LaFaso v. LaFaso

• Decision Date: 04 October 1966
• Docket Number: No. 1064,1064
• Citation: 223 A.2d 814,126 Vt. 90
• Court: Vermont Supreme Court
• Parties: Kalth LaFASO, by Joseph LaFaso, his father and next friend, v. Nicholas J. LaFASO and Carolyn W. LaFaso.

Page 814

223 A.2d 814

126 Vt. 90

Kalth LaFASO, by Joseph LaFaso, his father and next friend, v. Nicholas J. LaFASO and Carolyn W. LaFaso.

No. 1064.

Supreme Court of Vermont.

Oct. 4, 1966.

Ryan, Smith & Carbine, Rutland, for plaintiff.

Loveland & Hackel, Rutland, for defendants.

Before HOLDEN, C. J., and SHANGRAW, BARNEY, SMITH and KEYSER, JJ.

SHANGRAW, Justice.

This is a civil action for the alleged negligence of the defendants. Trial was by jury, resulting in a verdict and judgment of $18,000 against the defendant Nicholas J. LaFaso. By the verdict the defendant Carolyn W. LaFaso was exonerated from liability.

During the trial the defendants each moved for a directed verdict at the close of plaintiff's case, and at the end of all the evidence. Following the verdict of $18,000, against the defendant, Nicholas J. LaFaso, this defendant moved to set aside the verdict and for judgment notwithstanding the verdict. All of the foregoing motions were denied. Judgment was entered on the verdict. Defendant, Nicholas J. LaFaso, has appealed.

The following essential facts are uncontroverted. The plaintiff, Keith LaFaso, about three and one-half years of age, lived with his parents in the upstairs apartment of a two-family house, located in the City of Rutland, Vermont. The defendants, plaintiff's grandparents, occupied the downstairs apartment.

On April 28, 1964, the grandfather, unknown to his wife, gave the plaintiff a plastic cigarette lighter. Although there was no fluid in the lighter, the flint remained in it, and with fluid the lighter functioned perfectly. Keith had seen his grandfather use a cigarette lighter on different occasions. No evidence was presented to the effect that Keith had ever seen a lighter filled with lighter fluid, or had ever indicated an interest in such fluid.

The following day, April 29, 1964, Keith was outdoors with his mother and grandmother, Carolyn W. LaFaso. Having indicated his desire to go to the bathroom, the grandmother told him that he could use the bathroom in her downstairs apartment. While inside the house, Kaith found a can of lighter fluid which had been placed on the top shelf of an open cabinet by Rachael LaFaso, daughter of the defendants, three days before the accident. This cabinet contained three drawers which could be pulled out. The fluid had been placed half way back from the front of the top shelf. This shelf was about six feet from the floor. Keith was around thirty inches tall. It can be inferred that he had climbed onto a chair, or at least in some manner reached the fluid. Keith had not been known to have climbed up the cabinet on any prior occasion. The cabinet was located in the dining room through which he passed in reaching the bathroom.

Neither the grandmother of Keith's mother had nay knowledge that Keith had been given a lighter by his grandfather.

A few minutes after entering the downstairs apartment Keith returned to the back door with the upper part of his torso aflame. After the accident the lighter was found in the shed near the back door. The lighter fluid was found on the back of the toilet. The boy sustained very severe burns.

The complaint alleges three acts of negligence on the part of the defendants: (1) giving the plaintiff an empty lighter; (2) sending the plaintiff into their home alone and unescorted; and (3) negligently placing a can of lighter fluid where it was readily available to the plaintiff.

The grandfather was not present at the time of the accident, nor had he any knowledge where the fluid was located at the time of the accident. Thus the only alleged act of negligence that could be attributed to the grandfather was his gift of the empty cigarette lighter to Keith. The propriety of the verdict in favor of the grandmother is not challenged.

The facts in this case are not controverted. The main thrust of the defendant's challenge to the verdict and judgment is to the effect that the gift of the lighter to his grandson did not constitute actionable negligence.

As stated in Humphrey v. Twin State Gas & Electric Co., 100 Vt. 414, 422, 139 A. 440, 444, 56 A.L.R. 1011.

'* * * the existence of actionable negligence depends, not upon what actually happened, but upon what reasonably might have been expected to happen. Unless it is shown that a prudent man, situated as the defendant was at the time of his alleged default, knowing what he knew or should have known, would have regarded injury to the plaintiff or to one of the class to which he belonged as likely to result from the act or omission complained of, actionable negligence is not made out.'

The foregoing principle has been later affirmed in Johnson v. Cone, et al., 112 Vt. 459, 462, 28 A.2d 384; Hannon v. Myrick, 118 Vt. 428, 432, 111 A.2d 729. The existence of actionable negligence depends, not upon what actually happened, but upon what reasonably might have been expected to happen. Johnson v. Cone, supra, 112 Vt. p. 462, 28 A.2d 384.

Actionable negligence is made out only when it appears that a prudent person, in like circumstance, would have thought that injury would be likely to result from his acts or omissions. Winter v. Unaitis, 124 Vt. 249, 253, 204 A.2d 115.

A person cannot be held responsible on the theory of negligence for an injury from an act or omission on his part unless it appears that he had knowledge or reasonably was chargeable with knowledge that the act or omission involved danger to another. 38 Am.Jur. Negligence, § 23, p. 665.

Circumstances and dangers are always to be taken into account in determining what is due care or the evidence of it. McKirryher v. Yager, 112 Vt. 336, 343, 24 A.2d 331. A person's conduct is not necessarily to be judged according to the situation as it appeared to him, but the proper test is how it would have appeared to an ordinarily prudent person so situated. State v. Graves, 119 Vt. 205, 214, 122 A.2d 840.

The particular requirements of the prudent man rule vary with the circumstances, and the law must be applied to each controversy as may be warranted by the facts. McKirryher v. Yager, supra, 112 Vt. 343, 24 A.2d 331. The determination of what is negligence requires a consideration of the consequences that a prudent man might reasonably have anticipated. Wagner v. Village of Waterbury, 109 Vt. 368, 375, 196 A. 745.

As stated in Thompson v. Green Mountain Power Corp., 120 Vt. 478, 483, 485, 144 A.2d 786, 789, 790, 'Foresight of harm lies at the foundation of negligence. * * * Foreseeable consequences may be significant in the determination of the scope of legal duty and whether a duty or care has been violated. But there is a distinction between foreseeable consequence and proximate cause.' This distinction appears in Woodcock's Admr. v. Hallock, 98 Vt. 284, at 290, 127 A. 380, 382, in the following language: 'It is well established with us that on the question of what is negligence, it is material to consider the consequences that a prudent man might reasonably have anticipated. But, when negligence is once established, that consideration is wholly immaterial, on the question of how far it imposes liability. One shown to have been negligent is liable for all the injurious consequences that flow from his negligence until diverted by the intervention of some efficient cause that makes the injury its own, or until the force set in motion by the negligent act has so far spent itself as to be too small for the law's notice.'

The child's subsequent conduct, in trying to fill the lighter with fluid, did not operate as an intervening cause to break the connection between the defendant's want of care in making the lighter available to the child if the subsequent conduct of Keith was foreseen or reasonably might have been foreseen by the defendant. In these circumstances it is the negligence of the defendant that makes it possible for the irresponsible child to do the act which resulted in his injury. As it has been tersely put: 'One who deals with children must anticlpate the ordinary behavior of children.' American Mutual Liability Ins. Co. v. Buckley & Co. (CCA 3), 117 F.2d 845; 38 Am.Jur., Negligence § 74, 90.

A motion for a directed verdict and a motion for judgment notwithstanding the verdict are the same in nature and substance and we must view the evidence in the light most favorable to the plaintiff. Welch v. Stowell, 121 Vt. 381, 383, 159 A.2d 75. In denying the defendant's motions the trial court ruled that the evidence tended to support the plaintiff's verdict. Mattison v. Smalley, 122 Vt. 113, 116, 117, 165 A.2d 343. In considering such motions, we not only view the evidence in the light most favorable to the plaintiff, but we exclude any modifying evidence. All conflicts...