O'Brien v. Island Corp., 87-061

• Decision Date: 28 June 1991
• Docket Number: No. 87-061,87-061
• Citation: 596 A.2d 1295,157 Vt. 135
• Parties: Charles P. O'BRIEN v. The ISLAND CORPORATION.
• Court: Vermont Supreme Court

Page 1295

596 A.2d 1295

157 Vt. 135

Charles P. O'BRIEN v. The ISLAND CORPORATION.

No. 87-061.

Supreme Court of Vermont.

June 28, 1991.

Thomas W. Costello and Ardith L. Baldwin of Thomas W. Costello, P.C., Brattleboro, for plaintiff-appellant.

Miller, Cleary & Faignant, Ltd., Rutland, for defendant-appellee Island Corp.

Lisa Chalidze of Hull, Webber & Reis, Rutland, for defendant-appellee Aetna Cas. & Sur. Co.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

ALLEN, Chief Justice.

Plaintiff appeals from a judgment for defendant Island Corporation (Island) following a jury verdict in its favor and the grant of summary judgment for defendant Aetna Casualty and Surety Company (Aetna). We affirm.

The action resulted from personal injuries sustained by plaintiff in a building owned by Island and insured by Aetna. At the time of the accident, plaintiff was employed by a corporation which had leased the premises from Island. One of plaintiff's duties was to keep the boiler on the premises operating so as to prevent the pipes and the heating system from freezing. In the course of this employment he entered the boiler in order to remove ashes from a firebox platform and became trapped therein when the door closed upon his leg.

In his complaint plaintiff alleged that Island reserved control over the premises, breached its duty to exercise reasonable care to provide him with premises which were reasonably safe and free from latent defects, and failed to warn him of dangerous and defective conditions on the premises. In an amended complaint, he alleged that Island breached a statutory duty created by 21 V.S.A. § 241(b) relating to the operation of boilers. The allegations against Aetna were that it failed to fully and properly inspect the area in question and to warn plaintiff of the danger. We first address plaintiff's claims against Aetna.

I.

Plaintiff contends that the trial court erred in granting Aetna's motion for summary judgment. The undisputed material facts are that Aetna issued a policy of insurance to Island prior to the date of the injury to plaintiff. The policy contained a condition relating to inspection which reads in pertinent part as follows:

The company shall be permitted but not obligated to inspect the named insured's property and operations at any time. Neither the company's right to make inspections nor the making thereof nor any report thereon shall constitute an undertaking, on behalf of or for the benefit of the named insured or others, to determine or warrant that such property or operations are safe or healthful, or are in compliance with any law, rule or regulation.

Aetna did not inspect Island's premises before the date of plaintiff's injuries.

Plaintiff maintains that Aetna may be liable under § 324A of the Restatement (Second) of Torts (1965). In Derosia v. Liberty Mutual Insurance Co., 155 Vt. 178, 583 A.2d 881 (1990), we held that an insurance carrier could be subjected to liability where it undertook to render a specific service to its insured which was necessary for the protection of a third person and its failure to exercise reasonable care in so doing resulted in (a) an increased risk of harm to the person, (b) the assumption by the actor of a duty owed to the third person, or (c) harm to the third person resulting from reliance on the understanding. Id. at 182-83, 583 A.2d at 883-84.

The fundamental problem with plaintiff's argument, however, is that Aetna did not contract or promise to inspect the premises and thus it did not undertake to assume Island's duty. It simply obtained its insured's permission to inspect the property.

Plaintiff further contends that Island relied upon Aetna to inspect the premises, and that evidence of the reliance raised an issue of material fact which should have precluded the grant of summary judgment. An examination of the testimony upon which plaintiff relies discloses that Island relied upon safety inspections by carriers other than Aetna. Accordingly, we find no error in the grant of Aetna's motion for summary judgment.

II.

Plaintiff also makes a variety of claims against Island, none of which warrant reversal. The majority of plaintiff's claims are directed at the court's instructions to the jury. Specifically, plaintiff argues that the court committed prejudicial error by instructing the jury that it must determine whether or not defendant Island, in its lease arrangement with Railroad Salvage Company, retained control over the boiler in question at the time of plaintiff's injury as a condition precedent to any liability on the part of defendant. Plaintiff also argues that the court, through its jury instructions, erroneously restricted the jury's consideration of control to the lease arrangement between Island and Railroad Salvage, that our rule relating to landlord liability should be changed, that the court erred in not granting his motion for a mistrial, and that the court erred by failing to charge the jury on his theories of breach of warranty and strict liability.

A.

The trial court instructed the jury that it must determine whether Island retained control over the boiler in question at the time plaintiff was injured and that, if it so found, Island then had the duty to keep the premises in a safe and suitable condition. It further instructed the jury that by statute a person shall not operate, cause to be operated or permit to be operated any boiler or pressure vessel under his control or ownership in a manner which causes or is likely to cause harm to other persons or property, ¹ and that a violation of this statute could be considered as evidence of negligence.

The court's instruction that the jury had to determine whether Island retained control of the premises was required by plaintiff's theories for recovery. He had alleged and offered proof that Island had reserved control over the premises "and, in particular control over said furnace." He argued to the jury that "the question for you ... is what measure of control was reserved." When the instruction was given our law was well settled that a landlord could not be subject to liability founded on negligence unless the landlord reserved control over the area where the injury occurred. Waite v. Brown, 132 Vt. 20, 25, 312 A.2d 915, 916 (1973); Cameron v. Abatiell, 127 Vt. 111, 119, 241 A.2d 310, 315-16 (1968). ² Plaintiff also sought recovery under § 241(b), which in one alternative required the jury to determine whether the boiler was under Island's control. The court submitted interrogatories to the jury, one of which required it to determine whether Island had retained control over the boiler at the time of plaintiff's injury. In its explanation of this interrogatory, it informed the jury that if it found that Island did not retain control it was to sign defendant's verdict and go no further with the case.

Plaintiff argues that he was thus deprived of jury consideration as to whether liability could be imposed under § 241(b) by virtue of defendant's ownership alone. The intent of the statute is to place the responsibility for safe operation upon the person operating the boiler, whether it be the owner or the one in control. The argument that liability could be imposed upon one who does not have the ability to avoid it leads to an unjust, unreasonable and absurd consequence; a result we are to avoid when construing a statute. Craw v. District Court, 150 Vt. 114, 119, 549 A.2d 1065, 1069 (1988). The premises here were leased to Railroad Salvage Company, and Island could no longer enter for the purpose of controlling the manner of operation. Absent a reservation for such entry it would be unlawful. Livaditis v. American Casualty Co., 117 Ga.App. 297, 301-02, 160 S.E.2d 449, 452 (1968). Even with such a reservation, an owner would be required to constantly monitor the operation of the boiler to avoid liability if plaintiff's construction of the statute were accepted.

The law of this jurisdiction has long been that a tenant having control of the premises is, so far as third persons are concerned, the owner and that such persons must seek redress from the tenant. Beaulac v. Robie, 92 Vt. 27, 32, 102 A. 88, 90 (1917). We must presume that the Legislature did not intend to overturn a long-established principle of law unless such an intention appears by express declaration or by necessary implication. Gould v. Parker, 114 Vt. 186, 190, 42 A.2d 416, 418 (1945). ³ We find no clear intent to change this law in the applicable statute.

The argument advanced by plaintiff might well lead to even more irrational consequences when applied to 21 V.S.A. § 251(b), which provides:

A person shall not maintain, keep or operate any premises or any part thereof, or cause to or permit to be maintained, kept or operated, any premises or part thereof, under his control or ownership in a manner which causes or is likely to cause harm to other persons or property in case of fire.

Under the reasoning urged by plaintiff, a lessor of a residential property might be liable under § 251(b) for the tenant's storage of flammables, obstruction of exits, failure to provide or service alarms, or any other tenant acts or omissions causing harm in case of fire, even though the lessor would not have the means to alleviate or eliminate the exposure. The Legislature could not have intended such consequences under either statute. The intent was to impose the duty upon the person with the ability to avoid the harm.

Because liability could not be imposed under § 241(b) by reason of ownership alone on the facts presented there was no error in the instructions.

B.

Plaintiff also argues that the trial court erroneously allowed a witness to testify as to the contents of a letter containing the terms of the lease arrangement between plaintiff's employer and defendant Island. No objection was made to any of this testimony and the issue is, therefore, not before us on appeal. R. Brown &...