Repucci v. Lake Champagne Campground, Inc.

• Decision Date: 25 April 2002
• Docket Number: No. 2:01-CV-287.,2:01-CV-287.
• Citation: 251 F.Supp.2d 1235
• Parties: Mary C. REPUCCI, individually and as executor of the Estate of Francis E. Repucci Plaintiff, v. LAKE CHAMPAGNE CAMPGROUND, INC., a Vermont corporation, Pierre LaFrance and Elizabeth LaFrance, individually, Woodall Publications Corp., a Delaware corporation, Affinity Group, Inc., a Delaware corporation, Affinity Group Holding, Inc., a Delaware corporation, jointly and severally, Defendants.
• Court: U.S. District Court — District of Vermont

251 F.Supp.2d 1235

Mary C. REPUCCI, individually and as executor of the Estate of Francis E. Repucci Plaintiff, v. LAKE CHAMPAGNE CAMPGROUND, INC., a Vermont corporation, Pierre LaFrance and Elizabeth LaFrance, individually, Woodall Publications Corp., a Delaware corporation, Affinity Group, Inc., a Delaware corporation, Affinity Group Holding, Inc., a Delaware corporation, jointly and severally, Defendants.

No. 2:01-CV-287.

United States District Court, D. Vermont.

April 25, 2002.

COPYRIGHT MATERIAL OMITTED

Susan J. Flynn, Esq., Clark, Long, Werner & Flynn, Burlington, VT, for Mary C Repucci, individually, plaintiff.

Scott R. Behman, Esq., Charles A. Murphy, Esq., Gibson & Behman, P.C., Burlington, MA, Kevin H. O'Neill, Esq., Gibson & Behman, P.C., Manchester, VT, for Lake Champagne Campground, Inc., a Vermont corporation, jointly and severally, Pierre LaFrance, individually, and jointly and severally, Elizabeth LaFrance, individually, and jointly and severally, defendants.

OPINION AND ORDER

SESSIONS, District Judge.

This action stems from the death of Plaintiffs husband at the Lake Champagne Campground, Inc. (the "Campground") after being struck by a falling tree. Plaintiff brings one count each of negligence and consumer fraud against the Campground and Pierre and Elizabeth La France (the "Lake Champagne Defendants") and one count each of negligent misrepresentation and consumer fraud against Woodall Publications Corp., Affinity Group, Inc., and Affinity Group Holding, Inc. (the "Woodall Defendants"). The Woodall Defendants have moved to dismiss the counts against them under Fed. R.Civ.P. 12(b)(6). (Paper 20) For the reasons discussed below, the motion to dismiss is GRANTED.

I. Background

The following facts are taken from Mary Repucci's Complaint and are assumed to be true for the purposes of this motion. On September 16, 1999, during a vacation in Vermont, Francis and Mary Repucci (the "Repuccis") decided to spend the night at the Campground in Randolph, Vermont. They consulted Woodall's Campground Directory (the "Directory") in selecting the Campground. The Directory stated that the Campground was "well-maintained" and a "premier" campground. The weather was poor that evening as Tropical Storm Floyd had brought high winds and rain to the area. The Repuccis chose the Campground based on the recommendation of the Directory that it was well-maintained and a premier campground and they believed it would provide them with a safe and comfortable environment for the night.

The next morning at approximately 3:45 a.m., while the Repuccis were sleeping, a large cottonwood tree fell on the left rear end of their recreational vehicle. The tree caused the roof of the vehicle to collapse, pinning Francis Repucci's head between the mattress and a wooden cabinet that had been part of the bedroom wall. Mary Repucci, who had been lying near her husband, was unhurt. She tried to release her husband from the collapsed wall but was unable to do so. Francis Repucci died from head trauma.

The tree that fell on the vehicle "had advanced wood decay in the trunk due to the presence of dead bark, extensive exterior fungi, and visible, apparent, patent, and obvious external decay and rot." Complaint 1116. The Lake Champagne Defendants had been advised previously of the fact that trees near to the Repuccis' campsite, including the cottonwood that struck the vehicle, were "structurally unstable and extremely hazardous due to significant visible decay." Complaint If 20(e). The Repuccis had no opportunity to observe the visible decay on the cottonwood tree that struck their vehicle because they arrived at the Campground after nightfall.

II. Legal Standard

A motion to dismiss for failure to state a claim upon which relief can be granted should be granted "only if `it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim[s] which would entitle [her] to relief.'" Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir.2000) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The Court must accept as true all the factual allegations in the Complaint, drawing all inferences from those allegations in the light most favorable to Plaintiff. Todd v. Exxon Corp., 275 F.3d 191, 197 (2d Cir.2001).

III. Discussion

Under Vermont law¹ neither the negligent misrepresentation claim nor the consumer fraud claim can survive the Woodall Defendants' motion to dismiss.

A. Negligent Misrepresentation

Vermont courts have adopted the standard for negligent misrepresentation claims set out in section 552² of the Restatement (Second) of Torts. Howard v. Usiak, 172 Vt. 227, 775 A.2d 909, 912-13 (2001); McGee v. Vermont Fed. Bank, FSB, 169 Vt. 529, 530, 726 A.2d 42, 44 (1999). Section 552 provides:

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Restatement (Second) of Torts [hereinafter "Restatement"] § 552(1) (1977).

Plaintiff argues, in essence, that she and her late husband justifiably relied upon the Directory's allegedly false statements that the Campground was "well-maintained" and "premier" in choosing to stay there during the stormy night and that as a proximate result of their justifiable reliance she has suffered pecuniary loss. The statements about the Campground were allegedly made by the Woodall Defendants in the course of their business as writers, publishers, and/or distributors of the Directory and while renting a campsite for the night is more a consumer, than a commercial or business, transaction, Vermont courts have applied section 552 to other consumer transactions. See Silva v. Stevens, 156 Vt. 94, 108, 589 A.2d 852, 860 (1991) (purchase of a home); Hughes v. Holt, 140 Vt. 38, 41, 435 A.2d 687, 689 (1981) (same). However, Plaintiffs complaint fails to meet two key elements of a negligent misrepresentation claim: misrepresentation and proximate cause.

Plaintiffs complaint does not describe the provision of "false information" as contemplated by section 552. Section 552 applies to "information given as to the existence of facts." Restatement § 552 cmt. b (emphasis added). In contrast, statements of opinion generally cannot form the basis of actions for fraud. See Proctor Trust Co. v. Upper Valley Press, Inc., 137 Vt. 346, 350-51, 405 A.2d 1221, 1224 (1979). The same can be said for actions based on negligent misrepresentation. See VNA Plus, Inc. v. Apria Healthcare Group, Inc., 29 F.Supp.2d 1253, 1265 (D.Kan.1998) (applying Missouri law); Omega Eng'g, Inc. v. Eastman Kodak Co., 908 F.Supp. 1084, 1097 (D.Conn.1995) (applying Connecticut law); New York Fruit Auction Corp. v. City of New York, 81 A.D.2d 159, 439 N.Y.S.2d 648, 652 (N.Y.App.Div.1981), aff'd mem., 56 N.Y.2d 1015, 453 N.Y.S.2d 640, 439 N.E.2d 356 (1982).

While juries are generally given the task of determining whether a statement is one of fact or opinion, if the statement is "so plainly of the one class or the other ... [it] can be disposed of by the court without the aid of the jury." Batchelder v. Birchard Motors, Inc., 120 Vt. 429, 433, 144 A.2d 298, 301 (1958). In particular, "`[statements of quantity, quality, and value are usually held to be expressions of opinion and therefore not actionable.'" Id. 120 Vt. at 434, 144 A.2d at 301 (quoting Belka v. Allen, 82 Vt. 456, 462, 74 A. 91, 93 (1909)). In this case the statements in the Directory that the Campground was "premier" and "wellmaintained" were opinions, not statements of fact. They constituted subjective evaluations of the quality and value of the Campground. Accordingly, they are not actionable under section 552.

Moreover, damages recoverable under section 552 must be proximately related to the false information provided by the defendant. See Hobart v. P. J.'s Auto Village, Inc., 136 Vt. 287, 289, 388 A.2d 419, 420 (1978) ("It is also the well established law that negligence to be actionable must be the proximate cause of the injury for which compensation is sought.") (citing Cameron v. Bissonette, 103 Vt. 93, 95, 152 A. 87, 88 (1930)); Rivers v. State, 133 Vt. 11, 14, 328 A.2d 398, 400 (1974); Restatement § 552B(1) (permitting recovery only of pecuniary losses for which the misrepresentation is the legal cause). In this case, all of Plaintiffs requested damages³ stem from the falling of the tree on the recreational vehicle. The link between the alleged misrepresentation and the death of Francis Repucci from the falling tree is tenuous at best. As a matter of law the alleged misrepresentations in the Directory cannot be said to be the legal or proximate cause of injuries caused by a tree falling on a recreational vehicle during severe weather. See Hobart, 136 Vt. at 289, 388 A.2d at 420-21 (that a garage owner left a car in an unenclosed, unguarded storage area over night did not constitute proximate cause of damage to the car where unknown person or persons entered the storage area during the night and stole the hubcaps); Rivers, 133 Vt. at 14, 328 A.2d at 400 (granting statutorily authorized weekend pass to correctional center inmate was not the proximate cause of an accident occurring when a vehicle collided with a stolen truck driven by the inmate while the inmate was allegedly intoxicated and driving at a high rate of speed and without headlights).

In sum, Plaintiffs negligent misrepresentation claim must dismissed because the facts alleged in the complaint do not establish the elements of negligent misrepresentation as adopted in Vermont. The Woodall Defendants owed no duty of care under section 552 to the Repuccis in writing, publishing, and/or...