Demag v. Better Power Equip., Inc., No. 13–120.

Docket NºNo. 13–120.
Citation2014 VT 78, 102 A.3d 1101
Case DateJuly 18, 2014
CourtUnited States State Supreme Court of Vermont

102 A.3d 1101
2014 VT 78

Rodney W. DEMAG
v.
BETTER POWER EQUIPMENT, INC.

No. 13–120.

Supreme Court of Vermont.

July 18, 2014.


102 A.3d 1103

R. Jeffrey Behm, Jon T. Alexander and Eric S. Miller of Sheehey Furlong & Behm P.C., Burlington, for Plaintiff–Appellant.

Robin Ober Cooley of Pierson Wadhams Quinn Yates & Coffrin, LLP, Burlington, for Defendant–Appellee.

102 A.3d 1104

Present: REIBER, C.J., DOOLEY, SKOGLUND and ROBINSON, JJ., and EATON, Supr. J., Specially Assigned.

Opinion

DOOLEY, J.

¶ 1. Plaintiff Rodney Demag appeals a summary judgment decision of the superior court against him in this personal injury case. Consistent with our current negligence law, the trial court found that plaintiff was a licensee of defendant, Better Power Equipment, Inc. (BPE), rather than an invitee. It then concluded that plaintiff was entitled to a lesser standard of care from BPE, which allowed for summary judgment against him. We determine that the time has come to abolish Vermont's common-law negligence distinction between licensees and invitees and reverse and remand.

¶ 2. As found by the trial court, the undisputed facts are as follows. Plaintiff worked for a car dealership which also provided automobile service. As a convenience for customers, he picked up vehicles belonging to customers, leaving his own vehicle and returning the customer's vehicle at the end of the day. Plaintiff provided this service to BPE's general manager and his wife,

picking up their cars from BPE's parking lot. This occurred five to six times a year. The arrangement had existed for approximately ten years.

¶ 3. In January 2009, plaintiff drove to BPE for the scheduled service, parking in his usual spot next to the vehicle of the general manager and his wife. Although this area was not generally used for parking by BPE customers, the general manager and his wife typically parked there, and other employees sometimes parked there in the winter. Plaintiff spoke briefly with the general manager about the service needed for his vehicle. Plaintiff then returned to his own vehicle, retrieved a few items, took a step and fell into an uncovered storm drain. He filed this case to recover damages for the injuries he suffered as a result of that fall.

¶ 4. Under the terms of its lease, BPE is responsible for maintaining all buildings and surface areas of the premises. The parties agree that BPE and its employees were not aware that the storm drain was uncovered until plaintiff fell into it. Recent snowfall had obscured the drain so that its opening was not obvious, although a BPE employee had plowed the area around the drain the day before plaintiff's fall. The general manager, who had worked for BPE for twenty-five years, stated in a deposition that the storm drain cover had never come off before. However, he

had noticed that the cover rocked in place when he drove over it, and that there was some minor deterioration in the raised concrete ring around the storm drain cover.... In his opinion, the cover had heaved and tilted above its proper position due to frost, and the snowplow blade caught it and dislodged it.

The storm drain cover was found buried in the snow bank three or four feet past the storm drain.

¶ 5. The president and sole shareholder of BPE knew that the general manager and his wife often parked near the storm drain and knew of their arrangement with plaintiff to pick up and service their vehicles. The president and plaintiff had exchanged friendly conversation over the years. In the last two years, plaintiff and the president had seriously discussed the possibility of plaintiff purchasing a tractor and generator from BPE. Although he did not discuss it with anyone at BPE that day,

plaintiff claims he was still actively considering this purchase on the day of his injury.

102 A.3d 1105

¶ 6. “Common law negligence has four elements: a legal duty owed by defendant to plaintiff, a breach of that duty, actual injury to the plaintiff, and a causal link between the breach and the injury.” Zukatis v. Perry, 165 Vt. 298, 301, 682 A.2d 964, 966 (1996). As the trial court correctly found here, plaintiff's negligence claim against BPE hinges initially on the nature of the duty BPE owed him. 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.

¶ 7. The trial court correctly noted that under our traditional common-law approach to landowner liability, the landowner's duty to an entrant on his or her land depends on whether the entrant is an invitee, a licensee, or a trespasser. The trial court found that plaintiff was a licensee at the time of his injury. Based on that determination, the trial court granted summary judgment to BPE and, citing to the Restatement (Second) of Torts § 342 cmt. c (1965), determined that a landowner did not owe a duty of ordinary care to a licensee and, as a result, had no duty to “inspect the land to discover possible or even probable dangers.”

¶ 8. Plaintiff contends that the trial court should have found that he was an invitee rather than a licensee, and that BPE therefore owed him a duty of reasonable care. Under such a duty, he argues that there was sufficient evidence of BPE's negligence for the case to reach the jury.1 In the alternative, plaintiff argues that this Court should hold that all lawful visitors to business premises should be entitled to a duty of reasonable care.

¶ 9. We review summary judgment rulings de novo, using the same standard as the trial court. Farnham v. Inland Sea Resort Props., Inc., 2003 VT 23, ¶ 6, 175 Vt. 500, 824 A.2d 554 (mem.). “Summary judgment is appropriate only where, accepting the allegations of the nonmoving party as true, there exist no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Id.; V.R.C.P. 56(a).

¶ 10. We have long maintained the traditional, common-law approach to landowner liability, holding landowners to different duties of care depending on whether a land entrant is an invitee,

licensee, or trespasser. Farnham, 2003 VT 23, ¶ 9, 175 Vt. 500, 824 A.2d 554 ; Cameron v. Abatiell, 127 Vt. 111, 114, 241 A.2d 310, 312 (1968) (“The judicial approach to the problem of balancing interests of the occupier against the interests of a person coming on the premises was formulated during the course of the nineteenth century and still provides the point of departure for modern reasoning.”); Bottum's Adm'r v. Hawks, 84 Vt. 370, 373–74, 384–85, 79 A. 858, 860, 864 (1911). In this decision, we do not address the duty owed by a landowner to a trespasser; we focus only on the distinctions we have drawn between licensees and invitees.

¶ 11. An invitee is one who “enters the land for the purpose of business dealings with the landowner.” Menard v. Lavoie, 174 Vt. 479, 480, 806 A.2d 1004, 1006 (2002) (mem.); Ball v. Melsur Corp., 161 Vt. 35, 43, 633 A.2d 705, 711 (1993). The landowner owes a duty of reasonable care to an invitee, such that the invitee “is not unnecessarily or unreasonably exposed to danger.” Ball, 161 Vt. at 43, 633 A.2d at 711 (quotation omitted).

¶ 12. A licensee is one who merely “enters or remains on land with the consent of the landowner.”

102 A.3d 1106

Menard, 174 Vt. at 480, 806 A.2d at 1006 ; Restatement (Second) of Torts § 330. Licensees typically include social guests, as well as anyone else with a landowner's permission to enter land “ ‘other than a business visitor.’ ” Manley v. Haus, 113 Vt. 217, 220, 32 A.2d 668, 671 (1943) (quoting Wool v. Larner, 112 Vt. 431, 435, 26 A.2d 89, 92 (1942) ). A licensee is entitled to a duty of care only to prevent “active or affirmative negligence by the landlord.” Menard, 174 Vt. at 480, 806 A.2d at 1006. More fully stated, with respect to a licensee, a landowner is “not bound to keep the premises safe for her, or to warn her of their dangerous condition, [but] ... owe[s] her the duty of active care to protect her from injuries from force negligently brought to bear upon her.” Watterlund v. Billings, 112 Vt. 256, 260, 23 A.2d 540, 542 (1942).

¶ 13. Although we have continued to uphold the traditional common-law approach to premises liability, we long ago recognized that the distinction between invitees and licensees does not perfectly reflect social values. We noted in Cameron that “[t]he history of the law on the subject of landowners and licensees shows a tendency to whittle away a rule which no longer conforms to public opinion. The course of judicial decisions has been toward broadening the class of invitees or business guests.”

127 Vt. at 115, 241 A.2d at 313. In a number of cases, the appellant has urged us to abandon the traditional categories, but we have avoided confronting the question directly. See Menard, 174 Vt. at 480, 806 A.2d at 1006 (declining to reach whether the higher standard of care applied, as that standard had been met); Baisley v. Missisquoi Cemetery Ass'n, 167 Vt. 473, 477, 708 A.2d 924, 926 (1998) (“Because of the unique facts of this case, ... we need not address the vitality of our landowner-liability rules.”); Zukatis, 165 Vt. at...

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48 practice notes
  • Gordon v. New England Cent. R.R., Case No. 2:17-cv-00154
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • October 10, 2019
    ...of that duty, actual injury to the plaintiff, and a causal link between the breach and the injury." Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 6, 197 Vt.Page 21 176, 179, 102 A.3d 1101, 1105 (quoting Zukatis v. Perry, 682 A.2d 964, 966 (Vt. 1996)). "Duty is . . . primarily a question......
  • Nelson v. Town of St. Johnsbury Selectboard, No. 13–386.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 16, 2015
    ...¶ 8. “We review summary judgment decisions de novo, using the same standard as the trial court.” Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 9, 197 Vt. ––––, 102 A.3d 1101. Summary 115 A.3d 427judgment will be granted when, viewing the evidence in the light most favorable to the nonmo......
  • Schuler v. Rainforest Alliance, Inc., Docket No.: 2:14-cv-226
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • February 11, 2016
    ...of that duty, actual injury to the plaintiff, and a causal link between the breach and the injury.” Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 6, 197 Vt. 176, 179, 102 A.3d 1101, 1105 (quoting Zukatis v. Perry, 165 Vt. 298, 682 A.2d 964, 966 (1996) ) (internal quotation marks omitted......
  • Deveneau v. Wielt, No. 14–330.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 4, 2016
    ...appeals. ¶ 7. “We review summary judgment rulings de novo, using the same standard as the trial court.” Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 9, 197 Vt. 176, 102 A.3d 1101. “Summary judgment should be granted when, taking all the allegations made by the nonmoving party as true, ......
  • Request a trial to view additional results
48 cases
  • Gordon v. New England Cent. R.R., Case No. 2:17-cv-00154
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • October 10, 2019
    ...of that duty, actual injury to the plaintiff, and a causal link between the breach and the injury." Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 6, 197 Vt.Page 21 176, 179, 102 A.3d 1101, 1105 (quoting Zukatis v. Perry, 682 A.2d 964, 966 (Vt. 1996)). "Duty is . . . primarily a question......
  • Nelson v. Town of St. Johnsbury Selectboard, No. 13–386.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 16, 2015
    ...¶ 8. “We review summary judgment decisions de novo, using the same standard as the trial court.” Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 9, 197 Vt. ––––, 102 A.3d 1101. Summary 115 A.3d 427judgment will be granted when, viewing the evidence in the light most favorable to the nonmo......
  • Schuler v. Rainforest Alliance, Inc., Docket No.: 2:14-cv-226
    • United States
    • United States District Courts. 2nd Circuit. District of Vermont
    • February 11, 2016
    ...of that duty, actual injury to the plaintiff, and a causal link between the breach and the injury.” Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 6, 197 Vt. 176, 179, 102 A.3d 1101, 1105 (quoting Zukatis v. Perry, 165 Vt. 298, 682 A.2d 964, 966 (1996) ) (internal quotation marks omitted......
  • Deveneau v. Wielt, No. 14–330.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • March 4, 2016
    ...appeals. ¶ 7. “We review summary judgment rulings de novo, using the same standard as the trial court.” Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 9, 197 Vt. 176, 102 A.3d 1101. “Summary judgment should be granted when, taking all the allegations made by the nonmoving party as true, ......
  • Request a trial to view additional results

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