Bardwell Motor Inn, Inc. v. Accavallo

• Decision Date: 06 December 1977
• Docket Number: No. 191-77,191-77
• Citation: 381 A.2d 1061,135 Vt. 571
• Parties: BARDWELL MOTOR INN, INC. v. Bunnie ACCAVALLO, Lee Accavallo, and Louis T. Accavallo, collectively and d/b/a Royal Glass Company.
• Court: Vermont Supreme Court

Page 1061

381 A.2d 1061

135 Vt. 571

BARDWELL MOTOR INN, INC. v. Bunnie ACCAVALLO, Lee Accavallo, and Louis T. Accavallo,

collectively and d/b/a Royal Glass Company.

No. 191-77.

Supreme Court of Vermont.

Dec. 6, 1977.

Robinson E. Keyes of Ryan, Smith & Carbine, Ltd., Rutland, for plaintiff.

Henry C. Brislin of the office of Joseph M. O'Neill, Rutland, for defendants.

Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.

LARROW, Justice.

This case reaches us upon the pleadings, by interlocutory appeal, permitted by the trial court under V.R.A.P. 5(b). The ruling appealed from is a denial of defendants' motion to dismiss plaintiff's complaint upon the ground that it seeks contribution among joint tortfeasors, contrary to the law of this jurisdiction as set out in Howard v. Spafford, 132 Vt. 434, 321 A.2d 74 (1974).

The alleged facts are relatively simple. Plaintiff, a hotel operator, contracted with defendants to replace a glass panel in the exterior door to its main entrance. Without prior notice to plaintiff, the defendants removed the glass panel and a metal push bar from the door and left the premises, without advising plaintiff of the dangerous condition resulting from the door being unattended and without posting warning signs. One Caporale, a business patron, suffered a fall and resulting injuries while trying to open the door. Her ensuing claim was settled by the plaintiff for a substantial sum, which plaintiff seeks to recover on a theory of implied indemnity, with reasonable attorney fees and costs. The trial court, in denying the motion to dismiss, held plaintiff's theory a proper one, its negligence "passive" and distinguished from the "active negligence" of the defendants, and its remedy total indemnity rather than partial contribution. We decline to adopt the quoted terminology (Cf. Zaleskie v. Joyce, 133 Vt. 150, 158, 333 A.2d 110 (1975)), but affirm the result.

The theory upon which plaintiff here seeks to recover is a long recognized exception to the common law rule precluding contribution among or between joint tortfeasors. It finds support in our early cases, and recognizes a right of indemnity even though two parties may each be equally liable to a third, if (a) there is an express agreement or undertaking by one to indemnify the other, or (b) the circumstances are such that the law will imply such an undertaking. Thus, a railroad's failure to make required repairs to a crossing renders it liable to a town, as indemnitor, for recoveries obtained against the town under the statutes relating to town liability for defective highways, and for costs of defense. Town of Roxbury v. Central Vermont Railroad Co., 60 Vt. 121, 139, 14 A. 92 (1887); Town of Duxbury v. Vermont Central Railroad Co., 26 Vt. 751, 752 (1854). Our leading case recognizes the existence of the rule, although denying its application to particular facts. Spalding v. Administrator of Oakes, 42 Vt. 343, 347 (1869).

The applicable rule is clearly stated in Restatement of Restitution § 95 (1937):

Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other's duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.

Comment (a) to § 95 makes clear that the rule also applies to situations where, as here, a party has a nondelegable duty with respect to the condition of his premises, but has entrusted the...