The Town reads too much into Springfield Hydroelectric. The issue in that case was whether the plaintiff could obtain a tort recovery for purely economic losses in the absence of physical damage. We did not hold that the duty on which plaintiff relies for a tort action can never be contractual. In fact, many of our duty cases are based on undertakings involving contractually assumed duties.
This Court has applied § 323, and its cousin, § 324A, which governs harm to a third person, in a number of cases. Neither § 323 nor § 324A suggest that the duty stemming from the undertaking cannot be contractually based. Both apply to an undertaking “for consideration,” which is one way to describe a contract.
The evidence in this case was sufficient for a factfinder to find that the elements of § 323 were established.
Wednesday, September 17, 2014
Evidence: End run around hearsay rule fails under Rule 602, because witness who testifies to his understanding after an out-of-court interview lacks personal knowledge.
State v. Porter, 2014 VT 89 (01-Aug-2014)
CRAWFORD, J. Defendant Harold D. Porter, Jr. appeals from his conviction for attempted kidnapping. He argues that the trial court erred in admitting the testimony of police officers that they had ruled out other suspects based on interviews with out-of-court declarants; We reverse and remand.
Because the truck was relatively unique, police investigators working with the Department of Motor Vehicles were able to identify approximately twenty vehicles registered in Vermont which matched the make and color of the truck seen on camera. Ten vehicle owners testified at trial for the purpose of eliminating their truck or trucks from identification. The police interviewed five other owners prior to trial. These owners did not testify at trial. Instead, the investigating officers testified that based on the out-of-court interviews with the owners, the officers were able to eliminate those remaining trucks from the identification process. In the absence of evidence that the statements were based on personal knowledge, the requirement of Rule 602 was not met and the testimony of the officers should have been excluded.
Insurance. Proof of negligent claims-handling, short of knowing or reckless conduct required for a finding of bad faith, insufficient to support claim by policyholder against insurer for mold damage.
Murphy v. Patriot Insurance Company, 2014 VT 96, 106 A. 3d 911 (14-Aug-2014)
DOOLEY, J. Plaintiff Helena Murphy appeals from a superior court judgment in favor of defendant, Patriot Insurance Company, her homeowner’s insurer. She contends that the trial court erred in dismissing claims for negligence and bad faith. We affirm
Plaintiff added claims against Patriot for negligence “in inspecting and processing [the] claim and in retaining adjusters to investigate her claim,” and “bad faith” in denying the claims with “no reasonable basis.” Patriot moved for partial summary judgment on the additional claims, asserting that it owed no independent tort duty to plaintiff sounding in negligence; Patriot also argued that there was no basis to conclude that it had acted in violation of the covenant of good faith and fair dealing. The trial court granted Patriot’s motion. The court agreed that plaintiff had failed to “present[] a basis upon [which] to establish that [Patriot] owed a clear, non-contractual duty to her,” and further found on the facts alleged that Patriot “had a reasonable, if debatable, basis to deny [p]laintiff’s claims under the policy.” This appeal followed.
We agree with the trial court that plaintiff had failed “to establish that [Patriot] owed a clear, non-contractual duty to her” on the facts alleged. We rejected an independent tort duty on the part of the insurer’s agent in Hamill v. Pawtucket Mutual Insurance Company, 2005 VT 133, ¶¶ 2-3, 179 Vt. 250, 892 A.2d 226.in part on a recognition that the relationship between insurer and insured is fundamentally contractual, defined and governed by the coverage provisions in the insurance policy and the covenant of good faith and fair dealing implied therein. Id. ¶ 13. Indeed, the bad faith remedy would generally be superfluous if mere negligence in handling a claim would be sufficient for liability.
Most other courts have limited actions by insureds against their insurers to breach of contract or the implied covenant of good faith and fair dealing and have disallowed actions for negligence based upon an independent duty of care. We concur in the general view that,the insurance policy and the implied covenant of good faith and fair dealing defined plaintiff’s expectations for coverage and recovery in the event that benefits were wrongfully denied. Accordingly, we affirm the trial court’s dismissal of the negligence count.
“Bad faith,” is the general shorthand for breach of the covenant of good faith and fair dealing which the law implies in every insurance policy. Such a claim requires “more than negligence on the part of the insurer.” To establish bad faith, the plaintiff must show that: “(1) the insurance company had no reasonable basis to deny benefits of the policy, and (2) the company knew or recklessly disregarded the fact that no reasonable basis existed for denying the claim.” Where a claim is “fairly debatable,” the insurer is not guilty of bad faith even if it is ultimately determined to have been mistaken.
Measured against our bad faith standard, we find no basis to disturb the trial court’s ruling. At best, any claim that the adjuster’s failure to find that the true cause of the water infiltration was through the front chimney would fall well short of the knowing or reckless conduct required for a finding of bad faith
Thursday, September 11, 2014
Attorney’s fees not excessive. Statutory civil remedy for unlawful mischief permits award of attorneys fees though only nominal damages are awarded.
Evans v. Cote, 2014 VT 104 (29-Aug-2014)
DOOLEY, J. Defendant appeals the superior court’s order concluding that defendant violated 13 V.S.A. § 3701(c) by intentionally knocking down a tree belonging to plaintiff and trespassing on plaintiff’s land, and granting plaintiff $1 in damages plus attorney’s fees and costs. On appeal, defendant argues that plaintiff failed to demonstrate that defendant violated the statute, that nominal damages do not support an award of attorney’s fees, and that the court abused its discretion in awarding attorney’s fees of $22,406 based on $1 of actual damages. We affirm.
Based on its findings that defendant had trespassed on plaintiff’s property and that there was a substantial probability that he would continue to do so, the court granted plaintiff’s request for a permanent injunction. As to damages, the court concluded that the statute of limitations barred any recovery for actions taken prior to August 2002, which was six years before the case was filed. The court found that the sole damage occurring after August 2002 that was supported by the evidence was that in 2008 defendant had “knocked down one dead but standing softwood tree” on plaintiff’s side of the boundary line. The court awarded damages of $1 for the felled tree, explaining that it could not determine the replacement value of a single tree from the evidence presented.
In addition, the court awarded plaintiff attorney’s fees and costs under the unlawful mischief statute. 13 V.S.A. § 3701(f). The court found that the fees requested by plaintiff were reasonable, but that a downward departure was warranted because plaintiff had obtained a poor outcome in comparison to what was sought. Thus, the court made a 75% reduction in the requested amount, and awarded $22,406 in attorney’s fees and costs. Defendant moved to reconsider, arguing that a nominal damage recovery of $1 did not support an award of attorney’s fees under the statute. The court rejected defendant’s argument, concluding that recovery of attorney’s fees is not dependent on obtaining a certain monetary amount of damages.
Defendant has not ordered a transcript of the trial on the merits, and therefore has waived any challenge to sufficiency of the court’s findings. V.R.A.P. 10(b)(1) (explaining that it is appellant’s responsibility to order transcript and appellant “waives the right to raise any issue for which a transcript is necessary for informed appellate review”). Without the transcript, this Court assumes that the trial court’s findings are supported by the evidence.
Defendant has not ordered a transcript of the trial on the merits, and therefore has waived any challenge to sufficiency of the court’s findings. V.R.A.P. 10(b)(1) (explaining that it is appellant’s responsibility to order transcript and appellant “waives the right to raise any issue for which a transcript is necessary for informed appellate review”). Without the transcript, this Court assumes that the trial court’s findings are supported by the evidence.
This brings us to the central issues, whether the statute allows the award of any attorney’s fees where the amount of damages is only nominal and, if so, whether the fee amount is reasonable in light of the compensatory damages award.
The relevant statutory section provides:
We would undermine the Legislature’s purpose in establishing civil liability for damage to property from unlawful mischief, even where the damage is small, if we did not authorize fee shifting in all unlawful mischief cases.
Defendant next argues that a larger than 75% reduction was warranted because of the extremely poor result on plaintiff’s damages claim, and because the court improperly considered plaintiff’s success in obtaining a permanent injunction in awarding fees. Defendant has failed to demonstrate that the award was an abuse of discretion.
The relevant statutory section provides:
A person who, having no right to do so or any reasonable ground to believe that he or she has such right, intentionally does any damage to property of any value not exceeding $250.00 shall be imprisoned for not more than six months or fined not more than $500.00 or both.13 V.S.A. § 3701(c). The statute creates a civil remedy for violations: “A person who suffers damages as a result of a violation of this section may recover those damages together with reasonable attorney’s fees in a civil action under this section.” Id. § 3701(f).
We would undermine the Legislature’s purpose in establishing civil liability for damage to property from unlawful mischief, even where the damage is small, if we did not authorize fee shifting in all unlawful mischief cases.
Defendant next argues that a larger than 75% reduction was warranted because of the extremely poor result on plaintiff’s damages claim, and because the court improperly considered plaintiff’s success in obtaining a permanent injunction in awarding fees. Defendant has failed to demonstrate that the award was an abuse of discretion.
We have explained in the past that it is not whether the attorney’s fee award is proportional to the damages, but “whether the fee award is reasonable given the demands of the case.” Kwon, 2010 VT 73, ¶ 20. The proportionality argument is particularly difficult here since the Legislature has explicitly authorized civil unlawful mischief claims for very small amounts of money where the attorney’s fees and costs are almost certain to greatly exceed the amount of damages recovered.
The court’s decision does not support defendant’s claim that the court improperly considered plaintiff’s success in obtaining a permanent injunction in its analysis of how much to reduce the lodestar amount. Further, the court provided an adequate explanation for its decision to reduce the lodestar figure by 75%.
The court’s decision does not support defendant’s claim that the court improperly considered plaintiff’s success in obtaining a permanent injunction in its analysis of how much to reduce the lodestar amount. Further, the court provided an adequate explanation for its decision to reduce the lodestar figure by 75%.
We reiterate that our review of the court’s decision on the amount of fees is a limited one. “[A]bsent strong evidence of excessiveness,” this Court defers to the trial court’s judgment as to the amount of fees. Human Rights Comm’n v. LaBrie, Inc., 164 Vt. 237, 252, 668 A.2d 659, 670 (1995). Defendant has failed to demonstrate that a 75% reduction was an abuse of the court’s discretion.
No personal jurisdiction over a nonresident defendant for relief from abuse based on out-of-state assault.
Fox v. Fox, 2014 VT 100 (14-Aug-2014)
ROBINSON, J. This case requires us to evaluate the constitutional requirements for personal jurisdiction over a nonresident defendant in the context of a relief-from-abuse (RFA) order. Nonresident defendant appeals the family court order granting plaintiff’s request for a final RFA order. We conclude that the trial court lacked personal jurisdiction to enter a final RFA order, and reverse.
On April 6, 2012, defendant, a New Hampshire resident, and plaintiff, a Vermont resident, attended a probate court hearing in New Hampshire. Following the hearing, defendant followed plaintiff to his car and proceeded to punch, kick, and step on plaintiff. Plaintiff was hospitalized as a result of the encounter.
Plaintiff filed a complaint for relief from abuse with the family division of the Windsor Superior Court. The trial court granted a temporary RFA order. The court interpreted 15 V.S.A. § 1102 to establish jurisdiction in RFA cases even in the absence of minimum contacts between defendant and the forum state. .
Vermont’s long-arm statute, 12 V.S.A. § 913(b), permits state courts to exercise jurisdiction over nonresident defendants “to the full extent permitted by the Due Process Clause” of the U.S. Constitution. N. Aircraft, Inc. v. Reed, 154 Vt. 36, 40, 572 A.2d 1382, 1385 (1990). Vermont’s RFA statute cannot extend the court’s jurisdiction beyond the bounds of federal due process. Accordingly, the statutory and constitutional analyses in this case are one and the same.
The focus of the minimum contacts inquiry is on the relationship among the defendant, the forum state, and the cause of action. A court may exercise either general or specific jurisdiction over a nonresident defendant. General jurisdiction applies to suits not arising out of or related to the defendant’s contacts with the forum state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415 n.9 (1984). Nobody suggests that Vermont has general jurisdiction to adjudicate claims against defendant
A court may exercise specific jurisdiction where a defendant has “purposefully directed . . . activities at residents of the forum and the litigation results from alleged injuries that arise out of or relate to those activities.” By attacking plaintiff in New Hampshire, defendant did not avail himself of any benefits or protections of Vermont’s laws, or subject himself to the authority of Vermont’s courts. The fact that plaintiff happens to be a Vermont resident is not itself enough to give Vermont courts jurisdiction over a New Hampshire defendant for an assault in New Hampshire. .
In light of defendant’s stipulation that he abused plaintiff, and the relative proximity of New Hampshire, this may seem like a harsh result. But we decline to carve out a blanket exemption from the constitutional due process requirement of personal jurisdiction for requests for final RFA orders. The due process requirement that a court have personal jurisdiction before entering a judgment against a defendant applies to those defendants with meritorious defenses, as well as those without. And it applies to defendants in New Mexico as well as New Hampshire.
We conclude that the trial court lacked the personal jurisdiction required to issue a final RFA order.
Premises liability. Under standard of reasonable care jury could find that owner should have foreseen the harm even if the danger was obvious. Court gives force to change in law while case on appeal -- abrogating invitee/licensee distinction.
Ainsworth v. Chandler, 2014 VT 107 (29-Aug-2014)
REIBER, C.J. These consolidated cases stem from alleged injuries suffered by plaintiff Faye Ainsworth while she was at defendant Charles Chandler’s business, Chandler Electric. Plaintiff filed suit, claiming that she was injured when she tripped on a coil of wires that had been placed in the stairway. Defendant filed suit against his insurer, Concord Insurance Group (insurer), arguing that insurer had wrongfully and in bad faith failed to provide adequate coverage for the claim. Insurer filed a counterclaim seeking a declaration of noncoverage. The court granted summary judgment to defendant, concluding that plaintiff was a social guest of defendant at the time of her visit, that the duty of care defendant owed her was the lesser duty applicable to licensees under Vermont law, as contrasted with that owed to business invitees, and that defendant did not breach this duty. The trial court also granted summary judgment to insurer, on the basis that the underlying personal injury action had been dismissed and therefore no coverage was owed. For the following reasons, we reverse with respect to plaintiff’s suit and reverse and remand for further proceedings with respect to defendant’s claim against insurer and insurer’s counterclaim for declaration of noncoverage.
We begin with plaintiff’s claim that the court wrongfully found that she was a social guest rather than a business invitee. We reverse and remand for further proceedings in light of our recent abrogation of the common law distinction between invitees and licensees, as held in Demag v. Better Power Equipment, 2014 VT 78, ¶ 26, ___ Vt. ___, ___ A.3d ___. We find Demag controlling based on the common-law rule, recognized in both civil and criminal litigation, that a change in law will be given effect while a case is on direct review. In accordance with Demag, on remand the trial court is to apply the standard of “reasonable care under all the circumstances,” which “is no more and no less than that of any other alleged tortfeasor.” Id. ¶¶ 26-27 (quotations omitted). In this determination, “[t]he entrant’s status, no longer controlling, is simply one element, among many, to be considered in determining the landowner’s liability under ordinary standards of negligence.” Id. ¶ 26 (quotation omitted).
Given plaintiff’s deposition testimony that she did not see the wire in the stairs before she tripped, and defendant’s admissions that the area was poorly lit, covered in debris, and unsecured, a reasonable jury could conclude that either the danger was not open and obvious or that defendant should have foreseen the harm even if the danger was obvious. Thus, a jury could find that defendant had a duty to make the condition safe or warn plaintiff of the danger, and that he breached this duty. Cf. Menard, 174 Vt. at 479-80, 806 A.2d at 1005-07 (holding defendants not liable for negligence under either an invitee or licensee standard where danger of spiral staircase was obvious to plaintiff, defendants had installed a guardrail, area was well-lit, and there was no “foreign substance” on the stairs) Viewing the facts in the light most favorable to plaintiff, plaintiff has presented a genuine issue of material fact as to the elements of common law negligence sufficient to defeat summary judgment.
As to defendant’s lawsuit against insurer, the court’s order granting summary judgment in favor of insurer hinged on its dismissal of plaintiff’s claims. Accordingly, we reverse the court’s grant of summary judgment in favor of insurer and remand for further proceedings consistent with this opinion.
Adverse ruling is not grounds for disqualifying a judge.
Ainsworth v. Chandler, 2014 VT 107 (29-Aug-2014)
REIBER, C.J. Defendant has filed a litany of motions to disqualify judges, court personnel, and attorneys, all of which have been denied as lacking in merit. Defendant claims on appeal that his motions to disqualify the trial judge in this case were wrongly denied. We affirm.
Defendant filed numerous motions to disqualify the trial judge throughout the course of litigation. Defendant based his complaints against the trial judge on the fact that she said on one occasion that she had not read defendant’s case file; his disagreement with her rulings and handling of the case; and an alleged financial conflict with her prior law firm. On appeal, defendant argues that the trial judge harbors prejudice against him due to his interactions with her at her prior law firm, during defendant’s prior cases, and during the instant case.
The Code of Judicial Conduct provides that a judge “shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.” A.O. Canon 3E(1). Judges are “accorded a presumption of honesty and integrity, with [the] burden on the moving party to show otherwise in the circumstances of the case.” Ball v. Melsur Corp., 161 Vt. 35, 39, 633 A.2d 705, 709 (1993) (quotation omitted). We will not disturb a decision regarding disqualification unless “there has been an abuse of discretion, that is, if the record reveals no reasonable basis for the decision.” Id. at 40, 633 A.2d at 710.
Here, there is no basis to disturb the denial of defendant’s motions. Defendant has offered no evidence to lend factual support to any of his allegations of prejudice. The fact that the trial judge has previously ruled against him does not, in itself, constitute evidence of bias. See Liteky v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never constitute a valid basis for a bias or partiality motion. . . . Almost invariably, they are proper grounds for appeal, not for recusal.”); Luce v. Cushing, 2004 VT 117, ¶ 23, 177 Vt. 600, 868 A.2d 672 (holding that “adverse rulings, no matter how erroneous or numerous” are not sufficient to establish prejudice (quotation omitted).
Partition.. Discretion to depart from equal shares
ROBINSON, J. Plaintiff challenges a partition order reflecting the trial court’s conclusion that defendant had an 81.7% interest in the home that plaintiff and defendant purchased together, and applying various setoffs for contributions to the maintenance of the home after the parties purchased it. We affirm.
Plaintiff suggests that where the deed titles property to joint tenants with rights of survivorship, the presumption of equal ownership interests is conclusive. We disagree. The presumption reflected in 27 V.S.A. § 2(b)(2)(A) is an evidentiary presumption, subject to rebuttal. See, e.g., Whippie, 2010 VT 32, ¶ 14 We conclude that the trial court’s finding that the parties intended to own the property in a 81.7% to 18.3% proportion was amply supported by its findings and the underlying evidence.
Plaintiff next argues that the trial court’s requirement that plaintiff pay defendant $158,144 to buy out his interest is clearly erroneous and inequitable. We review the trial court’s assessment of equitable remedies, like partition, for abuse of discretion, and will uphold the trial court’s judgment unless the trial court has withheld its discretion entirely or exercised it “for clearly untenable reasons or to a clearly untenable extent.” Given the extensive debt and additional expenses built up by the parties in connection with, or attached to, the property, it is no surprise that plaintiff would have to pay more than the value of the property to satisfy her debt to defendant and keep the property. The trial court here considered the appropriate factors, exercising discretion in applying them. Whippie, 2010 VT 32, ¶ 15
Sunday, August 3, 2014
Trustee process. Divided SCOVT affirms denial of motion to default trustee for late disclosure.
Stroup v. Doran, 2014 VT 92 (01-Aug-2014)
CRAWFORD, J. Plaintiffs appeal from an order of the superior court denying their motion for default judgment against trustee Brattleboro Savings and Loan Association (BSL). We affirm.
On July 22, 2013, plaintiffs served BSL with a trustee summons. BSL did not reply within thirty days, and on August 27 plaintiffs moved for default against BSL and entry of judgment against it as trustee for $24,155.12, the balance due under the judgment. On September 16, BSL filed a trustee disclosure indicating that it did not have any of defendants’ property in its possession. The court denied plaintiffs’ motion for default judgment against BSL. The court stated that “[a]lthough Trustee failed to make a timely disclosure, its disclosure now made in response to Plaintiff[s’] motion for default shows that it holds no assets for the benefit of Defendant[s]. Default judgment under these circumstances would be inequitable.”
Plaintiffs argue that the trial court erred in denying their motion for default because applicable Vermont law makes default mandatory when a trustee fails to serve a disclosure within thirty days.
Vermont’s trustee process statute provides that “[w]hen a person summoned as trustee does not serve his disclosure within such time as the supreme court may by rule provide, he shall be defaulted, and adjudged a trustee.” 12 V.S.A. § 3062. Civil Rule 4.2(f) requires a trustee to serve a disclosure “within 30 days after the service of the trustee summons upon the trustee, unless the court otherwise directs.” A person who is adjudged trustee by default is liable “for the amount of damages and costs recovered by the plaintiff in the action, and payable in money at the time the judgment is rendered against the principal defendant.” 12 V.S.A. § 3063.
Under the plain language of Rule 4.2(f), the court has discretion to extend the thirty-day deadline for service of a trustee disclosure. Here, the trial court effectively extended the deadline in Rule 4.2(f) by accepting BSL’s late disclosure. This was not an abuse of discretion.
In this case, neither an entry of default nor a default judgment against the trustee ever issued. For this reason, the remedy proposed by the dissent of a motion under Civil Rules 55 or 60 would be premature. Instead, the trial court exercised its separate authority under Rule 4.2(f) to extend the time for the trustee’s response prior to entry of judgment.
DOOLEY, J., dissenting. I fully endorse the desirability of resolving litigation on the merits and of avoiding default judgments. But the discretion we grant to the trial court to give relief from a default judgment must have some limits and be governed by some standards; otherwise, we simply create injustice under the guise of preventing it. I cannot go along with the standardless, unlimited discretion the majority creates, and therefore dissent. I agree that the bank should have the opportunity to seek relief from the default trustee judgment, but the opportunity should occur through a motion to set aside the judgment under Rule 55(c), and the bank should have to demonstrate good cause or compliance with Rule 60. By letting this bank off with no demonstrated showing that it has a system to respond in the future, we are sending the signal that compliance is unimportant. I am authorized to state that Justice Skoglund joins this dissent.
CRAWFORD, J. Plaintiffs appeal from an order of the superior court denying their motion for default judgment against trustee Brattleboro Savings and Loan Association (BSL). We affirm.
On July 22, 2013, plaintiffs served BSL with a trustee summons. BSL did not reply within thirty days, and on August 27 plaintiffs moved for default against BSL and entry of judgment against it as trustee for $24,155.12, the balance due under the judgment. On September 16, BSL filed a trustee disclosure indicating that it did not have any of defendants’ property in its possession. The court denied plaintiffs’ motion for default judgment against BSL. The court stated that “[a]lthough Trustee failed to make a timely disclosure, its disclosure now made in response to Plaintiff[s’] motion for default shows that it holds no assets for the benefit of Defendant[s]. Default judgment under these circumstances would be inequitable.”
Plaintiffs argue that the trial court erred in denying their motion for default because applicable Vermont law makes default mandatory when a trustee fails to serve a disclosure within thirty days.
Vermont’s trustee process statute provides that “[w]hen a person summoned as trustee does not serve his disclosure within such time as the supreme court may by rule provide, he shall be defaulted, and adjudged a trustee.” 12 V.S.A. § 3062. Civil Rule 4.2(f) requires a trustee to serve a disclosure “within 30 days after the service of the trustee summons upon the trustee, unless the court otherwise directs.” A person who is adjudged trustee by default is liable “for the amount of damages and costs recovered by the plaintiff in the action, and payable in money at the time the judgment is rendered against the principal defendant.” 12 V.S.A. § 3063.
Under the plain language of Rule 4.2(f), the court has discretion to extend the thirty-day deadline for service of a trustee disclosure. Here, the trial court effectively extended the deadline in Rule 4.2(f) by accepting BSL’s late disclosure. This was not an abuse of discretion.
In this case, neither an entry of default nor a default judgment against the trustee ever issued. For this reason, the remedy proposed by the dissent of a motion under Civil Rules 55 or 60 would be premature. Instead, the trial court exercised its separate authority under Rule 4.2(f) to extend the time for the trustee’s response prior to entry of judgment.
DOOLEY, J., dissenting. I fully endorse the desirability of resolving litigation on the merits and of avoiding default judgments. But the discretion we grant to the trial court to give relief from a default judgment must have some limits and be governed by some standards; otherwise, we simply create injustice under the guise of preventing it. I cannot go along with the standardless, unlimited discretion the majority creates, and therefore dissent. I agree that the bank should have the opportunity to seek relief from the default trustee judgment, but the opportunity should occur through a motion to set aside the judgment under Rule 55(c), and the bank should have to demonstrate good cause or compliance with Rule 60. By letting this bank off with no demonstrated showing that it has a system to respond in the future, we are sending the signal that compliance is unimportant. I am authorized to state that Justice Skoglund joins this dissent.
UIM coverage. Insurer of host vehicle does not have to provide both liability and UIM benefits to injured passenger.
Progressive Casualty Insurance Co. v. MMG Insurance Co., 2014 VT 70 (01-Aug-2014)
REIBER, C.J. In this insurance coverage dispute, we are asked to interpret 23 V.S.A. § 941(f) in the context of a single-car accident with multiple victims. Plaintiff Progressive Casualty Insurance Company insured the vehicle involved in the accident here. The driver was solely responsible for the accident. Given the number of victims, the policy’s liability coverage did not fully compensate at least one of the injured passengers. The parties disputed whether the injured passenger was therefore entitled to UIM benefits under Progressive’s policy. Progressive argued that coverage was barred by certain exclusions in its policy. The trial court found Progressive’s owned-vehicle exclusion unenforceable in the multiple-claimant setting as inconsistent with the definition of an “underinsured vehicle” set forth in 23 V.S.A. § 941(f). Progressive appeals, arguing that its exclusions should be enforced, and that it should not have to provide both liability and UIM benefits to the injured passenger. We agree with Progressive, and therefore, reverse the trial court’s decision.
The issue here is whether Progressive’s policy exclusions violate § 941(f). As amended in 2005, this section provides that: a motor vehicle is underinsured to the extent that: (1) the liability insurance limits applicable at the time of the accident are less than the limits of the uninsured motorist coverage applicable to the insured; or (2) the available liability insurance has been reduced by payments to others injured in the accident to an amount less than the limits of the uninsured motorist coverage applicable to the insured. 23 V.S.A. § 941(f).
Consistent with legislative intent and the plain language of the statute, we conclude that, as applicable to this single-car accident case, the law now allows an injured individual to recover UM/UIM benefits under policies that he or she had purchased when a tortfeasor’s liability insurance has been depleted by payments to multiple victims. For purposes of this case, that means that the victim can claim the benefit of his or her own UIM policies to the extent that the limits of his or her UM/UIM coverage exceed the liability recovery. We do not read § 941 to require an insurer effectively to provide “double liability insurance,” a concept that we rejected in Hubbard, 2007 VT 121, and an approach that has been uniformly rejected by other courts which, hold that one cannot recover under both the liability and UM/UIM provisions of the same insurance contract. Id. ¶ 15.
The statute must be interpreted consistently with its purpose to ensure that when an insured purchases mandatory UM/UIM coverage, he or she “is guaranteed at least that amount of recovery regardless of a lower level of liability insurance purchased by a tortfeasor.” Hubbard, 2007 VT 121, ¶¶ 7, 10. The exclusions in Progressive’s host-vehicle policy do not interfere with this purpose and they do not violate § 941. We therefore conclude that Progressive was entitled to summary judgment in its favor, and reverse the trial court’s decision.
Reversed and remanded for entry of judgment consistent with this opinion.
ROBINSON, J., dissenting. The majority’s reasoning relies heavily on its assertion that the statute defining an underinsured motor vehicle calls for a comparison of the available liability insurance to the injured passenger’s “own” UIM insurance, or the insurance purchased by the passenger, but not to UIM coverage applicable to the passenger through the host-vehicle policy. This distinction does not derive in any way from the text of the statute; rather, it is an additional qualification judicially grafted on to the statute.
Liability coverage and UIM coverage provide separate and distinct benefits under the policy. When the actual liability coverage available from a third-party tortfeasor is less than the limits of the UIM coverage applicable to the passenger through the host-vehicle policy, nobody suggests that the passenger’s invocation of the host vehicle’s UIM coverage converts that coverage into “liability” coverage. The whole point of UIM coverage is to make up for a shortfall in liability coverage relative to the UIM limits. That is true whether the tortfeasor happens to be the driver of the passenger’s car, or the driver of a different car.
The majority also argues that the trial court’s approach would give the passenger more UIM protection than the passenger had actually purchased. That is not an incongruous result; it can occur when then tortfeasor is the driver of a different car. It is not at all clear why the result should change because he was injured by the driver of the car in which he was riding, rather than the driver of a different car.
The Legislature has specifically sought to ensure that UIM coverage be available to fill the gap between the liability coverage actually available to a person injured by a negligent driver, taking into account reductions in the available liability insurance due to payments to others injured in the accident, and the limits of the UIM coverage applicable to the insured. The exclusions upheld by the majority in this case frustrate that purpose, and are incompatible with the express requirement of the statute. For that reason, I respectfully dissent. I am authorized to state that Justice Dooley joins this dissent.
REIBER, C.J. In this insurance coverage dispute, we are asked to interpret 23 V.S.A. § 941(f) in the context of a single-car accident with multiple victims. Plaintiff Progressive Casualty Insurance Company insured the vehicle involved in the accident here. The driver was solely responsible for the accident. Given the number of victims, the policy’s liability coverage did not fully compensate at least one of the injured passengers. The parties disputed whether the injured passenger was therefore entitled to UIM benefits under Progressive’s policy. Progressive argued that coverage was barred by certain exclusions in its policy. The trial court found Progressive’s owned-vehicle exclusion unenforceable in the multiple-claimant setting as inconsistent with the definition of an “underinsured vehicle” set forth in 23 V.S.A. § 941(f). Progressive appeals, arguing that its exclusions should be enforced, and that it should not have to provide both liability and UIM benefits to the injured passenger. We agree with Progressive, and therefore, reverse the trial court’s decision.
The issue here is whether Progressive’s policy exclusions violate § 941(f). As amended in 2005, this section provides that: a motor vehicle is underinsured to the extent that: (1) the liability insurance limits applicable at the time of the accident are less than the limits of the uninsured motorist coverage applicable to the insured; or (2) the available liability insurance has been reduced by payments to others injured in the accident to an amount less than the limits of the uninsured motorist coverage applicable to the insured. 23 V.S.A. § 941(f).
Consistent with legislative intent and the plain language of the statute, we conclude that, as applicable to this single-car accident case, the law now allows an injured individual to recover UM/UIM benefits under policies that he or she had purchased when a tortfeasor’s liability insurance has been depleted by payments to multiple victims. For purposes of this case, that means that the victim can claim the benefit of his or her own UIM policies to the extent that the limits of his or her UM/UIM coverage exceed the liability recovery. We do not read § 941 to require an insurer effectively to provide “double liability insurance,” a concept that we rejected in Hubbard, 2007 VT 121, and an approach that has been uniformly rejected by other courts which, hold that one cannot recover under both the liability and UM/UIM provisions of the same insurance contract. Id. ¶ 15.
The statute must be interpreted consistently with its purpose to ensure that when an insured purchases mandatory UM/UIM coverage, he or she “is guaranteed at least that amount of recovery regardless of a lower level of liability insurance purchased by a tortfeasor.” Hubbard, 2007 VT 121, ¶¶ 7, 10. The exclusions in Progressive’s host-vehicle policy do not interfere with this purpose and they do not violate § 941. We therefore conclude that Progressive was entitled to summary judgment in its favor, and reverse the trial court’s decision.
Reversed and remanded for entry of judgment consistent with this opinion.
ROBINSON, J., dissenting. The majority’s reasoning relies heavily on its assertion that the statute defining an underinsured motor vehicle calls for a comparison of the available liability insurance to the injured passenger’s “own” UIM insurance, or the insurance purchased by the passenger, but not to UIM coverage applicable to the passenger through the host-vehicle policy. This distinction does not derive in any way from the text of the statute; rather, it is an additional qualification judicially grafted on to the statute.
Liability coverage and UIM coverage provide separate and distinct benefits under the policy. When the actual liability coverage available from a third-party tortfeasor is less than the limits of the UIM coverage applicable to the passenger through the host-vehicle policy, nobody suggests that the passenger’s invocation of the host vehicle’s UIM coverage converts that coverage into “liability” coverage. The whole point of UIM coverage is to make up for a shortfall in liability coverage relative to the UIM limits. That is true whether the tortfeasor happens to be the driver of the passenger’s car, or the driver of a different car.
The majority also argues that the trial court’s approach would give the passenger more UIM protection than the passenger had actually purchased. That is not an incongruous result; it can occur when then tortfeasor is the driver of a different car. It is not at all clear why the result should change because he was injured by the driver of the car in which he was riding, rather than the driver of a different car.
The Legislature has specifically sought to ensure that UIM coverage be available to fill the gap between the liability coverage actually available to a person injured by a negligent driver, taking into account reductions in the available liability insurance due to payments to others injured in the accident, and the limits of the UIM coverage applicable to the insured. The exclusions upheld by the majority in this case frustrate that purpose, and are incompatible with the express requirement of the statute. For that reason, I respectfully dissent. I am authorized to state that Justice Dooley joins this dissent.
Friday, July 25, 2014
Property tax. Town can tax property with subdivision permit differently from property that does not need a permit to be subdivided.
Lathrop v. Monkton, 2014 VT 9 (24-Jan-2014)
CRAWFORD, J. The Town of Monkton brings this consolidated appeal from decisions of the state appraiser in three property tax cases challenging the Town’s 2011 assessment. The state appraiser ruled that the Town had treated taxpayers inequitably by adding additional “home-site values” to undeveloped parcels that have a subdivision permit, but not to other undeveloped parcels that are eligible for subdivision without a permit. We reverse.
Taxpayers’ position, accepted by the state appraiser, is that the Town’s taxation scheme violates the Proportional Contribution Clause of the Vermont Constitution and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution because similarly situated taxpayers—i.e., those who own parcels divided by roads or containing contiguous lots created by deed prior to 1978, and those whose land is subject to a subdivision permit—are treated differently. The Town argues that it acted fairly in applying different valuation methods to properties with different characteristics, and that land that could be subdivided witout a permit is not similarly situated for purposes of tax appraisal.
Fair market value is based on the highest and best use of the property. The Town is not required to treat an undivided parcel as one economic unit for appraisal purposes if the highest and best use of the property is as subdivided lots. The development potential of property is an appropriate factor to consider in fixing appraised values.
The practice of adding the additional home-site value to permitted lots is only the starting point for the determination of appraised values. A taxpayer who has obtained a permit remains free to present evidence that the property lacks development potential despite the issuance of the permit. Conversely, the Town may increase the value of an undeveloped parcel to reflect development value even in the absence of a permit.
A permit operates as prima facie evidence that the highest and best use for the permitted parcel is to subdivide it into multiple home sites. The fact that other owners have the right to subdivide without a permit does not necessarily demonstrate that the highest and best use of their property is as multiple house sites.
The state and federal guarantees of equal treatment do not require identical treatment. We conclude that the Town’s practice of assigning additional home-site values to permitted subdivisions has a rational basis and is constitutionally valid. There is a sufficient difference between lots with actual permits in place and lots which are potentially subject to division without a permit to justify the different treatment by the Town. The state appraiser therefore erred in reducing the assessed value of taxpayers’ land.
Reversed and remanded for the amendment of the assessed values of taxpayers’ land consistent with this opinion.
CRAWFORD, J. The Town of Monkton brings this consolidated appeal from decisions of the state appraiser in three property tax cases challenging the Town’s 2011 assessment. The state appraiser ruled that the Town had treated taxpayers inequitably by adding additional “home-site values” to undeveloped parcels that have a subdivision permit, but not to other undeveloped parcels that are eligible for subdivision without a permit. We reverse.
Taxpayers’ position, accepted by the state appraiser, is that the Town’s taxation scheme violates the Proportional Contribution Clause of the Vermont Constitution and the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution because similarly situated taxpayers—i.e., those who own parcels divided by roads or containing contiguous lots created by deed prior to 1978, and those whose land is subject to a subdivision permit—are treated differently. The Town argues that it acted fairly in applying different valuation methods to properties with different characteristics, and that land that could be subdivided witout a permit is not similarly situated for purposes of tax appraisal.
Fair market value is based on the highest and best use of the property. The Town is not required to treat an undivided parcel as one economic unit for appraisal purposes if the highest and best use of the property is as subdivided lots. The development potential of property is an appropriate factor to consider in fixing appraised values.
The practice of adding the additional home-site value to permitted lots is only the starting point for the determination of appraised values. A taxpayer who has obtained a permit remains free to present evidence that the property lacks development potential despite the issuance of the permit. Conversely, the Town may increase the value of an undeveloped parcel to reflect development value even in the absence of a permit.
A permit operates as prima facie evidence that the highest and best use for the permitted parcel is to subdivide it into multiple home sites. The fact that other owners have the right to subdivide without a permit does not necessarily demonstrate that the highest and best use of their property is as multiple house sites.
The state and federal guarantees of equal treatment do not require identical treatment. We conclude that the Town’s practice of assigning additional home-site values to permitted subdivisions has a rational basis and is constitutionally valid. There is a sufficient difference between lots with actual permits in place and lots which are potentially subject to division without a permit to justify the different treatment by the Town. The state appraiser therefore erred in reducing the assessed value of taxpayers’ land.
Reversed and remanded for the amendment of the assessed values of taxpayers’ land consistent with this opinion.
Property tax: Town cannot tax property as if legally subdivided, merely because of line on survey.
Hoiska v. Town of East Montpelier, 2014 VT 80 (18-Jul-2014)
ROBINSON, J. Taxpayer appeals from the Vermont State Appraiser’s valuation of her property in the Town of East Montpelier. She argues that the appraisal incorrectly treats her property as comprising two contiguous lots under common ownership, and accordingly assigns a higher value to the property than if it were a single developable lot. In particular, taxpayer takes issue with the state appraiser’s legal conclusion that she legally subdivided the land in 1978 by procuring a survey that includes a line dividing the lot into two parcels. We agree that the state appraiser’s findings do not support the legal conclusion that taxpayer effectively subdivided her property in 1978, and reverse.
In the absence of a transcript, we accept the court’s findings See V.R.A.P. 10(b)(1); see also In re S.B.L., 150 Vt. 294, 297-98, 553 A.2d 1078, 1081 (1988) (failure to order transcript waives any challenge to sufficiency of court’s findings).
From 1974 to 1982, the Town’s zoning and subdivision regulations both provided that subdivision approval was required only for subdivisions with three or more lots. In 1982, the Town adopted new zoning regulations that required subdivision approval for two or more lots. In 1986, taxpayer recorded a survey of her property with a 1977 certification date and a 1978 revision date. The map included a line subdividing the property into two lots. Taxpayer never applied for or obtained subdivision approval.
In determining the highest and best use of property, a town may assess a parcel as including multiple house sites where the owner has subdivided the property into separate lots. See Lathrop v. Town of Monkton, 2014 VT 9, ¶ 10, ___ Vt. ___, 91 A.3d 378. In Lathrop we held that a town’s valuation of a parcel as if it included two house sites was reasonable where the parcel had been subdivided by permit because the permit provided evidence that subdivision was financially feasible and would result in the highest and best use of the land. Id. ¶ 14. Here, the Town is casting a wider net than Monkton did in the Lathrop case, as Monkton limited its assessment for multiple house sites to properties for which the owner had obtained a subdivision permit.
We accept the state appraiser’s finding that 1977 neither the Town’s zoning regulations nor the subdivision regulations required any approval for the subdivision of property into less than three lots. The legal question, then, is whether under those circumstances the completion of a survey that includes a subdivision line, without more, automatically effects a subdivision. We conclude that it does not.
The intention to subdivide can be manifested in many ways, including by recording the survey reflecting the subdivision, building on one or both subdivided lots, conveying one or both subdivided lots, offering to sell one or more subdivided lots, or otherwise expressing an intention to prospectively treat the lots as separate. However, the mere preparation of a survey reflecting two lots, by itself, is not enough. Even in the absence of specific town requirements for subdivisions of property, a survey alone, unaccompanied by any evidence manifesting an intent by the owner to actually subdivide along the lines reflected in the survey, does not effectuate a subdivision.
We conclude that the state appraiser erred as a matter of law in concluding that taxpayer had effectively subdivided her property in 1978 solely on the basis of the existence of an unrecorded survey reflecting two lots as of that time.
Reversed and remanded for a determination of taxpayer’s 2011 assessment viewing taxpayer’s property as a single property rather than two contiguous lots.
ARKNote: Is development value taxable only if the owner has obtained necessary permits?
A town may increase assessed value when the owner has a subdivision permit, or when the property is already legally subdivided. But is taxation of development value prohibited whenever a necessary permit has not been obtained?
Hoiska frames the issue as whether the property was already subdivided before 1982. If so, no permit was required, and it could be valued as two lots. If not, the Court seems to assume it could not be valued at its development value because it now needs a permit.
But is this so? Lots of property has value because of available uses that will require future permits. Residences in business zone are torn down and converted to business use. Is the tax delayed until the actual permits are obtained?
Lathop held it is reasonable to assign a higher market value to property with a necessary permit than to a property that does not need a permit to be subdivided. This was because the existence of a permit is strong evidence of the feasibility of the project and the highest and best use. The Court noted, however, that a town may increase the value of an undeveloped parcel to reflect development value even in the absence of a permit. Lathrop v. Town of Monkton, 2014 VT 9, ¶ 16.
It is only a short step from this to say that a town can value an undeveloped parcel at its development value in the absence of a necessary permits, if the project is feasible and permits are obtainable.
There is no discussion of the point in Hoiska, but it suggests a town may not assess a parcel as including multiple house sites unless the owner has legally subdivided the property into separate lots.
Saturday, July 19, 2014
SCOVT abolishes distinction between licensees and invitees in premises liability cases. Duty of reasonable care owed to all lawful visitors, not just business visitors. Trespasser rule not addressed “at this time.”
Demag v. Better Power Equipment, Inc., 2014 VT 78 (18-Jul-2014)
The history of the law on the subject of landowners and licensees shows a tendency to whittle away a rule which no longer conforms to public opinion. ~ Cameron v. Abatiell, 127 Vt. 111, 114, 241 A.2d 310, 312 (1968)
DOOLEY, J. Plaintiff appeals a summary judgment against him in this case to recover damages for the injuries he suffered as a result of a fall into an uncovered storm drain in defendant BPE’s parking lot. Consistent with our current negligence law, the trial court found that plaintiff was a licensee of BPE, rather than an invitee. It then concluded that plaintiff was entitled to a lesser standard of care from BPE, which allowed for summary judgment against him. We determine that the time has come to abolish Vermont’s common-law negligence distinction between licensees and invitees and reverse and remand.
Plaintiff worked for a car dealership. As a convenience for BPE’s general manager and his wife Plainitff would pick up their car from BPE’s parking lot when it needed service. In January 2009, plaintiff drove to the lot to pick up the car and fell into an uncovered storm drain. Recent snowfall had obscured the drain so that its opening was not obvious. BPE and its employees were not aware that the storm drain was uncovered until plaintiff fell into it.
The trial court correctly noted that under our traditional common-law approach to landowner liability, the landowner’s duty to an entrant on his or her land depends on whether the entrant is an invitee, a licensee, or a trespasser. The trial court found that plaintiff was a licensee at the time of his injury. Citing to the Restatement (Second) of Torts § 342 cmt. c (1965), the court determined that the landowner had no duty to “inspect the land to discover possible or even probable dangers.”
Plaintiff argues that this Court should hold that all lawful visitors to business premises should be entitled to a duty of reasonable care.
We have long maintained the traditional, common-law approach to landowner liability, holding landowners to different duties of care depending on whether a land entrant is an invitee, licensee, or trespasser. Cameron v. Abatiell, 127 Vt. 111, 114, 241 A.2d 310, 312 (1968). In this decision, we do not address the duty owed by a landowner to a trespasser; we focus only on the distinctions we have drawn between licensees and invitees.
An invitee is one who “enters the land for the purpose of business dealings with the landowner.” The landowner owes a duty of reasonable care to an invitee, such that the invitee “is not unnecessarily or unreasonably exposed to danger.” A licensee is one who merely “enters or remains on land with the consent of the landowner.”
We will modify settled aspects of the common law only when plainly justified by evolving common standards.
Common standards have evolved. A slight majority of state courts have now abolished the distinction between licensees and invitees. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 51, Reporter’s Note, cmt. a, tbl. (2012). For the last thirty-five years, reform states have included all of Vermont’s closest neighbors.
The arbitrariness, rigidity and complexity of the distinctions that have developed to separate licensees from invitees is one of the reasons many courts have abandoned the classifications. The common law arose when “the presumption [was] that landowners generally were free to act as they pleased within the confines of their own property.” We are now in a different legal context, where control of land use for the protection the public is pervasive. The value we place on human health and safety has increased. The lower standard of care for landowners in relation to licensees is an anomaly in modern tort law.We conclude that this is an issue on which the need for modernization is so strong that we must act.
We hold that a landowner owes the same duty of care to a licensee as to an invitee. The standard of “reasonable care in all the circumstances” will better reflect our common expectation of the duty of care owed by landowners and occupiers to all lawful entrants. An entrant’s status, no longer controlling, is simply “one element, among many, to be considered in determining the landowner’s liability under ordinary standards of negligence.”
In making this change applicable to all lawful land entrants, we reiterate that we make no determination as to the duty owed to trespassers at this time. The rule as to trespassers that we recently stated in Farnham—that “a landowner owes no duty to protect a trespasser from injury caused by unsafe or dangerous conditions”—remains good law in Vermont. Farnham v. Inland Sea Resort Properties, .2003 VT 23, ¶ 8.
The evidence creates a question of fact sufficient to reach the jury under our new standard of care, whether the uncovered storm drain was reasonably foreseeable to BPE.
Plaintiff worked for a car dealership. As a convenience for BPE’s general manager and his wife Plainitff would pick up their car from BPE’s parking lot when it needed service. In January 2009, plaintiff drove to the lot to pick up the car and fell into an uncovered storm drain. Recent snowfall had obscured the drain so that its opening was not obvious. BPE and its employees were not aware that the storm drain was uncovered until plaintiff fell into it.
The trial court correctly noted that under our traditional common-law approach to landowner liability, the landowner’s duty to an entrant on his or her land depends on whether the entrant is an invitee, a licensee, or a trespasser. The trial court found that plaintiff was a licensee at the time of his injury. Citing to the Restatement (Second) of Torts § 342 cmt. c (1965), the court determined that the landowner had no duty to “inspect the land to discover possible or even probable dangers.”
Plaintiff argues that this Court should hold that all lawful visitors to business premises should be entitled to a duty of reasonable care.
We have long maintained the traditional, common-law approach to landowner liability, holding landowners to different duties of care depending on whether a land entrant is an invitee, licensee, or trespasser. Cameron v. Abatiell, 127 Vt. 111, 114, 241 A.2d 310, 312 (1968). In this decision, we do not address the duty owed by a landowner to a trespasser; we focus only on the distinctions we have drawn between licensees and invitees.
An invitee is one who “enters the land for the purpose of business dealings with the landowner.” The landowner owes a duty of reasonable care to an invitee, such that the invitee “is not unnecessarily or unreasonably exposed to danger.” A licensee is one who merely “enters or remains on land with the consent of the landowner.”
We will modify settled aspects of the common law only when plainly justified by evolving common standards.
Common standards have evolved. A slight majority of state courts have now abolished the distinction between licensees and invitees. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 51, Reporter’s Note, cmt. a, tbl. (2012). For the last thirty-five years, reform states have included all of Vermont’s closest neighbors.
The arbitrariness, rigidity and complexity of the distinctions that have developed to separate licensees from invitees is one of the reasons many courts have abandoned the classifications. The common law arose when “the presumption [was] that landowners generally were free to act as they pleased within the confines of their own property.” We are now in a different legal context, where control of land use for the protection the public is pervasive. The value we place on human health and safety has increased. The lower standard of care for landowners in relation to licensees is an anomaly in modern tort law.We conclude that this is an issue on which the need for modernization is so strong that we must act.
We hold that a landowner owes the same duty of care to a licensee as to an invitee. The standard of “reasonable care in all the circumstances” will better reflect our common expectation of the duty of care owed by landowners and occupiers to all lawful entrants. An entrant’s status, no longer controlling, is simply “one element, among many, to be considered in determining the landowner’s liability under ordinary standards of negligence.”
In making this change applicable to all lawful land entrants, we reiterate that we make no determination as to the duty owed to trespassers at this time. The rule as to trespassers that we recently stated in Farnham—that “a landowner owes no duty to protect a trespasser from injury caused by unsafe or dangerous conditions”—remains good law in Vermont. Farnham v. Inland Sea Resort Properties, .2003 VT 23, ¶ 8.
The evidence creates a question of fact sufficient to reach the jury under our new standard of care, whether the uncovered storm drain was reasonably foreseeable to BPE.
Reversed and remanded for further proceedings not inconsistent with this opinion.
Friday, June 13, 2014
Liability for dog bite is based on negligence.
Martin v. Christman, 2014 VT 55 (13-Jun-2014)
CRAWFORD, J. The single issue raised by this appeal is whether we should change the common-law rule requiring proof of a dog owner’s negligence as the sole basis for liability for personal injuries inflicted by the dog. In the face of longstanding precedent, both in Vermont and in the United States in general, we decline to change the substantive law by judicial decision.
The trial court granted defendants’ motion to dismiss the strict liability claim on the ground that Vermont precedent has long required proof of negligence to recover against a dog owner for damages caused by his or her dog. Godeau v. Blood, 52 Vt. 251 (1880). See Hillier v. Noble, 142 Vt. 552, 556, 458 A.2d 1101, 1104 (1983); Carr v. Case, 135 Vt. 524, 525, 380 A.2d 91, 93 (1977); Davis v. Bedell, 123 Vt. 441, 442-43, 194 A.2d 67, 68 (1963); Worthen v. Love, 60 Vt. 285, 286, 14 A. 461, 461 (1888).
In Bosley the Court explained that strict liability has been confined to things or activities which are "extraordinary", or "exceptional", or "abnormal". (citing Prosser on Torts, 3rd Ed. Strict Liability, section 77, page 520. ) The Court noted the Restatement of Torts, section 519, 520 accepts the principle of Rylands v. Fletcher, 3 Hurl & C 744 (1865), but has limited it to an "ultra-hazardous activity", defined as one which "necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care" and "is not a matter of common usage."
CRAWFORD, J. The single issue raised by this appeal is whether we should change the common-law rule requiring proof of a dog owner’s negligence as the sole basis for liability for personal injuries inflicted by the dog. In the face of longstanding precedent, both in Vermont and in the United States in general, we decline to change the substantive law by judicial decision.
The trial court granted defendants’ motion to dismiss the strict liability claim on the ground that Vermont precedent has long required proof of negligence to recover against a dog owner for damages caused by his or her dog. Godeau v. Blood, 52 Vt. 251 (1880). See Hillier v. Noble, 142 Vt. 552, 556, 458 A.2d 1101, 1104 (1983); Carr v. Case, 135 Vt. 524, 525, 380 A.2d 91, 93 (1977); Davis v. Bedell, 123 Vt. 441, 442-43, 194 A.2d 67, 68 (1963); Worthen v. Love, 60 Vt. 285, 286, 14 A. 461, 461 (1888).
In limiting recovery to cases of negligence, the dog-bite cases fall within the normal parameters of our tort law. O. Holmes, Jr., The Common Law 163 (Little, Brown & Co. 1946) (1881)(“ the defendant must have had at least a fair chance of avoiding the infliction of harm before he becomes answerable for such a consequence of his conduct.”)
These principles are generally followed in the United States. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 23 (2010). The overwhelming majority of those states that have adopted strict liability for dog bites have done so only by statute.
We see no reason to single out dog ownership for treatment that is different from that we apply to other human pursuits. If a change were warranted, it should be left to the Legislature. We are not prepared to depart from long-held principles of negligence to create a new field of strict liability.
Affirmed.
SCOVT note on strict liability at common law in Vermont.
The Court today reaffirms its early rejection of strict liability in dog bite cases, noting that “With the exception of ultra-hazardous activities such as blasting and keeping dangerous animals, there is no liability without a breach of a duty of care based on the defendant’s conduct.” Martin v. Christman, 2014 VT 55, ¶ 10.
The doctrine of strict liability for abnormally dangerous conditions and activities is a comparatively recent one in the law. See Bosley v. Central Vermont Public Service Corp., 127 Vt. 581, 582-85, 255 A.2d 671, 672-74 (1969). In Vermont the only recognized application of the doctrine involves blasting.
Here is a brief history.
The doctrine of absolute liability was jettisoned in Vermont as early as 1833 in the case of Lapham v. Curtis, 5 Vt. 371.
In Goupiel v. Grand Trunk Ry. Co., 94 Vt. 337, 343, 111 A. 346, a case involving a railroad torpedo, the Vermont Court rejected strict liability as a general doctrine.
Goupiel was recognized as good law as late as 1958, in Thompson v. Green Mtn. Power Corp., 120 Vt. 478, 482, 144 A.2d 786 (1958), a case involving dynamite and chickens. The Court said that the doctrine of absolute liability has not been accepted in this jurisdiction, citing Goupiel v. Grand Trunk R. Co., supra, 94 Vt. at page 343, 111 A. at page 348.
In Malloy v. Lane Construction Corporation, 123 Vt. 500, 194 A.2d 398 (1963) the Court overruled Goupiel v. Grand Truck Ry. Co., and adopted the doctrine of absolute liability in its application to the blasting operations. There “The shock waves of a blasting operation, travelling through air and ground, damaged the plaintiffs' dwelling house, according to their writ. The defendant construction company is named as the responsible agency, but its acts are not condemned as wrongful or negligent.” 194 A2d at 398-99. The Court accepted plaintiff’s’ argument that they ought not to be barred from recovery for their damage because there were no reasonable measures, short of abandoning the operation, that would have prevented injury to their property.
These principles are generally followed in the United States. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 23 (2010). The overwhelming majority of those states that have adopted strict liability for dog bites have done so only by statute.
We see no reason to single out dog ownership for treatment that is different from that we apply to other human pursuits. If a change were warranted, it should be left to the Legislature. We are not prepared to depart from long-held principles of negligence to create a new field of strict liability.
Affirmed.
SCOVT note on strict liability at common law in Vermont.
The Court today reaffirms its early rejection of strict liability in dog bite cases, noting that “With the exception of ultra-hazardous activities such as blasting and keeping dangerous animals, there is no liability without a breach of a duty of care based on the defendant’s conduct.” Martin v. Christman, 2014 VT 55, ¶ 10.
The doctrine of strict liability for abnormally dangerous conditions and activities is a comparatively recent one in the law. See Bosley v. Central Vermont Public Service Corp., 127 Vt. 581, 582-85, 255 A.2d 671, 672-74 (1969). In Vermont the only recognized application of the doctrine involves blasting.
Here is a brief history.
The doctrine of absolute liability was jettisoned in Vermont as early as 1833 in the case of Lapham v. Curtis, 5 Vt. 371.
In Goupiel v. Grand Trunk Ry. Co., 94 Vt. 337, 343, 111 A. 346, a case involving a railroad torpedo, the Vermont Court rejected strict liability as a general doctrine.
Goupiel was recognized as good law as late as 1958, in Thompson v. Green Mtn. Power Corp., 120 Vt. 478, 482, 144 A.2d 786 (1958), a case involving dynamite and chickens. The Court said that the doctrine of absolute liability has not been accepted in this jurisdiction, citing Goupiel v. Grand Trunk R. Co., supra, 94 Vt. at page 343, 111 A. at page 348.
In Malloy v. Lane Construction Corporation, 123 Vt. 500, 194 A.2d 398 (1963) the Court overruled Goupiel v. Grand Truck Ry. Co., and adopted the doctrine of absolute liability in its application to the blasting operations. There “The shock waves of a blasting operation, travelling through air and ground, damaged the plaintiffs' dwelling house, according to their writ. The defendant construction company is named as the responsible agency, but its acts are not condemned as wrongful or negligent.” 194 A2d at 398-99. The Court accepted plaintiff’s’ argument that they ought not to be barred from recovery for their damage because there were no reasonable measures, short of abandoning the operation, that would have prevented injury to their property.
Surveying law elsewhere the Court said, “The use of dangerous explosives has been particularly subject to rules imposing strict liability….Negligence need not be demonstrated, but only the use of explosives and resulting damage.”
Malloy is the high water mark for Rylands v. Fletcher in Vermont.
In 1969 the Court expressly refused to extend the doctrine of strict or absolute liability, as recognized in Malloy, to accidents involving the transmission of electricity. Bosley v. Central Vermont Public Service Corp., 127 Vt. 581, 582-85, 255 A.2d 671, 672-74 (1969) .
In 1990 the Court also refused to extend the doctrine to public railroad crossings.Mobbs v. Cent. Vt. Ry., 155 Vt. 210, 218, 583 A.2d 566, 571 (1990).
In 2000 a case involve the escape of electicity from transmission lines came before the Court on a products liability theory. Darling v. Central Vt. Pub. Serv. Corp., 171 Vt. 565, 567, 762 A.2d 826, 828 (2000) Because the utility did not sell the electricity that allegedly caused the fire in this case, the Court held the doctrine of strict product liability did not apply. The issue of ultra-hazardous activities was not before the Court.
Malloy is the high water mark for Rylands v. Fletcher in Vermont.
In 1969 the Court expressly refused to extend the doctrine of strict or absolute liability, as recognized in Malloy, to accidents involving the transmission of electricity. Bosley v. Central Vermont Public Service Corp., 127 Vt. 581, 582-85, 255 A.2d 671, 672-74 (1969) .
In 1990 the Court also refused to extend the doctrine to public railroad crossings.Mobbs v. Cent. Vt. Ry., 155 Vt. 210, 218, 583 A.2d 566, 571 (1990).
In 2000 a case involve the escape of electicity from transmission lines came before the Court on a products liability theory. Darling v. Central Vt. Pub. Serv. Corp., 171 Vt. 565, 567, 762 A.2d 826, 828 (2000) Because the utility did not sell the electricity that allegedly caused the fire in this case, the Court held the doctrine of strict product liability did not apply. The issue of ultra-hazardous activities was not before the Court.
In Bosley the Court explained that strict liability has been confined to things or activities which are "extraordinary", or "exceptional", or "abnormal". (citing Prosser on Torts, 3rd Ed. Strict Liability, section 77, page 520. ) The Court noted the Restatement of Torts, section 519, 520 accepts the principle of Rylands v. Fletcher, 3 Hurl & C 744 (1865), but has limited it to an "ultra-hazardous activity", defined as one which "necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care" and "is not a matter of common usage."
~ Zphx
Thursday, June 12, 2014
Torts. Inspection by liability insurer was not an undertaking to assure workplace safety.
Murphy v. Sentry Insurance, 2014 VT 25 (07-Mar-2014)
Plaintiff appeals from a superior court decision that vacated a jury verdict in her favor and entered judgment as a matter of law for defendant Sentry Insurance. Plaintiff contends that there was sufficient evidence to establish Sentry’s liability for her husband’s workplace death under the Restatement (Second) of Torts § 324A based on a negligent inspection theory. We affirm.
Decedent died after a forklift he was operating for his employer, Pete’s RV Center, tipped over. Plaintiff alleged that Sentry was negligent in its inspection because it failed to discover and warn Pete’s about the danger of using unapproved towing attachments. Under § 324A one who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
Decedent died after a forklift he was operating for his employer, Pete’s RV Center, tipped over. Plaintiff alleged that Sentry was negligent in its inspection because it failed to discover and warn Pete’s about the danger of using unapproved towing attachments. Under § 324A one who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, orSee Derosia v. Liberty Mutual Insurance Co., 155 Vt. 178, 182-83, 583 A.2d 881, 883 (1990). We agree with the trial court that plaintiff did not provide sufficient evidence here to support a finding in her favor under any of the subsections of § 324A.
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
To fall within § 324A(a) a party must engage in negligent conduct that “directly increases risk of harm.” Mere negligence in failing to discover a danger does not subject the defendant to liability. Assuming that the risk of physical harm associated with the use of unapproved forklift attachments was present at the time of Sentry’s inspection, nothing Sentry did increased the risk of physical harm to decedent from such attachments. We agree with the trial court that Sentry’s liability cannot be premised on § 324A(a).
In assessing a party’s liability under § 324A(b), one must examine the nature and extent of a party’s undertaking. Sentry was acting as a general liability insurer, not a workers’ compensation insurer. Sentry’s role in this case was nothing like that of the workers’ compensation insurer in Derosia. The Sentry inspector walked through the premises with one of the owners of Pete’s, and took note of several obvious hazards. There was no evidence to show that the inspector undertook to inspect the forklift or the forklift attachment, nor evidence to show that the inspector undertook to inspect the entire physical premises to discover any safety hazards that might exist. Given the nature of his safety survey, no jury could reasonably have concluded that in conducting its inspection as Pete’s general liability insurer, Sentry thereby assumed any portion of Pete’s obligation to provide a safe workplace for the decedent.
Any “reliance” under § 324A(c) must be reasonable. No reasonable employer could believe under the circumstances here that the Sentry inspector had identified all existing hazards on the premises or that he had implicitly approved the use of unauthorized towing attachments. Any reliance on the safety survey as approving the practice of using forklifts with unapproved attachments would be unreasonable as a matter of law.
Restatement (Third) of Torts: Phys. & Emot. Harm § 43 (2012). This Section replaces Restatement Second of Torts § 324A. Id. comment a. ~ Zphx
Note. The Third Restatement now provides:
§ 43 Duty to Third Parties Based on Undertaking to Another
An actor who undertakes to render services to another and who knows or should know that the services will reduce the risk of physical harm to which a third person is exposed has a duty of reasonable care to the third person in conducting the undertaking if:
(a) the failure to exercise reasonable care increases the risk of harm beyond that which existed without the undertaking,
(b) the actor has undertaken to perform a duty owed by the other to the third person, or
(c) the person to whom the services are rendered, the third party, or another relies on the actor's exercising reasonable care in the undertaking.
Restatement (Third) of Torts: Phys. & Emot. Harm § 43 (2012). This Section replaces Restatement Second of Torts § 324A. Id. comment a. ~ Zphx
Wednesday, June 11, 2014
SCOVT ducks whether it is OK to ask if bar applicant has mental illness.
In re Hirsch, 2014 VT 28 (28-Mar-2014)
REIBER, C.J. Applicant appeals from a commissioner’s report recommending that he be denied admission to the Vermont bar on the basis of a current unfitness to practice law. Applicant challenges a number of Vermont admission practices and rules as violative of the Americans with Disabilities Act (ADA) and the U.S. and Vermont Constitutions. We adopt the commissioner’s recommendation, and deny the application for admission to the bar.
Applicant challenges questions 25 of the Vermont bar application: “25.Within the past five years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder?” The commissioner did not evaluate applicant’s arguments regarding the propriety of the application questions under the ADA and the U.S. and Vermont Constitutions, noting that their task was to make factual findings and recommendations, not to analyze legal claims. We need not address these claims either, as we conclude that the record amply supports the conclusion that applicant’s conduct, wholly apart from his mental health history or status, demonstrates his lack of fitness.
Applicant challenges questions 25 of the Vermont bar application: “25.Within the past five years, have you been diagnosed with or have you been treated for bipolar disorder, schizophrenia, paranoia, or any other psychotic disorder?” The commissioner did not evaluate applicant’s arguments regarding the propriety of the application questions under the ADA and the U.S. and Vermont Constitutions, noting that their task was to make factual findings and recommendations, not to analyze legal claims. We need not address these claims either, as we conclude that the record amply supports the conclusion that applicant’s conduct, wholly apart from his mental health history or status, demonstrates his lack of fitness.
Homestead rights. Moving into husband-owned vacation home and filing for divorce did not give wife a “homestead” that precluded husband from refinancing mortgage.
Brattleboro Savings and Loan Association v. Hardie, 2014 VT 26 (21-Mar-2014)
DOOLEY, J. Plaintiff Brattleboro Savings and Loan Association appeals a superior court decision ruling that Mangini holds title to a property, free and clear of a mortgage to plaintiff. The superior court ruled that the mortgage was inoperative because Mangini’s husband, defendant Richard Hardie, mortgaged the property without the participation of Mangini in violation of 27 V.S.A. § 141(a). We reverse.
“A homestead or an interest therein shall not be conveyed by the owner thereof, if married, except by way of mortgage for the purchase money thereof given at the time of such purchase, unless the wife or husband joins in the execution ” 27 V.S.A. § 141(a). The parties agree that § 141(a) would apply only if Mangini had a homestead exemption at the time that the new mortgage was created.
In 2002, Hardie borrowed $209,000 from Brattleboro Savings in order to purchase a vacation home. Hardie was married to Mangini at the time, but was the sole owner of the property, and Mangini did not sign either the promissory note or the mortgage. In April 2007, Mangini left the couple’s New Jersey home and moved into the vacation home. In February 2008, Mangini filed for divorce and claimed that the property had become her primary residence as of May 2007. The family court’s interim domestic order forbade either spouse to “remove, sell, assign, transfer, dispose of, lend, dissipate, mortgage or encumber any marital property. In April 2008, while Mangini was occupying the property and the divorce was pending, Hardie refinanced the mortgage on the property. The 2008 refinancing was completed without Mangini’s participation.
In January 2011, Brattleboro Savings commenced a foreclosure action on the property, naming only Hardie as a defendant. Mangini filed an answer asserting an affirmative defense that she had established a homestead interest in the property prior to the 2008 mortgage, and that therefore the 2008 mortgage was “inoperative to convey” her homestead interest. The court granted summary judgment in favor of Mangini, declaring the entire 2008 mortgage on the property unenforceable against Mangini.
The court reasoned that Mangini acquired an equitable interest in the property when she filed for divorce, thus fulfilling the dual requirement for establishing a homestead interest—occupancy and equitable title—as set out in Soter, 26 B.R. at 841 (holding that equitable or legal title is required to establish homestead exemption)
The issue is whether Mangini had an sufficient “equitable interest” at the time of the refinancing because the family court exercised jurisdiction over all of the marital property and she stood to be awarded any or all of it, regardless of which of the spouses held legal title.
We agree with Brattleboro Savings that Mangini did not acquire equitable title to the property by filing for divorce. Because Mangini did not acquire equitable title, she is not entitled to a homestead exemption from the 2008 mortgage, and the security created by the 2008 mortgage is valid against her.
27 V.S.A. § 101 requires that the property claimed as a homestead must be “owned” by the person claiming the exemption, and our precedents recognizing equitable-title interests must be viewed in that context. Equitable title is defined as “title that indicates a beneficial interest in property and that gives the holder the right to acquire formal legal title.” This is a rigorous definition—one that requires not just a possibility of acquiring title, but a concrete right. The jurisdictional statute on which the court relied, s 15 V.S.A. § 751, does not establish title or ownership in either party to a divorce. Its purpose is to give the court jurisdiction over all the property of the parties. Section 751 did not give Mangini equitable title to the property. Nor do we find that the family court’s injunction give either party a right to any item of property.
The trial court should have granted Brattleboro Savings’s motion for summary judgment with respect to Mangini’s claim of a homestead exemption, and denied Mangini’s motion.
BURGESS, J., concurring. I concur with the majority’s mandate as well as its underlying reasoning, but I also concur with Judge Bent’s opinion as an alternative basis for reversing the superior court summary judgment decisions.
BENT, Supr., J., Specially Assigned, concurring. I concur with the majority’s mandate because Mangini cannot rely upon 27 V.S.A. § 141(a) to avoid an existing mortgage that merely refinanced a debt on the homestead that existed before she established the homestead. I am concerned, however, with the implication in the majority’s opinion that spouses generally may not rely upon § 141(a) to avoid the consequences of a unilateral spousal conveyance unless they can prove an equitable interest equivalent to a contractual right to marital property owned solely by the conveying spouse. I believe that a more fundamental basis for rejecting Mangini’s reliance upon § 141(a) in the present circumstances is simply that the 2008 mortgage did not increase the debt existing at the time Mangini established a homestead in the Vermont property and thus may not be deemed inoperative under § 141(a).
Cause of fire not proved; fire investigator’s opinion excluded as unreliable.
Lasek v. Vermont Vapor, Inc., 2014 VT 33 (11-Apr-2014)
CRAWFORD, J. Plaintiff appeals the trial court's grant of judgment as a matter of law to defendants following a three-day jury trial in this negligence case. Plaintiff claims that the trial court erred in (1) excluding the testimony of plaintiff's expert witness on causation, (2) granting defendants' motion for judgment as a matter of law. We affirm.
The court excluded plaintiff's fire investigator's testimony pertaining to causation. The court explained that the fire investigator was not trained in chemistry, and did not know what chemicals were present, what their flammability or other characteristics were, or how they would interact with each other or flow through the air. The court noted that nicotine was present, but nicotine has a low flammability rating and is heavier than air. Even accepting that nicotine's properties could have been modified by a combination of other chemicals, there was no evidence of what the other chemicals were or how they would behave. The court concluded that the fire investigator could not offer his opinion regarding the cause of the fire because it did not meet the standards of Daubert and Rule 702.
"Proposed testimony must be supported by appropriate validation—i.e., `good grounds,' based on what is known." Daubert, 509 U.S. at 590. The trial court properly excluded the fire investigator's testimony because it was based on speculation. There was no evidence that chemicals were present in the lab in a quantity sufficient to ignite a flame at a space heater above and outside of the room on the night of the fire. Furthermore, the fire investigator was unable to offer a reliable explanation of how any nicotine vapors that were present would be able to travel up to the space heater because, as he conceded, nicotine vapors are heavier than air and would therefore tend to sink rather than rise. He opined that the combination of various chemicals might cause the vapors to rise, but admitted that he did not have a chemical engineering background and could not explain what mixture of chemicals might cause that to happen or whether it was likely to have occurred in this case. We agree with the trial court that the fire investigator's opinion about causation was not "based on sufficient facts or data," and was therefore unreliable. V.R.E. 702.
The trial court properly granted judgment as a matter of law in favor of defendants on plaintiff's claims of negligence. Without expert testimony on the issue of causation, plaintiff was unable to prove the use of liquid nicotine caused the fire. Without establishing the use of nicotine caused the fire, plaintiff also could not prove that landlord was negligent in leasing the space or in maintaining the leased space.
It was appropriate for the court to decline to apply res ipsa loquitur in this case. The doctrine of res ipsa loquitur allows an inference of negligence in certain cases, not causation. Established causation is a prerequisite to the application of the doctrine. Furthermore, plaintiff failed to show that a fire in a commercial warehouse is the sort of accident that ordinarily does not occur without negligence. See Metro. Prop. & Cas. v. Harper, 7 P.3d 541, 551 (Or. Ct. App. 2000) ("[R]es ipsa loquitur is not commonly applied to fires, because the cause of a fire is generally unknown [and] fires commonly occur where due care has been exercised as well as where due care was wanting." (quotation omitted)).
Attorney’s fees. Who prevailed? "Buckhannon" test rejected; “catalyst” theory applied.
Bonanno v. Verizon Business Network Systems 2014 VT 24 (28-Feb-2014)
REIBER, C.J. Plaintiff appeals from the superior court’s grant of summary judgment against him and in favor of his employer on claims stemming from an alleged breach of a settlement agreement with employer regarding his workers’ compensation claim. On appeal, plaintiff contends that the trial court abused its discretion by awarding inadequate attorneys’ fees. Employer cross-appeals and argues that the trial court abused in its discretion by awarding any attorneys’ fees. We affirm the trial court in all respects.
Here, the relevant statutory provision is 21 V.S.A. § 675(a). The key question faced by the trial court was whether plaintiff “prevail[ed]” on his claim for purposes of the statute. The court found that plaintiff did prevail on his claim that defendants had improperly failed to pay plaintiff’s medical bill because defendants “ultimately agreed to pay the medical bill while the litigation was pending.”
Defendants argue that plaintiff did not obtain judicial relief from the court and thus was not entitled to any fees or costs. Defendants argue that this Court should adopt the U.S. Supreme Court’s holding in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), that eligibility for attorneys’ fees requires a “material alteration of the legal relationship of the parties” effectuated by court action, such as an enforceable judgment on the merits. Id. at 604-05 (quotation omitted). The U.S. Supreme Court rejected the “catalyst theory,” holding that a “defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.” Id. Defendants argue that plaintiff did not bring about an alteration of the legal relationship between the parties sufficient to prevail under Buckhannon,
Here, defendants’ decision to pay plaintiff’s medical bill was not brought about by judicial order or other action bearing “judicial imprimatur.” Id. Plaintiff cannot prevail under the Supreme Court’s reasoning in Buckhannon; thus, we are squarely faced with the decision of whether to apply Buckhannon in our interpretation of § 675(a).
In Merriam v. AIG Claims Services, Inc., 2008 VT 8, ¶¶ 16, 22, 183 Vt. 568, 945 A.2d 882 (mem.), we expressly declined the opportunity to overrule our prior case law endorsing the catalyst theory. We take this opportunity to extend our holding in Merriam and explicitly preserve the catalyst theory as a possible route to attorneys’ fees under § 675(a).
To prevail for purposes of the catalyst theory, a party must demonstrate: (1) that the filing of the lawsuit was a “necessary and important factor in achieving” the other party’s change in conduct, and (2) a “colorable or reasonable likelihood of success on the merits.” Here, we agree with the trial court that defendants paid plaintiff’s medical bill as a direct result of plaintiff’s lawsuit to enforce the terms of the settlement agreement pursuant to 21 V.S.A. § 675(a). There is little doubt that plaintiff’s lawsuit was the catalyst for defendants’ action. As to the second factor,plaintiff’s claim was not “frivolous, unreasonable, or groundless” as a matter of law.
Plaintiff contends that the trial court’s grant of $1000 in attorneys’ fees and $250 in costs for prevailing on the medical bill issue was unreasonable, given the “time and effort” that counsel expended on the litigation. Trial courts have ample discretion in determining the amount of attorneys’ fees to award, and we will not disturb the court’s decision unless it has abused this discretion. Here, the trial court reduced the award from plaintiff’s requested $17,932.50 to $1000 in fees and $250 in costs. The court noted that the unpaid medical bill was a peripheral issue compared to the rest of the litigation, and that plaintiff did not provide the discovery supporting payment until compelled by the court. we hold that the peripheral nature of the medical bill issue and plaintiff’s unnecessary delay in providing discovery provide ample reason to affirm the court’s decision.
Affirmed.
How cited
REIBER, C.J. Plaintiff appeals from the superior court’s grant of summary judgment against him and in favor of his employer on claims stemming from an alleged breach of a settlement agreement with employer regarding his workers’ compensation claim. On appeal, plaintiff contends that the trial court abused its discretion by awarding inadequate attorneys’ fees. Employer cross-appeals and argues that the trial court abused in its discretion by awarding any attorneys’ fees. We affirm the trial court in all respects.
Here, the relevant statutory provision is 21 V.S.A. § 675(a). The key question faced by the trial court was whether plaintiff “prevail[ed]” on his claim for purposes of the statute. The court found that plaintiff did prevail on his claim that defendants had improperly failed to pay plaintiff’s medical bill because defendants “ultimately agreed to pay the medical bill while the litigation was pending.”
Defendants argue that plaintiff did not obtain judicial relief from the court and thus was not entitled to any fees or costs. Defendants argue that this Court should adopt the U.S. Supreme Court’s holding in Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), that eligibility for attorneys’ fees requires a “material alteration of the legal relationship of the parties” effectuated by court action, such as an enforceable judgment on the merits. Id. at 604-05 (quotation omitted). The U.S. Supreme Court rejected the “catalyst theory,” holding that a “defendant’s voluntary change in conduct, although perhaps accomplishing what the plaintiff sought to achieve by the lawsuit, lacks the necessary judicial imprimatur on the change.” Id. Defendants argue that plaintiff did not bring about an alteration of the legal relationship between the parties sufficient to prevail under Buckhannon,
Here, defendants’ decision to pay plaintiff’s medical bill was not brought about by judicial order or other action bearing “judicial imprimatur.” Id. Plaintiff cannot prevail under the Supreme Court’s reasoning in Buckhannon; thus, we are squarely faced with the decision of whether to apply Buckhannon in our interpretation of § 675(a).
In Merriam v. AIG Claims Services, Inc., 2008 VT 8, ¶¶ 16, 22, 183 Vt. 568, 945 A.2d 882 (mem.), we expressly declined the opportunity to overrule our prior case law endorsing the catalyst theory. We take this opportunity to extend our holding in Merriam and explicitly preserve the catalyst theory as a possible route to attorneys’ fees under § 675(a).
To prevail for purposes of the catalyst theory, a party must demonstrate: (1) that the filing of the lawsuit was a “necessary and important factor in achieving” the other party’s change in conduct, and (2) a “colorable or reasonable likelihood of success on the merits.” Here, we agree with the trial court that defendants paid plaintiff’s medical bill as a direct result of plaintiff’s lawsuit to enforce the terms of the settlement agreement pursuant to 21 V.S.A. § 675(a). There is little doubt that plaintiff’s lawsuit was the catalyst for defendants’ action. As to the second factor,plaintiff’s claim was not “frivolous, unreasonable, or groundless” as a matter of law.
Plaintiff contends that the trial court’s grant of $1000 in attorneys’ fees and $250 in costs for prevailing on the medical bill issue was unreasonable, given the “time and effort” that counsel expended on the litigation. Trial courts have ample discretion in determining the amount of attorneys’ fees to award, and we will not disturb the court’s decision unless it has abused this discretion. Here, the trial court reduced the award from plaintiff’s requested $17,932.50 to $1000 in fees and $250 in costs. The court noted that the unpaid medical bill was a peripheral issue compared to the rest of the litigation, and that plaintiff did not provide the discovery supporting payment until compelled by the court. we hold that the peripheral nature of the medical bill issue and plaintiff’s unnecessary delay in providing discovery provide ample reason to affirm the court’s decision.
Affirmed.
How cited
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