Hoar v. Sherburne Corporation

• Decision Date: 21 May 1971
• Docket Number: Civ. A. No. 5679.
• Citation: 327 F. Supp. 570
• Court: U.S. District Court — District of Vermont
• Parties: Rita M. HOAR and Francis J. Hoar v. The SHERBURNE CORPORATION.

327 F. Supp. 570

Rita M. HOAR and Francis J. Hoar v. The SHERBURNE CORPORATION.

Civ. A. No. 5679.

United States District Court, D. Vermont.

May 21, 1971.

Kinney & Carbine, Rutland, Vt., for plaintiffs.

Wick, Dinse & Allen, Burlington, Vt., for defendant.

OPINION and ORDER

OAKES, District Judge.

This case, and the defendant's motion for judgment n. o. v., raise in almost pristine form, on relatively simple facts, highly complex questions going to the bases underlying the doctrines, so-called, of "contributory negligence" and "assumption of risk."

It is well to state first the facts, in the light most favorable to the plaintiff, to which light her jury verdict entitles her. Plaintiff Rita M. Hoar, a sometime skier, came to Killington Mountain, Vermont, to watch her children ski in a race sponsored by the defendant, The Sherburne Corporation, which owns (and leases) for its ski lifts portions of the mountain. The defendant also leases land on both sides of the state-owned "access road" to the ski lift area. Defendant's "Ramshead Lodge" is directly across the access road from its "Snowshed," a building which houses a ski shop. Plaintiff and her husband had paid a small fee to enter the children in the race, which was run by the defendant both as a public service and to promote skiing generally and the Killington area particularly.

Plaintiff and her husband went to the Ramshead Lodge where Mr. Hoar obtained racing bibs for the children. Mr. and Mrs. Hoar then crossed the access road on foot following a well-defined, well-used and the only nearby, convenient pathway (which leads across the road) over to Snowshed. The purpose of the trip across was to find the plaintiff some "warm-up" pants, but defendant's ski shop had none that she liked or at least wanted to buy. On the way to Snowshed it started to "spit snow." Plaintiff noticed that the path across the road was very icy and had not been sanded, but she did not fall crossing the first time. She spent about fifteen minutes at Snowshed and, returning toward Ramshead, looking where she was going and observing the ice in her path, slipped and fell. The Hoars had been returning to Ramshead to watch their children ski and possibly, to buy lift tickets for themselves.

Taking the evidence in the light most favorable to the plaintiff, the jury found that she was a business visitor, carefully proceeding across an unsafe path which, if not owned by the defendant, was subject to the defendant's control.¹ We say "carefully proceeding" for there is no evidence to suggest that plaintiff was wearing improper footwear (she was wearing ski boots in a ski area), looking absentmindedly away, or doing anything other than walking normally.

Defendant had the duty to keep the premises over which it had control "in a safe and suitable condition." Forcier v. Grand Union Stores, 264 A.2d 796, 799 (Vt.1970) (slip on the proverbial banana peel); see Wakefield v. Levin, 118 Vt. 392, 397, 110 A.2d 712 (1954). An "invitation" such as defendant issued to plaintiff here "carries with it some measure of assurance of safety, which defendant must make good, by the exercise of active care if necessary." Forcier v. Grand Union Stores, supra, 264 A.2d at 799; Wool v. Larner, 112 Vt. 431, 436, 26 A.2d 89 (1942). In other words, a person such as the defendant here, having control of land, has the "duty to have taken reasonable steps to obviate the danger * * *." Forcier v. Grand Union Stores, supra, 264 A.2d at 799, as by sanding the pathway. With plaintiff's fall occurring after nine o'clock in the morning the jury could well have found that the defendant had ample time within which to have taken those reasonable steps; and any claim of lack of knowledge of the condition of the pathway on the part of the defendant does not serve it as a defense, because "voluntary ignorance may constitute negligence if the detection of danger can be accomplished by reasonable vigilance." Forcier v. Grand Union Stores, supra 264 A.2d at 800; Thompson v. Green Mountain Power Co., 120 Vt. 478, 483, 144 A.2d 786 (1958).

Nor is the fact that plaintiff might have crossed the access road some considerable distance down the road significant since there was no showing that any such a crossing would have been safer. Cf. Smith v. Monmaney, 127 Vt. 585, 591, 255 A.2d 674 (1969); Baldwin v. Vermont Railways, 126 Vt. 70, 76, 223 A.2d 556 (1966).²

Both contributory negligence and assumption of risk were submitted to the jury under appropriate instructions, the correctness of which is not in issue here. What is involved is whether plaintiff is barred from recovery as a matter of law on either theory or both.

The rubrics incanted by the courts when they discuss the "doctrines" of contributory negligence and assumption of the risk are familiar to us all. As to a "gratuitous licensee" or social guest, of whose presence the landowner is unaware, the only duty imposed on the owner is "not to do any willful or wanton act to injure the guest." Lomberg v. Renner, 121 Vt. 311, 315, 157 A.2d 222, 225 (1959); see Garafano v. Neshobe Beach Club, 126 Vt. 566, 569, 238 A.2d 70 (1967).

But as the Supreme Court of Vermont has pointed out, "the course of judicial decisions has been toward broadening the class of invitees or business guests," Cameron v. Abatiell, 127 Vt. 111, 115, 241 A.2d 310, 313 (1968), and as to business visitors or invitees a landowner has the duty

to use reasonable care to keep its premises in a safe and suitable condition so that the business visitor would not be unnecessarily or unreasonably exposed to danger, and if a hidden danger existed, known to the landowner, but unknown and not reasonably apparent to the business visitor, to give warning of it to the latter, who has a right to assume that the premises, aside from obvious dangers, were reasonably safe for the purpose for which he was upon them, and that proper precaution had been taken to make them so.

Morgan v. Renehan-Akers Co., Inc., 126 Vt. 494, 496, 236 A.2d 645, 647 (1967); Johnstone v. Bushnell, 118 Vt. 162, 165, 102 A.2d 334 (1954).

As to the conduct of the visitor to premises, the rubric runs, "where the defect or danger is patent or obvious it is contributory negligence to fail to exercise ordinary care to avoid it." Wall v. A. N. Derringer, Inc., 119 Vt. 36, 38, 117 A.2d 390, 391 (1955), quoted in Lattrell v. Swain & Swain, 127 Vt. 33, 40, 239 A.2d 195 (1968); cf. Dooley v. Economy Store, Inc., 109 Vt. 138, 141, 194 A. 375 (1937) (which, however, holds the store owner not negligent and doesn't mention contributory negligence).

The doctrine of assumption of risk, we are told,

has no application unless there is knowledge of the existence of the risk, together with an appreciation of the extent of the danger. One cannot assume a risk unless one knows about it, appreciates it, and consents to assume it.

Killary v. Chamber of Commerce, 123 Vt. 256, 262, 186 A.2d 170, 174 (1962), quoted in Berry v. Whitney, 125 Vt. 383, 387, 217 A.2d 41 (1966).

Put another way, if the business visitor

voluntarily, that is, by the exercise of free will and intelligent choice, put himself in the way of the danger which he knew and comprehended, or was so obvious that he must be taken to have known and comprehended it,

he may be found by the jury to have assumed the risk, Lattrell v. Swain & Swain, 127 Vt. 33, 40, 239 A.2d 195, 200 (1968).

It is the application of these phrases or doctrines, as one may choose to call them, that presents problems. There are plainly times when an obvious distinction is made and the Vermont Supreme Court has spoken of contributory negligence, distinguished it from assumption of the risk and said there is a jury question as to the former and not as to the latter.

Thus, in Cameron v. Abatiell, 127 Vt. 111, 241 A.2d 310 (1968), the court held that contributory negligence of a police officer, injured in a night-time fall when a step broke on a business building staircase which the officer was checking, was a question for the jury; but that as a matter of law he had not "assumed the risk" even though he knew the steps were wobbly and had not used a flashlight or the handrail.

On the other hand there are times when the doctrines of "contributory negligence" and "assumption of risk" are applied almost interchangeably. Thus, in Wall v. A. N. Derringer, Inc., 119 Vt. 36, 117 A.2d 390 (1955), a case decided when Vermont plaintiffs still had the burden of proving freedom from contributory negligence, the court held that a plaintiff had not met the burden as a matter of law when she looked straight and failed to notice a step that she had previously seen on entering defendant's place of business, the court saying:

Even though the plaintiff had the right to assume that the premises, aside from obvious dangers, were reasonably safe for the purpose for which they were adapted, Cole v. North Danville Coop. Creamery Ass'n, 103 Vt. 32, 40, 151 A. 568, the owner of the premises is not liable to one who goes thereon as an invitee for injuries resulting from a danger that was obvious to the latter or should have been observed in the exercise of ordinary care. Dooley v. Economy Stores, Inc., 109 Vt. 138, 141, 194 A. 375.

Where the defect or danger is patent or obvious it is contributory negligence to fail to exercise ordinary care to avoid it. 119 Vt. at 38, 117 A.2d at 391.

On the other hand, Berry v. Whitney, 125 Vt. 383, 217 A.2d 41 (1966), decided when, as now, the defendant has the burden of proof of assumption of risk, held that a tenant who slipped on a common stairway had not as a matter of law "assumed the risk" of porch steps made slippery by the combination of rain and fresh paint, the court quoting Killary v. Chamber of Commerce, 123 Vt. 256, 262, 186 A.2d 170, 174 (1962), in saying:

"The assumption of risk doctrine has no application unless there is knowledge of the existence of the risk, together with an appreciation of the extent of

...