Negligent misrepresentation. Non-client did not justifiably rely on attorney's statement where non-client was in a position to know from a “simple review of the governing statutes” that it was false.

Burgess v. Lamoille Housing Partnership, 2016 VT 31 (filed March 11, 2016).

Plaintiff appeals the grant of summary judgment on plaintiff's claim that he is entitled to damages from the town attorney for negligently misrepresenting that he would receive a tax collector's deed to property if he redeemed it from fax sale. We affirm.

The complaint alleged that the attorney, in her capacity as attorney and agent for the municipal defendants, told plaintiff that if he submitted to her $1373 he would acquire a right to receive a tax collector's deed to the subject parcel one year and a day after the date of the tax. We agree with the superior court that, apart from the issue of whether the attorney owed a duty to plaintiff,[i] plaintiff cannot prevail on his negligent misrepresentation claim because, under the circumstances of this case, he cannot show that he justifiably relied upon the alleged statement.

Justifiable reliance is determined under an objective standard; we have upheld a jury instruction stating that "[p]laintiffs may justifiably rely upon a representation when the representation is not obviously false and the truth of the representation is not within the knowledge of, or known by plaintiffs." See McGee v. Vermont Fed. Bank, 169 Vt. 529, 531, 726 A.2d 42, 44-45 (1999) (mem.) (quotation omitted) (emphasis in original). In McGee, we held that the plaintiff homebuyers failed to state a cause of action for negligent representation against the defendant bank because they did not indicate in their pleadings that they were unable to verify information provided by the bank concerning the status of home insurance coverage or that they could not have obtained that information directly from the sellers or the insurance company.

In was not reasonable as a matter of law for plaintiff to rely on statements by the taxing authority's attorney, particularly given plaintiff's acknowledgement that he was familiar with the tax sale redemption process. Plaintiff had a college degree in legal assisting and had worked as a paralegal for ten years and educated himself as to the tax sale and redemption process by reading the relevant statutes and case law. A simple review of the governing statutes reveals that redemption of property sold at a tax sale does not entitle the redeeming party to a collector's deed.

Plaintiff was in a position to know, or at least ascertain the falsity of any representation made to him by the attorney. Under these circumstances, plaintiff cannot demonstrate justifiable reliance on the alleged statement made by the attorney- Cf. Restatement (Second) of Torts § 552A ("The recipient of a negligent misrepresentation is barred from recovery for pecuniary loss suffered in reliance upon it if he is negligent in so relying"); Sain v. Cedar Rapids Cnty. Sch. Dist., 626 N.W.2d 115, 125 (Iowa 2001) (noting that tort of negligent representation "is generally thought to only apply to business transactions")
__________
[i] Related to questions of duty and reliance is the requirement in § 552(1) that the defendant have a pecuniary interest with respect to the information given. "If [the defendant] has no pecuniary interest and the information is given purely gratuitously, [the defendant] is under no duty to exercise reasonable care and competence in giving it." Restatement (Second) of Torts § 552(1) cmt. c. Giving the information "in the course of the defendant's business, profession or employment is a sufficient indication that [the defendant] has a pecuniary interest in it, even though [the defendant] receives no consideration for it," but is not "conclusive." Id. cmt. d. If the information is supplied purely gratuitously, the recipient of the information is not justified in relying upon it. Id. Here, plaintiff did not dispute the facts, as stated by the attorney, that she was compensated immediately after the tax sale by receiving fifteen percent of the delinquent tax, and did not receive any further compensation in connection with the tax sale of the subject property or her contact with plaintiff

Torts. Duty. Premises liability. Horses. Landowner had no duty to passing motorist to prevent escape of horse not in his control.

DEVENEAU v. WIELT, 2016 VT 21 (filed March 4, 2016).

SKOGLUND, J. Plaintiff was injured while diving in a public highway when he struck a horse owned by Susan Wielt, who leased a house and land from Brian Toomey. Toomey moved for summary judgment, arguing he had no duty to keep the horse enclosed or to prevent its escape. The trial court granted summary judgment, and plaintiff appeals. We hold that Toomey owed no duty to plaintiff and affirm.

Toomey gave Wielt permission to keep two horses, an Arabian mare and a thoroughbred on his property and to pasture them there on the condition that Wielt take responsibility for all care of the horses and maintain a fence to keep them enclosed.

Our question on appeal is: What duty, if any, runs from Toomey, as noncustodial landowner, to plaintiff? Vermont common law imposes a general duty of ordinary care: to act as a reasonably prudent person would in similar circumstances. But whether there is a cognizable legal duty that supports a particular tort action depends on a variety of public policy considerations and relevant factors and is primarily a question of law.

Our decision in Wright v. Shedd . 122 Vt. 475, 177 A.2d 240 (1962). did not go so far as to absolve all landowners of the duty to prevent harm from horses that escape from their property, but it implied that such a duty will not attach absent some involvement in the ownership, management, or control of the horse. Ownership of the land was not enough 20 V.S.A. § 3349(a) and other provisions demonstrate the Legislature's intent that only the horse's "owner or keeper" is liable in a civil action for damages suffered as a result of a horse's escape.

We reject plaintiff’s argument that landowner owes a duty pursuant to Restatement (Second) of Torts § 379A (1965). Under that provision, a landowner may be liable to persons outside of the land caused by activities of the tenant "if, but only if," the landowner "knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken." We cannot say there is an unreasonable risk in the ordinary course of pasturing that horses contained by a fence will escape and pose a danger to passing motorists.

Because landowner had no connection to the ownership, management, or control of the injurious horse or of the fence containing it, we cannot impose a duty on him to prevent that horse from escaping and harming passing motorists. We therefore affirm the trial court's grant of summary judgment to Toomey.

ROBINSON, J., dissents because of the “troubling implications of the majority's suggestion that only the owner of a farm animal can be liable in tort to a driver injured on a public highway when the animal escapes.” She would hold the existence of a duty on the part of a landowner to exercise reasonable care to avoid harm to third parties outside the land resulting from activities conducted upon the land depends on the landowner's knowledge of the activities and ability to exercise control with respect to those activities, and that there was s more than sufficient evidence on the issues of knowledge and control to avoid summary judgment: (1) evidence that Toomey never transferred possession of the property that was inadequately fenced; and (2) evidence that, while retaining the ability to control activities on the property, Toomey was fully aware of the state of the fencing.