Concord Gen. Mut. Ins. Co. v. Gritman

• Decision Date: 22 April 2016
• Docket Number: No. 15–066.,15–066.
• Citation: 146 A.3d 882,2016 VT 45
• Court: Vermont Supreme Court
• Parties: CONCORD GENERAL MUTUAL INSURANCE COMPANY and Kevin Flanagan and Linda Flanagan v. Nathan GRITMAN, Austin Lawson, Nicholas T. Sweet, Elizabeth Plude, Kevin Spear and Dylan Stinson.

146 A.3d 882

2016 VT 45

CONCORD GENERAL MUTUAL INSURANCE COMPANY and Kevin Flanagan and Linda Flanagan

v.Nathan GRITMAN, Austin Lawson, Nicholas T. Sweet, Elizabeth Plude, Kevin Spear and Dylan Stinson.

No. 15–066.

Supreme Court of Vermont.

April 22, 2016.

Motion for Reargument Denied May 19, 2016.

Renee L. Mobbs and Thomas C. Nuovo of Bauer Gravel Farnham, Colchester, for Plaintiffs–Appellees.

John J. Boylan, III, of Boylan Associates, P.C., Springfield, for Defendant–Appellant Stinson.

William H. Sorrell, Attorney General, and Benjamin D. Battles, Assistant Attorney General, Montpelier, for Amicus Curiae State of Vermont.

Present: REIBER, C.J., DOOLEY, SKOGLUND and ROBINSON, JJ., and MORSE, J. (Ret.), Specially Assigned.

ROBINSON, J.

¶ 1. Defendant Dylan Stinson appeals from a judgment finding him liable to plaintiffs Kevin and Linda Flanagan for damage to their vacation home from a fire started in an outdoor fireplace on their deck by a group of teenagers who were there without their permission. Stinson contends that: (1) there was insufficient evidence to find him liable for the damage under a concerted-action theory; (2) it was improper for the trial court to admit and rely on evidence of the actual cash value of the lost personal property; and (3) the pre- and postjudgment interest rate awarded by the trial court was unconstitutional under the U.S. and Vermont Constitutions. We affirm.

I. Sufficiency of Evidence as to Stinson's Liability

¶ 2. On appeal from a denial of a motion for judgment as a matter of law, we view all the evidence in the light most favorable to the nonmoving party, excluding modifying evidence. See Monahan v. GMAC Mortg. Corp., 2005 VT 110, ¶ 2, 179 Vt. 167, 893 A.2d 298. When a defendant challenges the sufficiency of the evidence, we determine whether the plaintiff produced enough evidence to fairly and reasonably support all elements of the disputed claims. Id.; V.R.C.P. 50(a). The evidence in this case, viewed most favorably to the plaintiffs, reveals the following.

¶ 3. On May 26, 2009, a group of teenagers gathered at a vacation house owned by the Flanagans and located near the Okemo Mountain Resort in Ludlow. Stinson knew that the Flanagans had not given the teens permission to be there, and Stinson had previously gone to the same property with a friend to smoke marijuana.

¶ 4. The gathering began around 7:00 p.m. Defendants Kevin Spear and Nicholas Sweet went to the property to smoke marijuana. Sometime after arriving, Sweet called other teenagers and invited them to join him and Spear at the property. At some point, defendant Nathan Gritman heard about the gathering and called Stinson. Stinson got a ride there from Jessica Francis, who was accompanied by defendants Elizabeth Plude and Austin Lawson. They picked Stinson up sometime after 7:40 p.m. and arrived at the property around 8:00 p.m. Gritman arrived around dusk, having walked to the property by himself. Shortly after dropping off Stinson, Francis left the property.¹

¶ 5. After Francis left, the teens mulled around in the driveway, drinking beer and chatting. Stinson was among the individuals who drank beer. As the night progressed, it became chilly. Having spotted an outdoor fireplace, or chiminea, on the Flanagans' deck, the teens decided to build a fire.

¶ 6. Several witnesses testified about the building and lighting of the fire. Gritman testified that building the fire was a group effort, but he had no idea who lit the fire. Plude testified that most of the group gathered brush and dried leaves from the surrounding wooded area, and that Stinson was there at the time. She further testified that Lawson and Sweet were “the ones” who gathered the brush to start the fire. Plude testified that the fire was started with a lighter, but could not say whose lighter it was. Plude also testified that the fire was started by Sweet and Lawson.

¶ 7. Gritman, Plude, and Lawson all testified that Stinson was present on the deck partying with the group while the fire was burning. Gritman specifically testified that the fire was burning most of the time that Stinson was there, and Plude testified that Stinson participated in the party as much as the rest of the group. In addition, several witnesses testified that at some point during the evening Stinson got on the roof of the house and threw a brick or other object down while the others were sitting in front of the burning fire. Stinson himself denied that the fire was going while he was present at the house.

¶ 8. The fire they built was substantial. Gritman testified that when he put brush into the chiminea to feed the fire, flames would erupt from the top. In addition, the teens couldn't get within two or three feet of the chiminea because it was so hot. Plude corroborated Gritman's recollection, testifying that flames were shooting out of the top of the chiminea, and the fire was too hot for the teens to sit near. Plude testified that the fire got so hot that at one point she had to pull her chair back from the chiminea.

¶ 9. Around 9:46 p.m., Stinson left the property. He did not ensure that the fire was out before leaving. Nobody added additional wood or fuel to the fire after Stinson left. At around 10:00 p.m. the remaining teens—Gritman, Lawson, Plude, and Sweet—left. Prior to leaving, Gritman poured the rest of Plude's beer through the top of the chiminea to extinguish the fire, and he threw some dirt on it. When they left, however, hot coals remained in the chiminea.

¶ 10. On May 27, 2009, at 4:09 a.m., a fire was discovered at the Flanagans' property. The fire burned the house to the ground, leaving only the cement foundation, a driveway, and a cellar hole.

¶ 11. Two experts testified for plaintiffs about the mechanism of the fire. Lieutenant Nally, a fire investigator, testified that the probable cause of the house fire was the fire in the chiminea. He based his conclusion on the facts that the chiminea was putting off a great deal of heat, as evidenced by the facts that: the teens could not sit near the fire; the burn patterns suggested that the fire began on the deck; and he had eliminated every other possible source for the fire. Lieutenant Nally was not able to determine the precise mechanism by which the fire in the chiminea spread; he explained that the fire in the chiminea could have been so hot that it ignited the decking beneath it, or it may have ignited other consumable material, such as wood or brush located nearby.

¶ 12. Fire investigator David Eliason largely corroborated Lieutenant Nally's testimony. Mr. Eliason acknowledged other possible causes of the fire, including a cigarette butt or an electrical fixture, but agreed with Lieutenant Nally that the fire originating in the chiminea was the probable source of the larger fire. He based this conclusion on the facts that: the entire deck was consumed, suggesting that the fire originated on the deck; there were no abnormalities in the gas or electrical heating systems at the home that might provide an alternate explanation; and, because the chiminea was made of cast iron, it had the capacity to retain heat for a “good while.” Like Lieutenant Nally, Mr. Eliason acknowledged multiple mechanisms by which the fire in the chiminea could have spread, including a coal falling onto the deck, or the chiminea itself becoming destabilized.

¶ 13. After the close of evidence, the court gave the following instruction regarding concerted action liability to the jury:

If you find that any of the six named defendants were negligent, and that the negligence caused Plaintiffs' harm, you must determine whether one or more of the three remaining defendants, Dylan Stinson, Kevin Spear, and/or Nicholas Sweet acted in concert with that negligent Defendant. A person acts in concert with another when he either, A, does a negligent act himself and does it with another or according to a common plan with another; or, B, knows that the other's conduct constitutes a breach of duty, and he gives substantial assistance or encouragement to the other who is acting negligently.

....

In sum, if you determine that any Defendant was negligent and that his or her negligence caused harm to Plaintiffs, and you determine that a remaining Defendant acted in concert with that negligent defendant, then you may find the remaining defendant liable on the basis of acting in concert with a negligent Defendant.

¶ 14. The special verdict form included three questions relating to Stinson's liability. In response to the first, “Was Mr. Stinson negligent and did his negligence proximately cause damage to [plaintiffs],” the jury answered no. The jury answered the second and third interrogatories in the affirmative:

Were any of the following persons negligent, and did the negligence of such person proximately cause damage to [plaintiffs]: Nathan Gritman, Austin Lawson, Nicholas Sweet, Elizabeth Plude, Kevin Spear?

Is Mr. Stinson liable on grounds that he acted in concert with the person or persons you found negligent in [the preceding question]?

Accordingly, the jury found Stinson liable. Because the jury concluded that plaintiffs had not proven that Stinson himself had engaged in a negligent act that caused the damage, Stinson's liability in this case is predicated on a “concerted-action” theory: namely, that he knew that one of the youths by the fire that night was negligent and gave substantial assistance or encouragement to him or her.

¶ 15. The trial court deferred ruling on Stinson's motions for judgment as a matter of law until after the verdict, at which time the court denied the motion. On appeal, Stinson challenges the court's denial of his motions for judgment as a matter of law, arguing that the evidence is insufficient to support a finding that he is liable.

¶ 16. We have adopted the definition of concerted action liability as stated in the Restatement (Second) of Torts § 876 (1979). See Montgomery v. Devoid, 2006 VT 127, ¶ 33, 181 Vt. 154, 915 A.2d 270. This section provides...