Grann v. Green Mountain Racing Corp.

• Decision Date: 22 July 1988
• Docket Number: No. 86-358,86-358
• Parties: Helen M. and Carl J. GRANN v. GREEN MOUNTAIN RACING CORP., Rooney Vermont Associates and Boru, Inc.
• Court: Vermont Supreme Court

Page 1202

551 A.2d 1202

150 Vt. 232

Helen M. and Carl J. GRANN v. GREEN MOUNTAIN RACING CORP., Rooney Vermont Associates and Boru, Inc.

No. 86-358.

Supreme Court of Vermont.

July 22, 1988.

Gerald A. Harley, Bennington, for plaintiffs-appellants.

Gary R. Kupferer of Carbine, Pressly & Seager, Rutland, for defendants-appellees Green Mountain Racing Corp. and Rooney Vermont Associates.

Before ALLEN, C.J., PECK, GIBSON and DOOLEY, JJ., and BARNEY, C.J. (Ret.), Specially Assigned.

GIBSON, Justice.

Plaintiffs appeal the trial court's order granting defendants' motion for a directed verdict. We reverse.

I.

On review of a trial court's grant of a motion for directed verdict, V.R.C.P. 50, "we must view the evidence in the light most favorable to the nonmoving party, excluding any modifying evidence," and "[i]f there was any evidence fairly and reasonably supporting" the nonmoving party's claim, then the grant of a directed verdict was improper. Senesac v. Associates in Obstetrics & Gynecology, 141 Vt. 310, 312, 449 A.2d 900, 902 (1982). The instant case fails to satisfy this exacting standard. The relevant facts, viewed in the light most favorable to plaintiffs, are as follows.

Plaintiff Helen Grann was injured when she slipped and fell on something wet at defendants' racetrack in an area where it was unclear whether the racetrack owners or the concessionaire exercised control. Plaintiffs sued defendants racetrack owners in negligence for her injuries, alleging in part that defendants "owned and/or operated a dog racing track in the Town of Pownal," Vermont. Defendants admitted this allegation in their answer to plaintiffs' complaint. Subsequently, plaintiffs amended their complaint to include the concessionaire as an additional defendant.

At trial, plaintiffs' evidence included testimony by plaintiff Helen Grann as to how the accident occurred; her doctor's testimony as to her injuries; a deposition of another doctor; and a deposition of plaintiff Carl Grann, who had died prior to trial. At the close of plaintiffs' evidence, defendants moved for a directed verdict on the basis that no evidence had been submitted "as to who owned or controlled the premises" where the accident occurred, and that there was a lack of proof of proximate cause. The trial court denied the motion, but stated that "the argument for the Motion is very strong ...."

Defendants then proceeded with their case, in which they offered testimony from several racetrack employees. At the close of all the evidence, defendants again moved for a directed verdict on the same grounds as before. At that time, plaintiffs dismissed their claim against the concessionaire, defendant Boru, Inc. The trial court then granted defendants' motion, stating that plaintiffs had "failed to prove all the elements of the case" by failing "to prove what the relationship of the parties was to the ownership or control of the area where the plaintiff fell [in order] to establish and determine which of the defendants, if any, could be found guilty of negligence."

II.

In cases of this nature, unless the area where the accident occurs is under the control of the defendant at the time of the accident, a plaintiff cannot make out a cause of action in negligence against the defendant, because there is no proof that the defendant owes the plaintiff any duty of care. See Waite v. Brown, 132 Vt. 20, 25, 312 A.2d 915, 916 (1973); see also Crosby v. Great Atlantic & Pacific Tea Co., 143 Vt. 537, 538, 468 A.2d 567, 568 (1983) ("Absence of ownership or control is a defense in a negligence case...."). This Court has previously upheld a directed verdict in a negligence cause of action for a lack of evidence of control over the area where the injury occurred. See ...