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.
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