Gero v. JWJ REALTY, No. 99-045.

Docket NºNo. 99-045.
Citation757 A.2d 475
Case DateJune 16, 2000
CourtUnited States State Supreme Court of Vermont

757 A.2d 475

Robert and Maryanne GERO
v.
J.W.J. REALTY, et al

No. 99-045.

Supreme Court of Vermont.

June 16, 2000.


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.

757 A.2d 476
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

757 A.2d 477
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...

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28 practice notes
  • Turner v. Roman Catholic Diocese, No. 08-003.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 9, 2009
    ...48. We review the entry of judgment as a matter of law under the same standard as the trial court. Gero v. J.W.J. Realty, 171 Vt. 57, 59, 757 A.2d 475, 476 (2000). Judgment as a matter of law 987 A.2d 980 may be granted where "there is no legally sufficient evidentiary basis for a reasonabl......
  • Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101 (Vt. 10/9/2009), No. 2008-003, October Term, 2008.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 9, 2009
    ...48. We review the entry of judgment as a matter of law under the same standard as the trial court. Gero v. J.W.J. Realty, 171 Vt. 57, 59, 757 A.2d 475, 476 (2000). Judgment as a matter of law may be granted where "there is no legally sufficient evidentiary basis for a reasonable jury to fin......
  • Leclair v. Leclair, No. 16-139.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 12, 2017
    ...a property owner after falling on a dirt mound serving as an access ramp to the contractor's trailer. Gero v. J.W.J. Realty, 171 Vt. 57, 757 A.2d 475 (2000). The Court reasoned that the dirt mound was not a "condition of land," but was a means chosen by the contractor to access its trailer.......
  • Roy v. Woodstock Cmty. Trust, Inc., No. 11–265.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 17, 2014
    ...the light most favorable to the nonmoving party, excluding the effects of any modifying evidence. Gero v. J.W.J. Realty, 171 Vt. 57, 59, 757 A.2d 475, 476 (2000). When the appeal is of a denial of a motion for judgment as a matter of law, the trial court's ruling will be upheld if any evide......
  • Request a trial to view additional results
28 cases
  • Turner v. Roman Catholic Diocese, No. 08-003.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 9, 2009
    ...48. We review the entry of judgment as a matter of law under the same standard as the trial court. Gero v. J.W.J. Realty, 171 Vt. 57, 59, 757 A.2d 475, 476 (2000). Judgment as a matter of law 987 A.2d 980 may be granted where "there is no legally sufficient evidentiary basis for a reasonabl......
  • Turner v. Roman Catholic Diocese of Burlington, 2009 VT 101 (Vt. 10/9/2009), No. 2008-003, October Term, 2008.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 9, 2009
    ...48. We review the entry of judgment as a matter of law under the same standard as the trial court. Gero v. J.W.J. Realty, 171 Vt. 57, 59, 757 A.2d 475, 476 (2000). Judgment as a matter of law may be granted where "there is no legally sufficient evidentiary basis for a reasonable jury to fin......
  • Leclair v. Leclair, No. 16-139.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 12, 2017
    ...a property owner after falling on a dirt mound serving as an access ramp to the contractor's trailer. Gero v. J.W.J. Realty, 171 Vt. 57, 757 A.2d 475 (2000). The Court reasoned that the dirt mound was not a "condition of land," but was a means chosen by the contractor to access its trailer.......
  • Roy v. Woodstock Cmty. Trust, Inc., No. 11–265.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • January 17, 2014
    ...the light most favorable to the nonmoving party, excluding the effects of any modifying evidence. Gero v. J.W.J. Realty, 171 Vt. 57, 59, 757 A.2d 475, 476 (2000). When the appeal is of a denial of a motion for judgment as a matter of law, the trial court's ruling will be upheld if any evide......
  • Request a trial to view additional results

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