Buxton v. Springfield Lodge No. 679, 12–398.

• Decision Date: 23 May 2014
• Docket Number: No. 12–398.,12–398.
• Citation: 99 A.3d 171,2014 VT 52
• Court: Vermont Supreme Court
• Parties: Michael R. BUXTON v. SPRINGFIELD LODGE NO. 679, LOYAL ORDER OF MOOSE, INC. and Robert Merrill, Sr.

99 A.3d 171

2014 VT 52

Michael R. BUXTON

v.SPRINGFIELD LODGE NO. 679, LOYAL ORDER OF MOOSE, INC. and Robert Merrill, Sr.

No. 12–398.

Supreme Court of Vermont.

May 23, 2014.

John J. Boylan, III and John D. Willey, Jr. of Boylan Associates, P.C., Springfield, for Plaintiff–Appellant.

Matthew D. Anderson of Pratt Vreeland Kennelly Martin & White, Ltd., Rutland, for Defendants–Appellees.

Present: REIBER, C.J., DOOLEY, SKOGLUND, ROBINSON and CRAWFORD, JJ.

Opinion

DOOLEY, J.

¶ 1. Plaintiff appeals two superior court decisions in this personal-injury negligence action: (1) an order dismissing all claims against defendant Robert Merrill, Sr., in his individual capacity, on summary judgment, and (2) an order granting partial judgment as a matter of law during trial, concluding that any liability of defendant Springfield Lodge No. 679, Loyal Order of Moose, Inc., could not be predicated on the action or inaction of Mr. Merrill, Sr., its governor. We affirm both decisions.

¶ 2. We treat each appealed decision separately, beginning with the summary judgment order. We review summary judgment decisions de novo. Doe v. Forrest, 2004 VT 37, ¶ 9, 176 Vt. 476, 853 A.2d 48. In doing so, we apply the same standard as the trial court. Id . We therefore affirm a grant of summary judgment if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” V.R.C.P. 56(a). In reviewing the facts, “we give the nonmoving party”—in this case, plaintiff—“the benefit of all reasonable doubts and inferences.” Doe, 2004 VT 37, ¶ 9, 176 Vt. 476, 853 A.2d 48.

¶ 3. At the time of the summary judgment order, the record reflected the following basic sequence of events, viewed in the

light most favorable to plaintiff. Plaintiff, a party guest, was injured during a New Year's Eve party hosted by the Springfield Lodge when a fight broke out between two other party guests. The combatants were Danny Snide and Robert Merrill, Jr., the adult son of defendant Robert Merrill, Sr. Merrill, Sr. and his spouse—Merrill, Jr.'s mother—were both present at the party. At the time, Merrill, Sr. was the governor of the Lodge, the highest position in the Lodge hierarchy. In this position, Merrill, Sr. was an unpaid volunteer.

¶ 4. Merrill, Jr. had a reputation as a “hothead” and a “fighter.” He was bickering throughout the night with Snide about arm wrestling, which is forbidden by Lodge policy. Snide's spouse claimed that Merrill, Jr. was challenging Snide to arm wrestle and that she complained about this behavior to Merrill, Sr., who did not take immediate action to stop it.

¶ 5. Eventually, there was a scuffle of some kind in the men's room involving Merrill, Jr. and an unnamed man. Merrill, Jr.'s mother broke it up. Merrill, Sr. arrived and asked another person to keep Merrill, Jr. in the bathroom while Merrill, Sr. went to look for the unnamed man. Merrill, Jr. escaped the bathroom and began fighting Snide. In the resulting commotion, plaintiff was injured.¹

¶ 6. In addition to alleging these events, plaintiff submitted selected pages from an Orientation Guide for New Officers stating that the duties of the governor of the Lodge include “Chair[ing] the House Committee.” The Orientation Guide also states that the house committee “supervises all aspects of the social quarters operation, including: ... members['] access to, and conduct within the lodge social quarters.” The Guide further says:

Other than the Governor's authority to fine, a member of the House Committee has no authority in the social quarters as an individual. In cases of misconduct committed in his presence, he should exercise authority only if the person in charge is unavailable, and he has been so authorized by the House Committee.²

¶ 7. To survive summary judgment on a claim involving Merrill, Sr.'s individual liability for negligence in this matter, plaintiff must make a prima facie showing that Merrill, Sr. owed some duty of care to plaintiff. Rubin v. Town of Poultney, 168 Vt. 624, 625, 721 A.2d 504, 506 (1998) (mem.) (“Absent a duty of care, an action for negligence fails.”). A duty is an “ ‘obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct towards another.’ ” Smith v. Day, 148 Vt. 595, 597, 538 A.2d 157, 158 (1987) (quoting W. Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 356 (5th ed.1984)). The existence of a duty “is primarily a question of law.” Endres v. Endres, 2008 VT 124, ¶ 11, 185 Vt. 63, 968 A.2d 336. The court determines whether a duty is owed, as well as the scope of any duty that is owed. 2 D. Dobbs et al., The Law of Torts § 251, at 2 (2d ed.2011).

¶ 8. This case turns on whether Merrill, Sr. owed a duty to plaintiff to take some action to prevent the fight that caused plaintiff's injury. In addressing this alleged duty, we note that in general a person does not have an affirmative duty to “protect, aid or rescue” another. Id.; Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W.2d 381, 383 (1988) (stating that “as a general rule, there is no duty that obligates one person to aid or protect another” in common-law tort). Nor, generally, is there a duty “ ‘to control the conduct of a third person as to prevent him from causing physical harm to another.’ ” Sorge v. State, 171 Vt. 171, 176, 762 A.2d 816, 819 (2000) (quoting Restatement (Second) of Torts § 315 (1965) ); accord Peck v. Counseling Serv. of Addison Cnty., Inc., 146 Vt. 61, 64–65, 499 A.2d 422, 425 (1985).

¶ 9. In essence, plaintiff is arguing that an exception to this general rule applies here such that Merrill, Sr. had a duty to plaintiff defined by his responsibilities as governor of the Lodge. We conclude that the most accurate way to evaluate plaintiff's argument is as an assertion that Merrill, Sr. voluntarily assumed the responsibilities assigned to the governor and in doing so undertook “to render services to [the Lodge] which he should recognize as necessary for the protection of a third person.”

Restatement (Second) of Torts § 324A. The third person, under this claim, is a member or social guest who is using Lodge facilities. This duty is defined by the responsibilities Merrill, Sr. assumed as governor.

¶ 10. This is a familiar argument. We have decided a number of cases under Restatement § 324A.³ See Kennery v. State, 2011 VT 121, ¶ 13, 191 Vt. 44, 38 A.3d 35 (summarizing § 324A decisions). In Kennery, we found a duty under § 324A where police officers undertook, at the request of a daughter, to check on the condition of her mother who was living alone and did not answer her daughter's phone calls. Plaintiff alleged that the officers negligently breached the duty by going to the wrong house and reporting that the mother was not home, when in reality she had fallen and was lying seriously injured outside of her home unable to get help. In one of our earlier cases, we relied in part upon a statute to define the undertaking of a duty to a third party. Sabia v. State, 164 Vt. 293, 299, 669 A.2d 1187, 1191–92 (1995) ; compare Andrew v. State, 165 Vt. 252, 260, 682 A.2d 1387, 1392 (1996) (finding no undertaking of duty in state regulatory inspection of private workplace).

¶ 11. In this case, at the summary judgment stage, plaintiff did not articulate a viable theory under which the governor of the Lodge⁴ had a duty of care towards the Lodge's New Year's Eve

party guests or a duty to control Merrill, Jr.⁵ The only description of Merrill, Sr.'s relevant responsibilities as governor in the summary judgment record is contained in the Orientation Guide, a summary of which is set out above. Supra, ¶ 6. Nothing in the language of the Guide suggests that the governor has a personal responsibility to prevent the misconduct of others on Lodge property or to warn staff about impending misconduct. Whatever duty Merrill, Sr. undertook as governor, it did not include the duty plaintiff asserted. For that reason, the trial court's summary judgment decision dismissing the claims against Merrill, Sr. is correct in its result.⁶

¶ 12. We also conclude that the court could have gone further and provided the Lodge summary judgment on the claims against it that were premised on a theory of common-law respondeat superior for the action or inaction of Merrill, Sr. The trial court ruled instead that there was “a question at trial as to whether Mr. Merrill [Sr.] should have made more of an effort to notify the bartenders or other security ..., depending on whether or not lodge officials have any responsibilities during social events when they are ‘off duty.’ ” Our ruling above with respect to Merrill, Sr.'s

duty applies to a duty to warn as well as a duty to act. Nothing in his duties as governor includes a duty to warn Lodge staff about threats of inappropriate conduct by Lodge guests.

¶ 13. The definition of respondeat superior is “[t]he doctrine holding an employer or principal liable for the employee's or agent's wrongful acts committed within the scope of the employment or agency.” Black's Law Dictionary 1338 (8th ed.2004). In other words, respondeat superior, or vicarious liability, requires the agent to commit some wrongful act—a tort or contract violation, for instance—for which the principal could also be held liable. See In re Desautels Real Estate, Inc., 142 Vt. 326, 337, 457 A.2d 1361, 1366 (1982) (“The law of vicarious liability has long been recognized in Vermont as but an outgrowth of the maxim respondeat superior. Vicarious responsibility has been defined as an indirect legal responsibility, as for example, the liability of...a principal for the torts and contracts of his agent.” (citation omitted)). Alleging respondeat superior based on tort thus requires a prima facie showing of all elements of the agent's tort, including the agent's legal duty. See Fairchild Square Co. v. Green Mountain Bagel Bakery, Inc., 163 Vt. 433, 442, 658 A.2d 31, 36 (1995) (“[C]orporate employers are not responsible for...