Gero v. JWJ REALTY, 99-045.

Decision Date16 June 2000
Docket NumberNo. 99-045.,99-045.
Citation757 A.2d 475
CourtVermont Supreme Court
PartiesRobert and Maryanne GERO v. J.W.J. REALTY, et al.

James M. Dingley, Burlington, and Michael Rose, St. Albans, for Plaintiffs-Appellants.

Stephen D. Ellis of Kiel & Ellis, Springfield, for Defendant-Appellee J.W.J. Realty.

Pietro J. Lynn and Craig S. Nolan of Dinse, Knapp & McAndrew, P.C., Burlington, for Defendant-Appellee Wiemann-Lamphere.

Present AMESTOY, C.J., DOOLEY, MORSE, JOHNSON and SKOGLUND, JJ.

AMESTOY, C.J.

Plaintiffs Robert and Maryanne Gero1 appeal a Chittenden Superior Court order granting defendants J.W.J. Realty and Wiemann-Lamphere judgment as a matter of law. Plaintiff argues that the court erred because (1) he had not completed his case and (2) the evidence he presented and proffered gave rise to a jury question as to defendants' liabilities. We affirm.

At trial, plaintiff presented the following facts. On November 11, 1992, at the construction site of a new Saturn automobile dealership, plaintiff, an employee of Mahl Construction, Inc., slipped and fell on a dirt mound ramp that provided access to Mahl's on-site trailer. Plaintiff claims that he was required to access the trailer to obtain equipment for his job. The dirt mound had uneven slopes, and no hand or guard rail was provided. Moreover, freezing temperatures on the morning of the accident had possibly aggravated the mound's dangerousness and rendered it slippery. Plaintiff allegedly fell and suffered an injury, which has caused him chronic pain ever since. He collected workers' compensation from Mahl for his injury.

Plaintiff brought a tort action in superior court against J.W.J. Realty, the owner of the construction site; Wiemann-Lamphere, an architectural firm hired by J.W.J. to coordinate the construction work; Jeffrey and William Savoie, principals of J.W.J.; and Saturn of Vermont, Inc.2 Defendants indemnified Mahl. A jury trial commenced, and for three days, plaintiff introduced evidence intended to support his allegation that the dirt mound was unsafe and that defendants J.W.J. and Wiemann-Lamphere knew about the dirt mound, should have recognized its danger, and could have rectified the danger it posed.

With two of plaintiff's witnesses yet to testify, the court engaged in a lengthy discussion with counsel regarding the relevant law and the evidence already presented. The court invited plaintiff's counsel to make an offer of proof with respect to any remaining evidence relevant to liability issues. After plaintiff's proffer, the court concluded that there was no possible way that, given plaintiff's case, it could give any instructions that would allow a reasonable jury to find liability against J.W.J. or Wiemann-Lamphere. Consequently, the court granted defendants' motions for judgment as a matter of law, and plaintiff appealed to this Court.

Judgment as a matter of law may be granted where "there is no legally sufficient evidentiary basis for a reasonable jury to find for [the nonmoving] party." V.R.C.P. 50(a)(1); Brueckner v. Norwich Univ., 169 Vt. 118, 122, 730 A.2d 1086, 1090 (1999). We review judgment as a matter of law under the same standard as the trial court: the evidence is viewed in the light most favorable to the nonmoving party, and we exclude the effects of any modifying evidence. See Brueckner, 169 Vt. at 122, 730 A.2d at 1090. "If evidence exists that may fairly and reasonably support all elements of the nonmoving party's claim, judgment as a matter of law is improper." Id. However, V.R.C.P. 50 authorizes a trial court to enter judgment as a matter of law against a party "at any time before submission of the case to the jury," V.R.C.P. 50(a)(2), if the party's claim cannot be maintained under controlling law. See V.R.C.P. 50(a)(1).

I.

Plaintiff first argues that the court erred because plaintiff's case had not been fully heard on the issue of liability. Plaintiff contends that had William Savoie, a principal of J.W.J., been allowed to testify, he would have told the jury of his frequent presence at the construction site and of the times he had required that various dirt mounds be removed. This, plaintiff argues, would have bolstered his theory that J.W.J. had possession and control of the construction site and the requisite awareness of the dirt mound's dangerousness to render J.W.J. liable. Plaintiff also claims that a physician would testify to the severity of plaintiff's injury, and to the dirt mound's dangerousness.

Plaintiff's argument is not persuasive. First, in his proffer, plaintiff made no reference to the physician. Thus, he has waived his argument with regard to this witness, since we will not consider issues not properly raised and preserved below. See Rubin v. Sterling Enters., Inc., 164 Vt. 582, 587, 674 A.2d 782, 785 (1996).

As for the unheard testimony of William Savoie, we note that plaintiff had previously deposed this witness, at which time he denied seeing the dirt mound at issue. Thus, plaintiff's contention that at trial the witness would have bolstered plaintiff's theory that J.W.J. had the requisite awareness of the dirt mound and its dangerousness was, at best, speculative. In any event, the trial court considered plaintiff's proffer that J.W.J. was involved in the decision making and had contractors move other dirt piles in determining whether the testimony would have been sufficient to support plaintiff's theory of liability against either or both defendants.

The court determined that the proffered testimony would not alter its conclusion that J.W.J. did not, as a matter of law, owe a legal duty to plaintiff. The existence of a duty is a question of law to be decided by the court. See Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 487, 622 A.2d 495, 499 (1993). Therefore, once the court found that no legal duty existed, it was correct to grant defendants' motions, because plaintiff's tort action was without a legal basis. See Reporter's Notes, V.R.C.P. 50 ("`[V.R.C.P. 50] authorizes the court to perform its duty to enter judgment as a matter of law at any time during the trial, as soon as it is apparent that either party is unable to carry a burden of proof that is essential to that party's case."') (quoting Fed.R.Civ.P. 50 Advisory Committee's Note); Baisley v. Missisquoi Cemetery Ass'n, 167 Vt. 473, 477, 708 A.2d 924, 926 (1998) ("To prove negligence, plaintiffs must show a duty of care on the part of defendants, failure to perform that duty, and injury resulting from the breach of that duty.").

II.

At issue, then, is plaintiff's second argument that the court erred in holding that defendants owed plaintiff no duty regarding the alleged dangerousness of the dirt mound ramp. Duty "is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection." W. Keeton, et al., Prosser and Keeton on Torts § 53, at 358 (5th ed.1984). Plaintiff's legal theory is based upon § 343 of the Restatement of Torts:

Dangerous Conditions Known to or Discoverable by Possessor A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.

Restatement (Second) of Torts § 343 (1965). Plaintiff argues that both the landowner, J.W.J., and its construction manager, Wiemann-Lamphere, knew about the dirt mound, should have recognized its danger, and could have rectified it, and that their failure to do so renders both liable. Plaintiff argues that J.W.J. is a "possessor of land" under § 343, and that Wiemann-Lamphere, because it acted on J.W.J.'s behalf in coordinating the project, was similarly liable under § 383 of the Restatement of Torts.3

A. J.W.J.

The essence of plaintiff's theory of liability pursuant to Restatement § 343 is that plaintiff "was injured on account of a condition on the land, a dirt mound over which J.W.J. could exercise control." Defendants, however, contend that the dirt mound was not a condition of the land, but rather a "construction means or method" created by plaintiff's employer, Mahl, to facilitate its work.4 We agree with defendants.

The trial court concluded that plaintiff could not, as a matter of law, establish that the dirt mound was "a condition on the land" under § 343. On appeal, plaintiff contends that the court erred because the mound's dirt was a "part of the land—even though the result of an artificial alteration of the land's topography." Plaintiff cites Lombardi v. Stout, 80 N.Y.2d 290, 590 N.Y.S.2d 55, 604 N.E.2d 117 (1992), to support his argument, but we agree with defendants' assessment that Lombardi supports rather than discredits the trial court's analysis. In Lombardi, the plaintiff, an employee of a general contractor, was injured when an inattentive co-worker failed to hold a rope with the result that the tree branch the plaintiff was cutting swung out and struck the ladder on which the worker was standing. The plaintiff sued the landowner, contending that his injuries had been caused by a dangerous condition on the land and not by the coworker's negligence. The New York Court of Appeals rejected this contention, stating:

It is settled law that where the alleged defect or dangerous condition arises from the contractor's methods and the owner exercises no supervisory control over the operation, no liability attaches to the owner under the common law. . . .

Id., 590 N.Y.S.2d 55, 604 N.E.2d at 119. From this, plaintiff argues that the owner would have been liable had the injury been caused by a dangerous condition of the premises over which...

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