Perry v. Green Mountain Mall, 02-534.

• Citation: 857 A.2d 793
• Decision Date: 30 July 2004
• Docket Number: No. 02-534.,02-534.
• Parties: Sandra PERRY v. GREEN MOUNTAIN MALL and Raymond J. Heath d/b/a Heath Construction.
• Court: Vermont Supreme Court

857 A.2d 793

Sandra PERRY v. GREEN MOUNTAIN MALL and Raymond J. Heath d/b/a Heath Construction.

No. 02-534.

Supreme Court of Vermont.

July 30, 2004.

Robin C. Curtiss, Lara J. Saffo and Edward M. Van Dorn, Jr. of Van Dorn & Curtiss, P.L.L.C., Orford, NH, for Plaintiff-Appellant.

Keith Aten of Aten Clayton & Eaton, P.L.L.C., Littleton, NH, for Defendant-Appellee Green Mountain Mall.

William D. Riley of Paul, Frank & Collins, Burlington, for Defendant-Appellee Heath.

Present: AMESTOY, C.J., DOOLEY, JOHNSON, SKOGLUND and REIBER, JJ.

¶ 1. AMESTOY, C.J.

This appeal arises from a jury verdict apportioning more than 50% of the fault for a parking lot accident to plaintiff-appellant Sandra Perry. Appellant argues (1) the trial court's dismissal of defendant-appellee Raymond Heath from the case was error because the court improperly concluded that Heath did not owe a duty of care to plaintiff-appellant pursuant to the Restatement (Second) of Torts § 324A; and (2) the error was not harmless. We agree with appellant's first argument but not her second and therefore affirm.

¶ 2. Appellant was employed by the Ames department store at Green Mountain Mall in St. Johnsbury. She was injured at the end of her workday in January of 1999, as she and a coworker were driving through the parking lot after closing the store for the night. The parking lot was icy, and appellant's car slid on the ice. The car came to a stop perpendicular to a service road in the parking lot with its front wheels in an embankment. Appellant and her coworker stepped out of the car to try to free it from the embankment. With the car running, appellant, standing between the door and the interior, attempted to shift the car into neutral from park. The transmission engaged, and the car began to move backward with nobody at its controls. Appellant attempted to run backward with the car but slipped on the ice and fell on her back. The car dragged her approximately twenty feet and eventually came to a stop with a wheel on appellant's ribs. Appellant suffered substantial physical injuries to her nose, face, and upper body.

¶ 3. Appellant brought a negligence action against Green Mountain Mall and Raymond Heath, the contractor responsible for maintaining the parking lot and roads around the Mall, seeking to recover damages for the multiple injuries she suffered. Appellant alleged that appellees' failure to maintain and properly sand the premises caused her accident.

¶ 4. During the four-day trial, appellant and appellees presented contradictory evidence regarding the safety of the parking lot. The contract between Heath and the Mall required Heath to provide "snowplowing and sanding services" for the Mall's parking lot and roads. Heath was required to go to the Mall every day, check the parking lot, and plow and sand when needed. The Mall had the overall responsibility to maintain the premises, and to contact Heath whenever the Mall personnel observed any problem with the parking lot. Appellant offered witness testimony that the Mall parking lot and roadways were improperly maintained and had icy patches. Appellant also put forth evidence that Heath had not sanded the lot for two days before the accident. Heath, on the other hand, insisted that he had inspected the lot the day of appellant's accident and had found the parking lot to be well sanded. Appellees also offered testimony from the owner of the Mall and a tenant at the Mall that the roadways and parking lot were well maintained and were in good condition on the day of the accident.

¶ 5. At the end of appellant's case, Heath moved for judgment as a matter of law, arguing that he did not owe appellant a duty of care because he was only a contractor and not the owner of the property. Appellant objected to the motion on the grounds that Heath owed her a duty under Restatement (Second) of Torts § 324A.¹ After requesting the parties to submit briefs on the issue, the judge granted Heath judgment as a matter of law, finding § 324A inapplicable to small independent contractors.

¶ 6. At the end of the trial, the jury returned a verdict allocating appellant 53% of the fault for the accident and allocating 47% of the responsibility to the Mall. Because appellant's share of fault exceeded 50%, she was barred from recovery pursuant to 12 V.S.A. § 1036. Appellant moved for a new trial alleging that the dismissal of Heath "resulted in a gross miscarriage of justice," because it was possible that the jury could have found that the combined liability of the two defendants was greater than 50%. Appellant argued again for the application of § 324A, noting that neither defendant had claimed that it should not apply. The trial court denied the motion for a new trial, finding that, even if Heath had remained a defendant, Heath's liability would be subsumed under the liability of the Mall. This appeal followed.² ¶ 7. Appellant first claims that the trial court erred in finding § 324A inapplicable and dismissing appellee Heath on that basis. We agree. A motion for judgment as a matter of law is granted only where there is no legally sufficient basis for a reasonable jury to find for the nonmoving party. Brueckner v. Norwich Univ., 169 Vt. 118, 122, 730 A.2d 1086, 1090 (1999); V.R.C.P. 50. This Court applies the same standard as the trial court. Id. Because § 324A applies to the facts of this case, a reasonable jury could have found Heath liable, and therefore Heath's dismissal was in error.

¶ 8. This Court specifically adopted § 324A in Derosia v. Liberty Mutual Insurance Co., 155 Vt. 178, 182-83, 583 A.2d 881, 883-84 (1990). That case involved a claim against a workers' compensation carrier who had provided safety investigations for the insured. The plaintiff had been injured at work when the table saw he was working with severed three of his fingers. We held that the insurer was liable because it had undertaken to provide a service — specifically investigating and monitoring the insured's workplace safety — and had neglected to require the insured to put the guard over the table saw as was directed in the manufacturer's instructions. Id. at 182-87, 583 A.2d at 883-86.

¶ 9. In finding § 324A inapplicable in this case, the trial court reasoned that it was unclear whether the section applies to independent contractors or small businesses. The court distinguished Derosia from this case because there the insurer's undertaking was "quite substantial" and the undertaking was in effect to take on the responsibility for the safety of the insured organization. The court explained that to apply § 324A to small businesses and independent contractors like defendant Heath represents a substantial policy change in terms of the responsibility of independent contractors on premises liability issues that should not occur without the express guidance of the Legislature, or this Court.

¶ 10. We have never determined whether § 324A applies only in the context of larger organizations or where there is a substantial undertaking. Nevertheless, we find no support in the Restatement to distinguish tortfeasors based on the size of their enterprise. According to the Restatement:

This Section applies to any undertaking to render services to another, where the actor's negligent conduct in the manner of performance of his undertaking, or his failure to exercise reasonable care to complete it, or to protect the third person when he discontinues it, results in physical harm to the third person or his things.

Restatement (Second) of Torts § 324A cmt. b.³ Nothing in the comments or the illustrations that accompany the section suggests such a distinction. Consistent with its language, other jurisdictions that have adopted § 324A have applied it independently of the tortfeasor's size. See Gazo v. City of Stamford, 255 Conn. 245, 765 A.2d 505, 510 (2001) (adopting § 324A(b) and applying it in slip-and-fall case against independent contractor hired to remove ice and snow from private premises); Kostidis v. General Cinema Corp. of Ind., 754 N.E.2d 563, 567-68 (Ind.Ct.App.2001) (holding that snow plow company had a duty of care under § 324A); Stevens v. Jeffrey Allen Corp., 131 Ohio App.3d 298, 722 N.E.2d 533, 538-39 (1997) (finding that § 324A could apply to landscape company, contracted to maintain the public library grounds). The trial court erred by not applying the Restatement in this case, and in dismissing defendant Heath from the case as a matter of law.

¶ 11. Appellant next asserts, as she must, that the trial court's error is "inconsistent with substantial justice" and therefore compels the grant of a new trial. See V.R.C.P. 61. The test to determine when reversal is necessary "requires examination of just how the court's ruling affected the rights of the plaintiffs, not merely procedurally, but in matters truly of substance." Ordinetz v. Springfield Family Ctr., Inc., 142 Vt. 466, 470, 457...