Bacon v. Lascelles

• Citation: 678 A.2d 902,165 Vt. 214
• Decision Date: 17 May 1996
• Docket Number: No. 95-080,95-080
• Parties: Gail BACON v. Clodomir LASCELLES, et al.
• Court: Vermont Supreme Court

Page 902

678 A.2d 902

165 Vt. 214

Gail BACON v. Clodomir LASCELLES, et al.

No. 95-080.

Supreme Court of Vermont.

May 17, 1996.

Frank E. Talbott of Wilson Powell Lang & Faris, Burlington, for plaintiff-appellant.

Marc B. Heath and Carol L. Shea of Downs Rachlin & Martin, P.C., Burlington, for defendant-appellee Lascelles.

Neil H. Mickenberg of Mickenberg, Dunn, Sirotkin & Dorsch, for defendant-appellee Burlington Housing Authority.

Before ALLEN, C.J., and GIBSON, ¹ DOOLEY, MORSE and JOHNSON, JJ.

ALLEN, Chief Justice.

Plaintiff Gail Bacon appeals from the grant of summary judgment for defendant Burlington Housing Authority (BHA) and from an adverse verdict and judgment in favor of defendant Lascelles in an action for the wrongful death of her son. We affirm.

On August 6, 1990, the decedent died during a fire in a two-story apartment owned by defendant Lascelles. Plaintiff sued defendant Lascelles claiming he negligently built and maintained the apartment. She alleged that the decedent could not escape the apartment because a second floor bedroom window did not open sufficiently in violation of applicable safety codes.

Plaintiff also sued the BHA claiming it failed to properly inspect the apartment. At the time of the fire, decedent was a guest of the apartment's tenants. The tenants participated in the Section 8 housing program, which is a federal rent subsidy program implemented nationally by the United States Department of Housing and Urban Development (HUD) and administered locally by the BHA. By agreement with HUD, ² the BHA is required to inspect rental housing for compliance with the Federal Housing Quality Standards (HQS) prior to occupancy by recipients of federal rent subsidies.

On December 8, 1989, the BHA inspected defendant Lascelles's apartment for compliance with the HQS. ³ The inspector informed defendant Lascelles and the tenants of the results of the inspection, and both parties signed the Dwelling Inspection Checklist. Under the category "Fire Exits" on the Dwelling Inspection Checklist, the BHA inspector checked "YES PASS." This conclusion was based on the fact that the first floor of the apartment had two doors leading outside, one to the driveway and another to a back deck. The inspector could not recall if she inspected the second floor bedroom windows, but her standard practice was to determine if the second floor windows opened but not to measure the window opening.

On October 27, 1993, the BHA filed a motion for summary judgment arguing that it owed decedent no duty of reasonable care. The trial court denied the motion concluding that the BHA "owed [decedent] a duty to act reasonably in inspecting the Section 8 premises." ⁴ The court went on to say:

It need not assure, unlike the owner of the premises, that the unit meets every safety condition existing at law. BHA has only assumed a duty to inspect for the acceptability criteria in the federal regulations. In this case, the building needed to contain an alternate means of egress in case of fire.

On October 20, 1994, the BHA filed a second motion for summary judgment arguing that it did not breach its duty to the decedent. On January 5, 1995, the trial court granted summary judgment for the BHA concluding that "it did not breach its duty but acted reasonably in its inspection of this Section 8 premises and in determining that the building met the acceptability criteria outlined by the federal regulations." In support of this conclusion, the trial court deferred to the BHA's interpretation of the HQS because it was responsible for their implementation.

On pretrial motions, the court concluded that defendant Lascelles maintained the apartment in violation of the 1989 Vermont Fire Prevention and Building Code. Consequently, the court allowed defendant Lascelles to offer evidence of prior inspections to rebut the presumption of negligence created by this finding. Defendant offered evidence of the December 1989 BHA inspection, a June 1990 BHA inspection, ⁵ and a July 1988 Burlington Minimum Housing Standards inspection. The jury returned a verdict for the defendant, and plaintiff appealed.

I.

Plaintiff first argues that the trial court erred in granting the defendant BHA's motion for summary judgment and that the court erred when it deferred to the BHA's interpretation of the HQS. We conclude that, while the trial court should not have deferred to the BHA's interpretation of the HUD regulations, summary judgment was proper.

We review a motion for summary judgment under the same standard as the trial court: summary judgment is appropriate only when the record clearly shows that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Cavanaugh v. Abbott Laboratories, 145 Vt. 516, 520, 496 A.2d 154, 157 (1985); V.R.C.P. 56(c). In making this determination, we regard as true all allegations of the nonmoving party that are supported by admissible evidence, and we also give the nonmoving party the benefit of all reasonable doubts and inferences. Messier v. Metropolitan Life Ins. Co., 154 Vt. 406, 409, 578 A.2d 98, 99-100 (1990). Here, neither the BHA nor plaintiff dispute the relevant facts about the features of the apartment and the nature of BHA's inspection of the apartment. The proper interpretation of the HQS and whether BHA's inspection complied with the HQS are issues of law that must be determined on BHA's motion for summary judgment.

The trial court deferred to the BHA's interpretation of the HQS, citing Rogers v. Watson, 156 Vt. 483, 489, 594 A.2d 409, 412 (1991) ("[A]bsent compelling indications of error we must accept the interpretation of administrative regulations by the agency responsible for their implementation."). Plaintiff argues that the BHA's interpretation should be given no deference because HUD, not the BHA, promulgated the regulation. We agree.

The policy justifications for the deference rule--such as agency expertise, familiarity with purpose of the regulation, and the express delegation of legislative authority to promulgate regulations--are lacking when the agency is not interpreting its own regulation. R. Weaver, Judicial Interpretation of Administrative Regulations: The Deference Rule, 45 U.Pitt.L.Rev. 587, 609-10 (1984); I K. Davis & R. Pierce, Administrative Law Treatise § 6.10, at 282 (1994). Giving deference to the BHA is also contrary to federal administrative law. Tsosie v. Califano, 651 F.2d 719, 722 (10th Cir.1981) ("The Secretary's construction is not entitled to special deference to the extent it rests on the interpretation of another agency's statutes and regulations."); accord Whaley v. Schweiker, 663 F.2d 871, 873 (9th Cir.1981).

The Section 8 program requires the BHA to conduct inspections to determine whether participating rental housing complies with the access acceptability criteria in the HQS, found at 24 C.F.R. § 882.109(j) (1994). The access acceptability criteria requires that "[t]he building shall provide an alternate means of egress in case of fire (such as fire stairs or egress through windows)." Id. (emphasis added). Plaintiff argues that "means of egress" is defined by other safety codes as "a continuous and unobstructed way of exit travel from any point in a building or structure to a public way." National Fire Protection Assoc., Life Safety Code Handbook § 5-1.2.1, at 40 (J. Lathrop ed., 4th ed. 1988) (emphasis added); Building Officials & Code Administrators Int'l, Inc., The BOCA National Building Code, Definitions, at 33 (10th ed. 1987). Plaintiff argues for this interpretation so that she can further argue that the stairwell between the first and second floors of the apartment, combined with any exit on the first floor of the apartment, constituted one means of egress but that the second floor of the apartment lacked an alternative means of egress such as through a window.

The plain language of the HQS is contrary to plaintiff's interpretation. First, the access acceptability criteria reads "building," not "from any point in a building." Second, the access acceptability criteria does not require windows or prescribe the dimensions of window openings but merely mentions windows as an example of a means of egress. Third, the HQS contain window requirements only in the acceptability criteria for illumination and air quality. See 24 C.F.R. §§ 882.109(e)(2) (illumination: sleeping rooms shall include at least one window), 882.109(g)(2) (air quality: bathroom areas shall have at least one window that opens or other adequate exhaust ventilation).

The Housing Inspection Manual, the Public Housing Agency Administrative Practices Handbook for the Section 8 Existing Housing Program, and the pamphlet A Good Place to Live!, all published by HUD, provide additional information on the meaning of the HQS.

The Housing Inspection Manual states that an acceptable fire exit "means that the building must have an alternate means of egress that meets local or state requirements." Office of Housing, U.S. Dept. of Housing and Urban Development, Housing Inspection Manual § 8.2, at 119 (March 1985). Thus, HUD intended that public housing agencies such as the BHA would rely on local codes when determining the adequacy of emergency exits in Section 8 rental housing.

Plaintiff argues that the Life Safety and BOCA Codes are the applicable local codes. The Life Safety Code was not adopted until the 1992 Burlington City Ordinance and was therefore not applicable when the fire occurred in August 1990. Burlington, VT., Building & Building Construction ch. 8, art. I, § 8.2(a) (1992). The 1981 BOCA Code, however, had been adopted by reference in the 1983 City of Burlington Ordinance. Burlington, VT., Building & Building Construction ch. 8, art. I, § 8.2(a) (1983). The 1981 BOCA Code required that sleeping rooms below the fourth floor have an emergency egress and that windows have minimum opening dimensions. Building Officials & Code...