SCOVT affirms summary judgment for defendant in premises liability case for lack of evidence of notice of the hazard and, thus, of causation.

Jay Bernasconi v. City of Barre: Hope Cemetery, 2019 VT 6 [filed 1/25/2019]


ROBINSON, J. Plaintiff Jay Bernasconi appeals from the Superior Court’s grant of summary judgment to defendant City of Barre. Plaintiff fell into a hole and injured his knee while visiting family graves at Hope Cemetery, which the City owns. He contends that the City’s negligent maintenance of the Cemetery caused his injury. We conclude that even if the City was negligent in its inspection and maintenance practices, because plaintiff produced no evidence from which it is possible to determine how long the hole existed, he cannot show that the City would have found the hole if it followed different inspection and maintenance practices. Thus, he cannot establish that any breach of the City’s duty of care caused his injuries. We accordingly affirm

While causation is ordinarily a question for the jury, where a reasonable jury could not find that the defendant caused the plaintiff harm, a court must award judgment as a matter of law. See Collins v. Thomas, 2007 VT 92, ¶ 8 (“Although proximate cause ordinarily is characterized as a jury issue, it may be decided as a matter of law . . . where all reasonable minds would construe the facts and circumstances one way.” (quotations omitted)).

Even assuming that the City was not sufficiently diligent in inspecting for holes, without evidence as to how long the hole existed, plaintiff cannot prove that any lack of diligence by the City in failing to timely inspect for and repair holes caused his injury. In that respect, this case is analogous to Maciejko v. Lunenberg Fire District No. 2, 171 Vt. 542, 758 A.2d 811 (2000) (mem.) (without a finding as to how long an obstruction had been in a sewer main, the court erred in holding that the defendant’s lack of a maintenance plan or policy was the proximate cause of a backup.)

The facts that the workers did not always cover or report holes that they found, that City workers knew about the hole the day after plaintiff’s accident, and that one smiled and said “Call your lawyer” when plaintiff told them he had fallen in it the day before, are together not enough evidence for a reasonable jury to find that the City knew about the hole before the accident. That evidence supports only “conjecture, surmise or suspicion” that the City’s negligence caused plaintiff’s injury, and so is legally insufficient.

Because plaintiff has not offered sufficient evidence to establish causation, his claim for negligence fails.



SCOVT NOTE : As a general rule, "In order to impose liability for injury to an invitee by reason of the dangerous condition of the premises, the condition must have been known to the owner or have existed for such a time that it was his duty to know it." Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 264 A.2d 796, 799 (1970), quoting Dooley v. Economy Store, Inc., 109 Vt. 138, 142, 194 A. 375, 377, and Wakefield v. Levin, 118 Vt. 392, 397, 110 A.2d 712.

Forcier, however, announced a "business practice" exception that relieves plaintiffs of having to prove that a retail business owner had notice of a foreseeably dangerous condition caused by self-service operations. See Randall v. K-Mart Corp., 150 F.3d 210, 213 (2d Cir.1998). Under Vermont law, the existence of a reasonably foreseeable dangerous condition created by self-service retail operations effectively notifies the store owner of the dangerous condition, making the critical issue whether the store owner responded reasonably to protect its customers from the danger. Malaney v. Hannaford Bros. Co. 2004 VT 76 ¶ 13, 861 A. 2d 1069. The modification of premises liability law in slip-and-fall cases involving self-service retail stores — as endorsed Forcier — was aimed at relieving plaintiffs of the nearly insurmountable burden of proving how long the dangerous condition had existed. Id. ¶ 18.


Query whether plaintiffs should be relieved of this impossible burden in situations other than the self-service operation?