SCOVT Affirms Rule 12 (b)((6) dismissal of wrongful death action against landlord, holding a landlord not in possession of defective property and with no “legal relationship” to injured person invited by tenant, has no liability for injuries regardless of foreseeability of harm

Fleurrey v. Department of Aging and Independent Living, 2023 VT 11 (filed 2/24/2023)

EATON, J. Plaintiff appeals from the civil division’s dismissal of her negligence claim against defendant landlord which alleged that landlord was responsible for the drowning death of a fifty-four-year-old man with developmental disabilities on the property that landlord leased to decedent’s caretakers.  Count III of the complaint alleged that landlord failed to fence the pond, thereby negligently failing to keep the property free of unreasonably dangerous conditions which it knew to exist. Landlord filed a Rule 12(b)(6) motion to dismiss Count III, arguing that it owed decedent no duty to fence the pond at the  property. The question on appeal is whether the civil division properly dismissed plaintiff’s claim. We conclude that it did and therefore affirm.

The purpose of a dismissal motion is to test the law of the claim, not the facts which support it. “[W]hether there is a cognizable legal duty that supports a particular tort action depends on a variety of public policy considerations and relevant factors.” Deveneau v. Wielt, 2016 VT 21, ¶ 8. The court considers “the relationship of the parties, the nature of the risk, . . . the public interest at stake, and the foreseeability of the harm.” Id. The existence of a duty is” primarily a question of law” and “[a]bsent a duty of care, an action for negligence fails.” Id.

More than a century ago we held that a suit could not be sustained against a landlord by a tenant’s invitee, explaining that “[l]iability for an injury due to defective premises ordinarily depends upon power to prevent the injury by making repairs, and therefor rests primarily upon him who has control and possession of the premises.” Beaulac v. Robie, 92 Vt. 27, 32 108 A. 88, 90 (1917).   This decision applies to this case. Here, plaintiff must seek redress from those who invited decedent to the property because the property was in their possession and under their control. Vermont law has recognized this rule for more than a century, and we find no reason to disturb this longstanding precedent now.

Plaintiff argues on appeal landlord owed decedent a duty to protect, relying mainly on §§ 343 and 343A of the Restatement (Second) of Torts. Sections 343 and 343A of the Restatement (Second) of Torts, covering duties that land possessors owe to their invitees. do not apply here because plaintiff did not allege that landlord was the “possessor” of the Elmore Road property. “Possessor” is  defined in Restatement (Second) of Torts § 328E as, ordinarily, “a person who is in occupation of the land with intent to control it.”

We reject Plaintiff’s further argument that a duty arises from foreseeability of harm and that this is jury issue.  Alleging foreseeable harm cannot sustain a negligence action where no legal relationship is alleged to have existed between parties. While Vermont courts consider foreseeability in determining whether one party owed a duty to another party in a negligence suit,  “[f]oreseeability of injury, in and of itself, does not give rise to a duty.” ¶ 8,2016 VT 21,¶ 8, ¶ 18.   Instead, a legal relationship must be alleged between parties before a court may reach the question of duty, See Haupt v. Triggs, 2022 VT 61, ¶ 12, (holding that no indemnification duty can arise where no legal relationship is alleged to have existed between parties).  Courts reach the duty question, where they may properly consider foreseeability, only where a legal relationship linking one party to the other is alleged because legal duties are dependent upon and coextensive with legal relationships. Haupt, 2022 VT 61, ¶ 12; Deveneau, 2016 VT 21, ¶ 18

Lastly, plaintiff argues that the civil division erred in drawing three inferences favorable to landlord: “[f]irst, the court made an inference that the landlord would not have reason to expect that Scott Fleurrey would nevertheless suffer physical harm from the pond because he lived with a caretaker at the property”; second, the civil division inferred “that the care provider would have Scott Fleurrey under her immediate supervision at all times”; and third, the civil division inferred “that the pond is a ‘natural’ pond.”  This Court “review[s] the trial court’s disposition of a motion to dismiss de novo, and may affirm on any appropriate ground.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 959 A.2d 990 (mem.).The inferences were harmless because plaintiff’s claim would not survive a dismissal motion in their absence.

Plaintiff’s claims cannot survive a dismissal motion, because (1) our precedents require an invitee to seek redress for injuries sustained on negligently maintained property from the land possessor who invited them to the defective property, rather than from the absentee landlord; (2) §§ 343 and 343A are inapplicable because plaintiff did not allege that landlord was the possessor of the Elmore Road property; and (3) no duty can arise where, as here, no legal relationship is alleged to have linked the parties.

Affirmed.

How cited

SCOVT NOTE: The rule of Beaulac v. Robie is codified in the First and Second Restatements as §354. This section and its exceptions in §§ 355 to 362  have been replaced by the  Restatement (Third) of Torts: Phys. & Emot. Harm  §§ 7 & 53 (2012), the latter of which is  titled “Duty of Lessors.”

In the view of the Third Restatement, “foreseeability” is an element in the determination of negligence but not  the determination of duty. Restatement (Third) of Torts: Phys. & Emot. Harm §7, comment j (2010) See Kuligoski v. Rapoza, 2018 VT 14 (Reiber CJ, dissenting)

 

Divided Court holds Grandparents not liable as a matter of law for grandson’s assault of worker at their property because there was no control and therefore no employer-employee relationship between grandparents and father that warranted imposing liability on grandparents for father’s negligent supervision of grandson.

Kuligoski v. Rapoza, 2018 VT 14 [2/16/2018]

SKOGLUND, J. This is the second case arising from the near-fatal assault of Michael Kuligoski by Evan Rapoza, who had previously been diagnosed with schizophreniform disorder. In this case, plaintiffs—members of the Kuligoski family—brought suit against Evan’s grandparents, claiming that they were liable for Evan’s assault of Mr. Kuligoski while Mr. Kuligoski was repairing the furnace at their rental property. Plaintiffs claim, among other things, that the grandparents are vicariously liable for Evan’s father’s negligent hiring or supervision of Evan, who was there to help his father repaint an apartment. On appeal, plaintiffs seek reversal of the trial court’s order granting grandparents summary judgment. Plaintiffs argue that the court erred by determining that grandparents could not be held vicariously liable for the attack because it was not reasonably foreseeable. We affirm, but on a different basis than that relied upon by the trial court.

As a preliminary matter, we reject grandparents’ argument that plaintiffs’ failure to appeal from the trial court’s order granting summary judgment to Evan’s parents estops plaintiffs from pursing their claim imputing negligence to the grandparents. There was no preclusive effect arising from the court’s summary judgment order in favor of the parents, because it was not a final judgment and the final judgment was timely appealed.

To prevail on its claim against grandparents, plaintiffs must demonstrate not only negligence on the part of father, but also an employer-employee relationship between grandfather and father that warrants imposing liability on grandparents for father’s negligence. In tort cases, we have relied upon the common law “right to control” test to determine whether a worker is an employee or an independent contractor. See Hathaway v. Tucker, 2010 VT 114, ¶ 23, 189 Vt. 126, 14 A.3d 968; RLI Ins. v. Agency of Transp., 171 Vt. 553, 554, 762 A.2d 475, 477 (2000) (mem.); LeClair v. LeClair, 2017 VT 34, ¶ 38, ___ Vt. ___, 169 A.3d 743 (stating that “essential element” in determining employer-employee relationship “is the right to control” (quotation omitted)); see also Restatement (Third) of Agency § 7.07(3)(a) (stating that, for purposes of that section, “an employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work”).

The undisputed facts show that father managed the out-of-state grandparents’ building and did renovation work that he recommended without any control, or expectation of control, by grandparents over the means or methods of his work. Because this is not a close case with respect to the primary right-to-control test, we need not look at the supplementary Restatement factors.


REIBER, C.J., dissenting. Grandparents may not have elected to exercise their right to control the means and methods of their son’s work as property manager of their apartment building, but that is not the test. The test is whether they had a right to control his work. The nature of the relationship strongly suggests that they did. At minimum, particularly given the inferences inherent in the relationship suggesting a right to control, it is for the jury, not this Court, to make that determination. A reasonable jury could reasonably infer from the facts that grandparents had the right to control the means and methods of father’s work at their apartment building, so as to make them potentially liable for father’s conduct in hiring and/or supervising grandson on the property. Further, I would adopt the American Law Institute’s view that foreseeability is primarily a consideration in determining whether a duty has been breached or whether the defendant’s conduct proximately caused the harm—both of which are ordinarily factual determinations within the purview of the jury. See Restatement (Third) of Torts: Physical & Emotional Harm § 7 cmt. j (2010) (stating that proper role for foreseeability is not in determining whether duty exists, which is purely legal question regarding whether to impose liability in category of cases, but rather in making factual determination as to whether duty was breached). Because I disagree with the majority’s determination as a matter of law that no employer-employee relationship existed between grandparents and father, and because I would also hold that the trial court erred by not allowing the jury to determine the foreseeability of the nature of the harm resulting from father bringing Evan to the work site, I respectfully dissent.

Older friend did not have duty to prevent / did not cause 15-year-old’s suicide.

Lenoci v. Leonard, 2011 VT 47 (mem.)

This case asks the Court to decide if an eighteen-year-old has a duty to control the behavior of a fifteen-year-old friend and, if the fifteen-year-old later commits suicide, whether the eighteen-year-old is at fault.  Plaintiff contends the trial court erred in finding Kayla did not owe Alex a duty. She suggests such a duty arose when Kayla, an eighteen year old, brought Alex, a minor, to a party with alcohol and adults present and recognized, or should have recognized, the "unreasonable risk of sexual assault" Alex faced. Plaintiff further argues that there was ample evidence supporting her theory that Kayla's negligence caused Alex's death and emotional distress and summary judgment was therefore premature. We affirm the trial court's grant of summary judgment to defendant and conclude she had no duty to intervene to prevent the tragedy that occurred. We additionally address the trial court's holding that Alex's suicide broke any causal connection to Kayla's actions.

Foreseeability of the risk is often a primary consideration on the issue of duty. We have recognized that "[a]ctionable negligence is made out only when it appears that a prudent person, in like circumstances, would have thought that injury would be likely to result" from the acts or omissions in question.To argue that Kayla could or should have anticipated Alex would suffer emotional distress as a result of the intercourse requires too much speculation and does not satisfy the need that the claimed injury be reasonably foreseeable.

Plaintiff essentially advocates that we find a duty simply because one girl was eighteen and the other was fifteen. The law does not impose such a duty in this situation—a duty for an eighteen-year-old to protect a high school friend who has not reached the age of majority from the consequences of the younger person's independent behavior.  There is no evidence that Kayla ever agreed to supervise and care for Alex or that the parents of Alex ever relinquished or sought to relinquish supervision of Alex to Kayla. As the trial court noted, "This was a case of two high school friends sneaking out together, unbeknown to either of their parents; not a situation where an adult agrees to care for another's child. Kayla did not become Alex's keeper simply because Kayla was 18 years old and Alex was not." We affirm the trial court's decision on this issue.

The trial court, however, noted that the wrongful death claim required further analysis because "a separate duty exists as to suicide." We address this issue to provide guidance to the trial bench in the future and to affirm the trial court's reasoning in this case.   

Generally speaking, voluntary suicide is viewed as an independent intervening act that breaks the causal chain and severs potential liability. However, the causal chain is not broken when an injured person becomes insane, even temporarily, and that insanity prevents one from realizing the nature of one's act or controlling one's conduct. Here, there was no evidence of an uncontrollable impulse on Alex's part to commit suicide.

A number of jurisdictions have recognized an additional exception to the general rule limiting liability in the event of a suicide, holding that liability exists because the defendant had a duty to prevent the suicide arising from the defendant's special relationship with the suicidal individual. This exception does not apply here. As we have found, the relationship between Alex and Kayla did not give rise to any "special relationship" that would impose a duty of care on Kayla.
There was substantial evidence that Alex had been expressing suicidal ideation for some time, long before she had sex at the apartment, and there was no evidence Kayla knew Alex was suicidal. Alex, for her own reasons, chose to end her life. Nothing Kayla did or did not do played a part in that decision.
Affirmed.

Torts. Concerted action in hunting accident not proved. Knowledge, foreseeability, duty and causation all lacking.

Lussier, Administrator v. Bessette, Lussier and Reed (2010-056) (19-Nov-2010) 2010 VT 104 (Reiber, C.J. ) 

The trial court granted summary judgment in favor of defendants in this wrongful death action.  On appeal, plaintiff argues the trial court erred in holding that defendants were not subject to concerted action liability for their participation in a hunt which culminated in the death of Rejean Lussier.  We affirm.

While on a joint hunt with defendants, Mr. Viens shot Lussier in boredom or poor judgment when  he looked through his scope at a tractor and fired. The pertinent inquiry for the trial court was whether defendants were engaged in concerted activity with Mr. Viens when he shot Mr. Lussier. As adopted by this Court, the Restatement sets out three alternative tests:

A person is subject to liability for harm resulting to a third person from the tortious conduct of another if the person: (1) commits a tortious act as part of a common design with the other; (2) gives substantial assistance to the other knowing that the other’s conduct is a breach of duty; or (3) gives substantial assistance to the other to accomplish a tortious result while also acting in a manner that is a breach of duty to the third person.   

Montgomery v. Devoid, 2006 VT 127, ¶ 33, 181 Vt. 154, 915 A.2d 270 (citing Restatement (Second) of Torts § 876 (1979)) 

At least a minimal knowledge requirement must be met before liability can be imposed on a common design theory. Defendants had no knowledge, nor any reason to suspect, that Mr. Viens was engaging in flagrant hunting violations in breach of his duty to Mr. Lussier.  Because defendants did not know that Mr. Viens was engaged in conduct constituting a breach of his duty to Mr. Lussier, they cannot be found guilty of concerted action liability under the first and second prong. 

 As to the third prong, there was nothing in defendant’s hunting plan—walking through the woods to flush a deer—that would have Mr. Viens’s hunting violations as its natural and probable result.  Neither were defendants’ actions a breach of some separate duty owed to Mr. Lussier.  It is not the duty of those in a hunting party to supervise other members.  Because defendants breached no separate duty to Mr. Lussier and because their actions did not proximately cause his death, they are not liable under this final prong.

Finally, the Restatement cautions that a person who encourages another to commit a tortious act  is ordinarily not liable for  acts of the other done in connection with the intended tortious act that were not foreseeable by him.  Restatement (Second) of Torts § 876, cmt. d (1979). It is generally not foreseeable that another hunter in hunting party will violate hunting safety rules. See, e.g., Kramschuster v. Shawn E., 565 N.W.2d 581 (Wis. 1997). Even assuming defendants’ plan was negligent, it was not foreseeable that as part of this plan that Mr. Viens would engage in the hunting violations that proximately caused Mr. Lussier’s death. Defendants may have  created the risk that someone would be shot when Mr. Viens attempted to shoot a dear in accordance with the group’s hunting plan,  but Mr. Viens was not acting pursuant to the plan when he looked through his scope at the tractor in boredom or poor judgment. 

Because Mr. Lussier’s death was the natural and probable result of Mr. Viens’s conduct, but not of defendants’, defendants cannot be found liable.