Leclair v. Leclair, No. 2016-139

Docket NºNo. 2016-139
Citation2017 VT 34
Case DateMay 12, 2017
CourtUnited States State Supreme Court of Vermont

2017 VT 34

Joseph L. LeClair
v.
Hector LeClair

No. 2016-139

Supreme Court of Vermont

September Term, 2016
May 12, 2017


NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@vermont.gov or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.

On Appeal from Superior Court, Chittenden Unit, Civil Division

Helen M. Toor, J.

Robert J. Kaplan of Kaplan and Kaplan, Burlington, for Plaintiff-Appellant.

Leo A. Bisson of Primmer Piper Eggleston & Cramer PC, Montpelier, for Defendant-Appellee.

PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

¶ 1. DOOLEY, J. Plaintiff Joseph LeClair appeals from the trial court's grant of summary judgment to defendant Hector LeClair, plaintiff's grandfather, in this negligence action. Plaintiff argues that the trial court erred by concluding that defendant owed him no duty and that the court abused its discretion by denying his motion to amend his complaint to add a new liability theory. We reverse and remand.

¶ 2. Defendant is experienced in construction and has developed several properties around the state. In 2011, defendant approached his son, Ricky LeClair, who also worked in construction, about replacing the roof on the building in which defendant has his office. Defendant's son, Ricky, then approached his twenty-seven-year-old son, plaintiff, about working on defendant's roofing project. Plaintiff had also worked in construction and was an experienced

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roofer, but was unemployed at the time. According to plaintiff's deposition testimony, his father told him he would make "good money" for working on defendant's roof. Plaintiff's father supplied the tools, equipment, and materials for the roof job.

¶ 3. On October 7, 2011, plaintiff arrived at the property with another person to work on the roof. They had already removed the shingles from the roof, leaving only the underlayment, which on that October morning was covered with dew and early frost. Plaintiff claims that he initially decided not to work on the roof because the frost made it slippery but changed his mind when defendant arrived at the property and ordered him to begin work. According to his complaint, plaintiff climbed a ladder onto the property's porch roof to reach the second-story roof of the house. Plaintiff fell from the second-story roof and landed on the paved driveway below, sustaining serious and permanent head and spinal injuries.

¶ 4. Plaintiff brought this action against defendant for injuries sustained in his fall. His original complaint, filed in August 2014, included a single negligence claim, in which he alleged that defendant owed a duty of reasonable care in the design, condition, and maintenance of his premises to those lawfully on his property; that the frost-covered roof presented an unreasonable risk of harm; and that defendant breached his duty of care by demanding that plaintiff work on the roof when it presented an unreasonable risk.1 Defendant's answer listed five defenses, including failure to state a claim, lack of privity between plaintiff and defendant, negligence by plaintiff that was the sole proximate cause of the injury, and conduct by plaintiff's father that was a supervening cause of the accident.

¶ 5. The parties agreed by stipulation to conclude all discovery by November 13, 2015, and to present any legal challenge to liability by motions for summary judgment to be filed on or

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before December 31, 2015. Defendant filed a motion for summary judgment on January 4, 2016. He argued that he had no duty to warn plaintiff not to go on the frosty roof because plaintiff knew the roof was not safe, that plaintiff assumed the risk of injury by knowingly going on the slippery roof, and that plaintiff's injury resulted from the nature of plaintiff's work and not the condition of the premises. In making these arguments, defendant relied primarily on the allegations in plaintiff's complaint that plaintiff saw that the roof was covered with frost when he arrived and decided to delay starting work until the frost melted, that defendant ordered him to commence work immediately even though it was dangerous to work on the roof at that time, and that plaintiff commenced work as ordered to please defendant.2

¶ 6. In his January 29, 2016 response to defendant's motion for summary judgment, plaintiff asserted that the motion attempted to characterize the arrangement to replace the roof as a traditional arms-length transaction between an otherwise uninvolved homeowner and the employee of a contractor. He contended that, instead, the evidence developed during discovery indicated that defendant was the ultimate employer on the roofing job and directed plaintiff with regard to how to perform that work. Plaintiff argued that the instant action arose from premises liability in the sense that defendant owned the property, which was also the work site, and that the property was in an unsafe condition for doing work on the roof. According to plaintiff, defendant's status as the ultimate employer on the project placed upon him a duty to provide a safe workplace for plaintiff. Plaintiff argued that he was not precluded from suing defendant because defendant's only disclosed insurance excluded workers' compensation coverage and thus defendant was not entitled to the exclusive remedy protections of workers' compensation law. Plaintiff further

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argued that defendant breached his duty as a landowner because he increased the foreseeable risk of harm by demanding that plaintiff work on the frosted roof.

¶ 7. Three days after filing his response to defendant's motion for summary judgment, plaintiff filed a motion to amend his complaint to add distinct counts entitled premises liability and negligence/safe workplace. On February 12, 2016, defendant filed an opposition to plaintiff's motion to amend, as well as a memorandum in response to plaintiff's response to defendant's motion for summary judgment. In his response, defendant directly addressed plaintiff's "employment claim," as well as the premises liability claim.

¶ 8. On March 25, 2016, the trial court granted defendant summary judgment on plaintiff's premises liability claim based on its conclusion as a matter of law that defendant did not breach any duty imposed on landowners. The court reasoned as follows:

There is no dispute that Grandson was completely aware of the dangerous condition on the roof, and went on the roof anyway. Under such circumstances, there was no duty to warn. Restatement (Second) of Torts § 343 (1965) (Possessor of land is liable for a dangerous condition only if he "should expect that [the invitee] will not discover or realize the danger"). Nor has Grandson pointed to any authority for the position he is really positing: that there is a duty not to tell someone to do something they already know is dangerous. Nor is there any duty to clear ice off a roof to protect invitees. There being no duty, there can be no negligence.

The court also denied plaintiff's motion to amend his complaint, stating that: (1) it would be unfair to require defendant to respond to an entirely new claim after he had already filed a motion for summary judgment, particularly considering that the case had been pending for eighteen months; (2) the amendment was not merely a clarification of the original complaint, but rather a completely different theory of the case based on different facts; and (3) the amendment would be futile because plaintiff had conceded that any agreement to complete the roof was between him and his father, and not him and defendant.

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¶ 9. On appeal, plaintiff first argues that the trial court erred by finding that defendant had no duty with respect to his premises liability theory. He contends that the facts alleged in the complaint and that emerged through discovery presented a jury question as to whether he breached his duty to exercise reasonable care in demanding that plaintiff get on the frost-covered roof. He acknowledges that defendant had no duty to warn plaintiff of the open and obvious condition of the roof, but asserts that, by demanding that plaintiff go onto the frost-covered roof, he breached his duty of preventing the risk of foreseeable harm to plaintiff. As for any assumption of risk on plaintiff's part,3 plaintiff argues there is a jury question as to whether plaintiff's decision to go onto the roof in the face of defendant's demand to do so was voluntarily made.

¶ 10. Given the circumstances of this case, we agree that the trial court erred in concluding, as a matter of law on summary judgment, that defendant owed no duty to plaintiff. See Burgess v. Lamoille Housing P'ship, 2016 VT 31, ¶ 17, ___ Vt. ___, 145 A.3d 217 ("In reviewing a decision granting summary judgment, this Court applies the same standard as that applied by the trial court—the decision will be upheld if, viewing the evidence most favorably to the nonmoving party, there are no genuine disputed issues of material fact and the prevailing party is entitled to judgment as a matter of law."). To support a negligence claim, a plaintiff must show that the defendant owed the plaintiff a duty that was breached, which proximately caused injury to the plaintiff. Endres v. Endres, 2008 VT 124, ¶ 11, 185 Vt. 63, 968 A.2d 336. Whether or not one party owes a duty to another is an expression of policy considerations about when people are entitled to legal protection. Id. Thus, whether a duty is owed is primarily a legal question in which the Legislature or courts "apply general categorical rules" establishing or withholding liability.

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Restatement (Third) of Torts § 7 cmt. a (2010); see Kuligoski v. Brattleboro Retreat, 2016 VT 54A, ¶ 19, ___ Vt....

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22 practice notes
  • Livings v. Sage's Inv. Grp., LLC, 159692
    • United States
    • Supreme Court of Michigan
    • June 30, 2021
    ...by Pagel v. Marcus Corp. , 313 Wis. 2d 78, 84 n. 2, 756 N.W.2d 447 (Wis. App., 2008) ; cf. LeClair v. LeClair , 204 Vt. 422, 169 A.3d 743, 2017 VT 34 (2017) (finding a triable issue when the defendant-grandfather instructed the plaintiff-grandson to replace a frosty roof because he should h......
  • Sutton v. Vt. Reg'l Ctr., No. 18-158
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 31, 2020
    ...the breach and the injury. Montague, 2019 VT 16, ¶ 14, 208 A.3d 609. Existence of a duty is primarily a legal question. LeClair v. LeClair, 2017 VT 34, ¶ 10, 204 Vt. 422, 169 A.3d 743. In determining whether a duty exists, we consider "a variety of public policy considerations and relevant ......
  • J&K Tile Co. v. Wright & Morrissey, Inc., No. 18-110
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 25, 2019
    ...of fact and conclusions of law. However, the MOU's status was a contested issue that "permeated" the proceedings. See LeClair v. LeClair, 2017 VT 34, ¶ 30, 204 Vt. 422, 169 A.3d 743 (holding that issue raised in amendment "permeated the case from the start," indicating that amendment was ap......
  • Sutton v. Vt. Reg'l Ctr., No. 2018-158
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 4, 2019
    ...link between the breach and the injury. Montague, 2019 VT 16, ¶ 14. Existence of a duty is primarily a legal question. LeClair v. LeClair, 2017 VT 34, ¶ 10, 204 Vt. 422, 169 A.3d 743. In determining whether a duty exists, we consider "a variety of public policy considerations and relevant f......
  • Request a trial to view additional results
22 cases
  • Livings v. Sage's Inv. Grp., LLC, 159692
    • United States
    • Supreme Court of Michigan
    • June 30, 2021
    ...by Pagel v. Marcus Corp. , 313 Wis. 2d 78, 84 n. 2, 756 N.W.2d 447 (Wis. App., 2008) ; cf. LeClair v. LeClair , 204 Vt. 422, 169 A.3d 743, 2017 VT 34 (2017) (finding a triable issue when the defendant-grandfather instructed the plaintiff-grandson to replace a frosty roof because he should h......
  • Sutton v. Vt. Reg'l Ctr., No. 18-158
    • United States
    • Vermont United States State Supreme Court of Vermont
    • July 31, 2020
    ...the breach and the injury. Montague, 2019 VT 16, ¶ 14, 208 A.3d 609. Existence of a duty is primarily a legal question. LeClair v. LeClair, 2017 VT 34, ¶ 10, 204 Vt. 422, 169 A.3d 743. In determining whether a duty exists, we consider "a variety of public policy considerations and relevant ......
  • J&K Tile Co. v. Wright & Morrissey, Inc., No. 18-110
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 25, 2019
    ...of fact and conclusions of law. However, the MOU's status was a contested issue that "permeated" the proceedings. See LeClair v. LeClair, 2017 VT 34, ¶ 30, 204 Vt. 422, 169 A.3d 743 (holding that issue raised in amendment "permeated the case from the start," indicating that amendment was ap......
  • Sutton v. Vt. Reg'l Ctr., No. 2018-158
    • United States
    • Vermont United States State Supreme Court of Vermont
    • October 4, 2019
    ...link between the breach and the injury. Montague, 2019 VT 16, ¶ 14. Existence of a duty is primarily a legal question. LeClair v. LeClair, 2017 VT 34, ¶ 10, 204 Vt. 422, 169 A.3d 743. In determining whether a duty exists, we consider "a variety of public policy considerations and relevant f......
  • Request a trial to view additional results

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