Poplaski v. Lamphere

• Decision Date: 04 August 1989
• Docket Number: No. 87-479,87-479
• Citation: 152 Vt. 251,565 A.2d 1326
• Court: Vermont Supreme Court
• Parties: Anna POPLASKI, Individually and as Administratrix of the Estate of Stanley J. Poplaski, Jr. v. Mark K. LAMPHERE, Mary P. Chesley, Administratrix of the Estate of George W. Chesley, International Business Machines Corp., Michael Lamphere, and Andrea Lamphere.

Page 1326

565 A.2d 1326

152 Vt. 251

Anna POPLASKI, Individually and as Administratrix of the Estate of Stanley J. Poplaski, Jr. v. Mark K. LAMPHERE, Mary P. Chesley, Administratrix of the Estate of George W. Chesley, International Business Machines Corp., Michael Lamphere, and Andrea Lamphere.

No. 87-479.

Supreme Court of Vermont.

Aug. 4, 1989.

John H. Bloomer of Bloomer & Bloomer, P.C., Rutland, for plaintiff-appellant.

John D. Monahan, Jr. and Robert L. Sand of Dinse, Erdmann & Clapp, Burlington, for defendant-appellee.

Before PECK, GIBSON and DOOLEY, JJ., SPRINGER, District Judge (Ret.), and CONNARN, District Judge (Ret.), Specially Assigned.

GIBSON, Justice.

Plaintiff appeals the trial court's granting of summary judgment in favor of defendant International Business Machines Corporation (IBM). We affirm.

The facts stated by the trial court in its opinion are not in controversy. On the morning of March 25, 1984, plaintiff's husband was the passenger in a car being driven by George W. Chesley, whose estate is a named defendant. While driving down Route 2A in the town of St. George, their car was struck by an automobile driven by defendant Mark Lamphere. Both Poplaski and Chesley died as a result of injuries sustained in the collision.

On the evening before the accident, defendant Lamphere attended a party hosted by his brother and sister-in-law, defendants Michael and Andrea Lamphere. During the course of the evening and into Sunday morning, March 25th, he drank by his own admission approximately twelve beers. He left the party at 4:00 in the morning and returned home. About two hours later Lamphere left his house and drove to the IBM plant, where he was employed as a test-equipment maintenance technician, in order to work an overtime shift scheduled for 6:00 a.m. to 12:00 noon.

When he got to work at 6:30 a.m., Lamphere did not report to a supervisor; he stated in his deposition that he was not required to do so. Instead, he spoke with one or two co-workers and checked a computer printout to see if any test equipment needed maintenance. None did. About two hours later, there still being no equipment in need of work, Lamphere decided to go home because he was not feeling well. He did not seek permission to do so from supervisory personnel; instead, he told one of his co-workers that he wanted to leave. The co-worker assured Lamphere that he could cover the remainder of the shift. The accident between Lamphere, who was driving his own car, and the car driven by Chesley occurred while Lamphere was on his way home.

Plaintiff sued Lamphere, Chesley's estate, the hosts of the party at which Lamphere became intoxicated (Michael and Andrea Lamphere), and IBM, Lamphere's employer. The cause of action against IBM was premised on three theories of negligence:

(1) IBM "negligently directed or negligently allowed" Lamphere to leave the plant when it knew or should have known of his intoxicated state;

(2) IBM negligently exercised control over Lamphere; and

(3) IBM negligently entrusted Lamphere with the operation of an automobile when it knew or should have known of his intoxication.

IBM moved for summary judgment, asserting that there was no genuine issue as to any material fact and that, as a matter of law, none of the evidence produced by plaintiff supported the existence of negligence on IBM's part. V. R.C.P. 56(c). The trial court granted the motion, and plaintiff appeals.

The primary issue on appeal, as framed by plaintiff, is whether an employer can be held responsible in a negligence action where its employee has been allowed to leave the workplace in an intoxicated state. As a side issue, plaintiff contends that she was precluded from obtaining full discovery in the form of depositions prior to the trial court's decision on the motion for summary judgment. We will address the latter issue first.

I.

Plaintiff contends that the grant of summary judgment was erroneous as a matter of law because she had raised issues of fact in her pleadings and deposition of defendant Mark Lamphere, portions of which were submitted to the trial court in response to IBM's motion. In addition, plaintiff argues that she was not allowed to complete discovery before the court ruled on that motion, so that it did not consider the depositions of other IBM employees in making its decision. Those depositions, she claims, also raise issues of fact which should have precluded summary judgment.

The complaint in this case was filed on March 24, 1986. IBM's motion for summary judgment was not filed until November of that year, more than seven months later, and well after discovery had been embarked upon by the various defendants. A pretrial conference was held in late November, at which time a discovery schedule was adopted by all attorneys and incorporated into a pretrial order. That agreement provided that all depositions were to be completed by August 1, 1987 and that IBM's motion for summary judgment would be set for hearing after that date. On December 8, 1986, the court notified the parties that the summary judgment hearing was scheduled for August 4, 1987.

Despite this pretrial order, plaintiff deposed only defendant Mark Lamphere before the August 1, 1987 cutoff date. On August 3, 1987 she deposed several other IBM employees. It appears that transcripts of those depositions were not before the trial court when it decided the motion (although counsel for IBM represented at oral argument that the trial court was aware of the depositions and their content before its decision was rendered). On July 31, 1987, however, four days before the hearing was scheduled, plaintiff moved for a continuance so that she could have an opportunity to complete her depositions. The trial court denied the motion, concluding that "plaintiffs had ample time to develop their side of the case since IBM filed its motion" in late 1986.

Summary judgment is mandated under the plain language of V.R.C.P. 56(c) where, after an adequate time for discovery, a party "fails to make a showing sufficient to establish the existence of an element" essential to his case and on which he has the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (construing Fed.R.Civ.P. 56(c)). ^* The issue here, then, is whether plaintiff had adequate time for discovery before the trial court ruled on IBM's motion for summary judgment.

V.R.C.P. 26(b)(1) specifically permits the superior court to limit discovery if "the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought." As with other decisions involving the trial court's discretion, we will not disturb its ruling unless it is shown that such discretion was abused or entirely withheld. See, e.g., Castle v. Sherburne Corp., 141 Vt. 157, 164, 446 A.2d 350, 353 (1982) (discovery rulings are necessarily entrusted to trial court's broad discretion).

Here, plaintiff had sixteen months between the filing of the complaint and the summary judgment hearing in which to conduct the necessary depositions. She also had more than eight months from the time her attorneys voluntarily adopted a discovery schedule which required a conclusion to depositions by August 1, 1987. See V.R.C.P. 26(f) (court is authorized to conduct discovery conference in order to establish plan and schedule for discovery, as well as to set limitations on it); see also In re Estate of Collette, 122 Vt. 231, 232, 167 A.2d 361, 362 (1961) (pretrial proceedings are a part of trial procedure, and subsequent course of action is controlled by agreements or admissions made at pretrial conference). Regardless, she failed to take what she now deems to be necessary depositions until after the stipulated time had passed. Given these circumstances, and the fact that plaintiff has not identified anything in the deposition transcripts that would have changed the trial court's reasoning, we see no abuse of discretion in the trial court's decision to deny her motion for a continuance.

II.

The first two theories asserted by plaintiff as a basis for recovery allege that IBM was negligent either in directing or allowing Lamphere to leave its plant, or in failing to exercise control over him (presumably by keeping him on the premises). As these theories are both predicated on the existence of a duty on IBM's part to control its employee in a reasonable manner, we will address them together.

In order to recover in a negligence action, a plaintiff must first establish the existence of a legally cognizable duty on the part of the defendant. Smith v. Day, 148 Vt. 595, 597, 538 A.2d 157, 158 (1987); Behn v. Northeast Appraisal Co., 145 Vt. 101, 106, 483 A.2d 604, 607 (1984) ("[a]bsent a duty of care, an action for negligence must fail"). Generally, there is no duty to control the conduct of another in order to protect a third person from harm. Peck v. Counseling Service of Addison County, Inc., 146 Vt. 61, 64, 499 A.2d 422, 425 (1985); Restatement (Second) of Torts § 315 (1965). One of the recognized exceptions to this rule arises where the defendant has the power to control another's actions. Peck, 146 Vt. at 65, 499 A.2d at 425; Harper & Kime, The Duty to Control the Conduct of Another, 43 Yale L.J. 886 895 (1934); see also Restatement (Second) of Torts § 315(a), (b) (exceptions arise where a "special relation" imposes a duty to control another's actions or to protect a third person).

Plaintiff predicates the existence of a legal duty in this case on IBM's "special relationship" with Lamphere as his employer, contending that IBM was negligent in failing to control an employee it knew or should reasonably have known was intoxicated, thereby constituting a foreseeable risk to third persons should he be allowed to drive.

The primary case relied on by plaintiff in support of her claim is Otis Engineering Corp. v. Clark, 668 S.W.2d 307 (Tex.1983). In...