Plaintiff in premises liability case had sufficient evidence that defendant had a duty, despite the obvious danger, not to order plaintiff roofer to go onto a frosted roof.

LeClair v. LeClair, 2017 VT 34 (May 12, 2017)

DOOLEY, J.. Plaintiff appeals from the trial court's grant of summary judgment to defendant, plaintiff's grandfather, in this negligence action. Plaintiff argues that the trial court erred by concluding that defendant owed him no duty. We reverse and remand.

Plaintiff fell from a second-story roof and landed on the paved driveway below, sustaining serious and permanent head and spinal injuries while working to help replace the roof on the building in which defendant has his office. Plaintiff claims that he initially decided not to work on the roof because the frost made it slippery but changed his mind when defendant arrived at the property and ordered him to begin work. Plaintiff contends that the facts alleged in the complaint and that emerged through discovery presented a jury question as to whether defendant breached his duty to exercise reasonable care in demanding that plaintiff get on the frost-covered roof.

The critical issue in this case is whether defendant, under the circumstances, should have expected that plaintiff would not protect himself from the danger that was open and obvious to both of them. Under § 343 of the Restatement (Second) of Torts a "possessor of land" may be liable "for physical harm caused to his invitees by a condition on the land if the possessor "should expect that they will not discover or realize the danger, or will fail to protect themselves against it." Section 343 should be read together with § 343A, which provides that "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts § 343A

We recognize that some of our older cases concerning this area of the law have found no liability to an invitee when an injury was caused by a condition that was obvious or known to the invitee. These decisions arose when contributory negligence was a total defense to negligence liability.We concur with the holding of Wisdom v. TJX Companies, Inc., 410 F. Supp. 2d 336, 344 (D. Vt. 2006), that while "Vermont law has traditionally afforded a measure of protection to business owners whose invitees injure themselves by disregarding obvious dangers," this protection now bears more on the plaintiff's comparative negligence than on the defendant's duty of care.

We conclude that the facts of this case, as alleged, do not preclude a finding of duty under § 343 and § 343A, The key alleged fact in this case is that defendant, in a position of authority vis-à-vis plaintiff, ordered him to go onto the frosted roof despite the obvious danger involved. A jury could conclude that, in ordering plaintiff to climb onto the roof despite its dangerous condition acknowledged by both defendant and plaintiff, defendant should have anticipated that the condition of the roof presented an unreasonable risk of harm to plaintiff. A jury could conclude that defendant breached a duty to protect plaintiff from encountering an open-and-obvious dangerous condition on his property by demanding that he encounter the dangerous condition. Accordingly, the superior court's grant of summary judgment to defendant on plaintiff's premises liability claim was inappropriate

ROBINSON, J., concurring in part and dissenting in part. I cannot join the majority's conclusion that defendant, as the property owner, can be held liable pursuant to the common law of premises liability for injuries resulting when a roofer climbed onto a frost-covered roof, stripped of shingles and covered with underlayment, thereby encountering dangers that were obvious and acknowledged by plaintiff before he climbed onto the roof. The majority's analysis suffers from two critical flaws: First, it misconstrues the scope of a landowner's common law duties concerning the condition of the premises in circumstances like this. Second, it rests on the assertion that defendant's familial relationship with plaintiff gave defendant "authority" over plaintiff such that defendant was legally accountable as landowner for plaintiff's choices.

I is difficult to imagine what the landowner's duty would be in this case. It clearly isn't a duty to warn, because there is no dispute that plaintiff was fully on notice of the danger. The reality is, this is not really a premises liability case at all. That is, plaintiff's claim is not really predicated on unreasonably dangerous conditions of the premises. Plaintiff's claim is that his grandfather goaded him into doing something dangerous, and he was injured as a result. This isn't a premises liability claim. It is not tied to defendant's status as landowner, or a breach of any duty with respect to the condition of the land.

In connection with the premises liability claim, there is no evidence that plaintiff was not competent, or had a special, cognizable vulnerability. Plaintiff was undisputedly a mature, twenty-seven-year-old man at the time of the accident. If there is a tort theory that supports liability when a defendant urges another competent adult to undertake dangerous activity, plaintiff has not pled or argued it.

I dissent from the majority's analysis of the premises liability claim. I would affirm that claim.


SCOVT NOTE: An example of where the Restatement says the possessor “should anticipate the harm despite such knowledge or obviousness” is where “the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Restatement (Second) of Torts § 343A, comment f. (1965) The current Restatement's view on “open and obvious" dangers is stated in Restatement (Third) of Torts: Phys. & Emot. Harm § 51 (2012), comment k.  Compare Menard v. Lavoie, 174 Vt. 479, 806 A.2d 1004, 1006 (2002) (mem.) (homeowners not negligent as a matter of law for spiral staircase fall because "[w]hatever dangers the stairs posed were obvious to any observer, and were well known by plaintiff”) with Ainsworth v. Chandler, 2014 VT 107  (holding a reasonable jury could conclude that either the danger on a stairway was not open and obvious or "that defendant should have foreseen the harm even if the danger was obvious.").

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.