Birkenhead v. Coombs

• Decision Date: 07 June 1983
• Docket Number: No. 569-81,569-81
• Citation: 465 A.2d 244,143 Vt. 167
• Court: Vermont Supreme Court
• Parties: David J. BIRKENHEAD and Marie Birkenhead v. Ann COOMBS.

Page 244

465 A.2d 244

143 Vt. 167

David J. BIRKENHEAD and Marie Birkenhead v. Ann COOMBS.

No. 569-81.

Supreme Court of Vermont.

June 7, 1983.

Paul S. Kulig of Keyser, Crowley, Banse, Abell & Facey, Rutland, for plaintiffs-appellants.

Sam Farrington, Vermont Legal Aid, Inc., Rutland, for defendant-appellee.

Before BILLINGS, C.J., and HILL, UNDERWOOD, PECK and GIBSON, JJ.

HILL, Justice.

This is an action for ejectment based upon an alleged failure to pay rent. Defendant, by way of counterclaim, sought relief for plaintiffs' alleged breach of the implied warranty of habitability, for the intentional infliction of emotional distress, and for the costs of improvements which she had made to her apartment. After trial by jury, plaintiffs were awarded $585 for their claim of back rent, while defendant was awarded $168.50 for improvements made to the premises, $430 for breach of the implied warranty of habitability, and $500 actual/$750 punitive damages for plaintiffs' intentional infliction of emotional distress. Following the denial of their motions for judgment notwithstanding the verdict, V.R.C.P. 50, and for new trial, V.R.C.P. 59, plaintiffs filed a timely notice of appeal. We affirm.

We begin with a review of the facts in a light most favorable to the prevailing party below. On March 18, 1980, defendant and her two year old child began renting an apartment for $235 per month at 30 Elm Street in Rutland. Prior to the commencement of the tenancy, plaintiffs, through their agent, orally promised to provide heat and all necessary repairs to the apartment. They also agreed to clean the soiled carpet and supply defendant with paint to cover the apartment's damaged walls, no later than April 1, 1980. Upon moving into the apartment, defendant quickly discovered that in addition to the damaged walls and carpet, the toilet and shower were not working properly. Despite defendant's repeated requests to fix the toilet, plaintiffs did nothing, thus leaving defendant with the task of manually emptying the contents of the toilet after each use.

The situation persisted for a full month until defendant, unable to bear the growing stench in the apartment, hired a local plumber to fix the toilet and shower. When presented with the plumbing bill, defendant contacted plaintiffs to explain that her monthly welfare grant did not afford her the opportunity to pay both the rent and the plumbing bill. Consequently, defendant paid the bill with plaintiffs' consent, and then deducted the cost of repairs from her May rent payment.

Thereafter, defendant's relationship with plaintiffs steadily deteriorated. Throughout the course of the next few months, plaintiffs resorted to numerous "self-help" actions in an effort to force defendant to vacate the apartment. Specifically, plaintiffs disconnected, on separate occasions, defendant's heat, hot water, and electricity. Furthermore, they removed defendant's kitchen stove, and repeatedly threatened to "board up" the premises and "kick out" defendant and her child. Despite these tactics, as well as their failure to fulfill their promises to clean the carpet and supply the paint, defendant continued to pay her monthly rent, less the cost of repairing and restoring the disrupted services. In mid-July of 1980, plaintiffs initiated this ejectment action and refused to accept further rent from defendant. In mid-September of 1980, defendant and her child vacated the premises.

On appeal, plaintiffs assert that the trial court abused its discretion when it denied their motions for judgment notwithstanding the verdict and for a new trial on defendant's claims of breach of warranty and intentional infliction of emotional distress. In evaluating an allegation of abuse of discretion, we must determine whether the evidence, viewed in a light most favorable to defendant, establishes a cause of action in her favor. Hershenson v. Lake Champlain Motors, Inc., 139 Vt. 219, 222, 424 A.2d 1075, 1077 (1981). "Eliminating consideration of weight, credibility and conflicting inferences, the question is whether the result reached by the jury is sound in law on the evidence produced." Id. (citing Perkins v. Factory Point National Bank, 137 Vt. 577, 579, 409 A.2d 578, 579 (1979)).

With regard to the breach of warranty claim, plaintiffs offer three reasons to support their argument that the jury award of $430 was improper. They essentially argue: (1) that defendant failed to introduce sufficient evidence to enable the jury to assess damages for the breach; (2) that the damages assessed were excessive; and (3) that the trial court's decision to allow defendant a recovery for the improvements made to the premises and for the breach of the implied warranty of habitability constituted a double recovery. We will take plaintiffs' arguments in order.

Plaintiffs concede at the outset that the implied warranty of habitability applies to residential leases. Given the doctrine's applicability, and given plaintiffs' challenge to the sufficiency of the evidence to support the jury award, it is essential to determine the appropriate measure of damages. The trial court instructed the jury to assess the diminution in value of the rented premises in order to compute defendant's damages for the breach of warranty:

The measurement of her damages is the monthly rent less that amount reasonably found by you to be the value of the services or facilities she did not have. Be careful to apply this formula only to those periods of time when you determine the services or service was not functioning or was substantially impaired.

In reviewing the validity of the trial court's instruction, we note that the diminished value approach has been used by this Court in analogous settings. See, e.g., Bolkum v. Staab, 133 Vt. 467, 346 A.2d 210 (1975) (for breach of the implied warranty against structural defects in the sale of a newly constructed house); Berlin Development Corp. v. Vermont Structural Steel Corp., 127 Vt. 367, 250 A.2d 189 (1968) (for breach of a covenant of quiet enjoyment). In addition, this approach is widely used in those jurisdictions which have expressly recognized the applicability of the implied warranty of habitability to residential leases:

Inasmuch as the duty of the tenant to pay rent is coextensive with the landlord's duty to maintain the premises in habitable condition, the proper measure of damages for breach of the warranty is the difference between the fair market value of the premises if they had been as warranted, as measured by the rent reserved under the lease, and the value of the premises during the period of the breach.

Park West Management Corp. v. Mitchell, 47 N.Y.2d 316, 330, 391 N.E.2d 1288, 1295, 418 N.Y.S.2d 310, 317 (1979); see also McKenna v. Begin, 5 Mass.App. 304, 309, 362 N.E.2d 548, 553 (1977). When evaluating damages under this standard, the finder of fact must weigh both the severity and duration of those conditions which led to the breach, as well as any remedial steps taken by the landlord to abate the conditions. Park West Management Corp. v. Mitchell, supra.

A review of the record in this case reveals extensive evidence depicting the damaged walls, soiled carpet, lack of heat, disconnected...