Saturday, July 26, 2014

Extinction of distinction . . .

Demag v. Better Power Equipment, Inc., 2014 VT 78

By Jeffrey Messina

In this case, the SCOV takes the bold step of abolishing Vermont's common law negligence distinction between licensees and invitees.  Perhaps the SCOV wanted to make this year's administration of the bar exam just a little more interesting.

Plaintiff appeals a summary judgment decision against him in his personal injury case. The superior court concluded that plaintiff was a licensee of the defendant rather than an invitee. As such, plaintiff was entitled to a lesser standard of care, and plaintiff lost.  Or did he?  

Let's take a look at the facts.  

Plaintiff worked for a car dealership that provided automobile service. As part of the dealership service, plaintiff would go get customer vehicles at their locations. Plaintiff provided this service to Better Power Equipment, Inc.’s, (“BPE”) general manager and his wife, picking up the cars from BPE's parking lot. On this particular occasion, plaintiff drove to BPE for the scheduled service, and parked in his usual spot next to the general manager’s vehicle. After briefly speaking with the general manager about the necessary service, plaintiff returned to his vehicle, retrieved a few items, took a step . . . and fell into an uncovered storm drain! (I think there’s a British comedy in there, or at least, a classic Chevy Chase pratfall, but I’m rambling.) He filed the case below to recover damages for the injuries he sustained as a result of the fall.

Under its lease terms, BPE is responsible for maintaining all buildings and surface areas of the premises. A recent snowfall had covered the drain, so the opening was not noticeable. The crux of the matter is that the success of plaintiff's negligence claim against BPE depends on the nature of the duty BPE owed him; the existence of a duty "is primarily a question of law."

Under the historic common-law approach to landowner liability, the landowner’s duty to a person on the land depends on whether that individual is an invitee, a licensee, or trespasser. They love to throw this kind of thing in the bar exam. The trial court found plaintiff was a licensee at the time of injury and granted SJ to BPE because a landowner does not owe a duty of ordinary care to a licensee. In this case, the court found BPE had no duty to "inspect the land to discover possible or even probable dangers."

On appeal, plaintiff argues the trial court should have found that he was an invitee rather than licensee and that BPE therefore owed a duty of reasonable care. He claims there was sufficient evidence of negligence to reach a jury. Alternatively, plaintiff reasons that the SCOV should hold all lawful business visitors should be entitled to a duty of reasonable care.

The SCOV reviews summary judgment rulings de novo.

The SCOV starts with the premise that Vermont has always held landowners to different duties of care conditioned on whether the person owed that duty is an invitee, licensee, or trespasser.

An invitee is someone who "enters the land for purpose of business dealings with the landowner." The land owner thus owes a duty of reasonable care to an invitee, such that the invitee "is not unnecessarily or unreasonably exposed to danger." On the other hand, a licensee is someone who simply "enters or remains on land with the consent of the landowner." A licensee is entitled to a duty of care only to prevent "active or affirmative negligence by the landlord."  This is the stuff that bar-exam torts questions are made of.

The SCOV admits that while it has continued to recognize traditional, common-law premises liability, it has for some time realized the distinction between invitees and licensees does not reflect modern social values, and concedes the Court has avoided confronting the question directly.

Rejoice, O true believers! The court shall not punt this day. The SCOV definitively determines whether Vermont should have one common standard of care for all people who enter on land with the permission of the landowner.

To be expected with a decision of this magnitude, the SCOV raps for a bit about stare decisis, asserting it will only vary from settled common-law when warranted by changing collective standards. The court then goes into the storied history of common-law premises liability, citing the distinction of the “tripartite invitee-licensee-trespasser” as originating from British common-law "in an era where land ownership was paramount and the primary source of power, wealth, and dominance." It goes on like that for a bit. I'll spare you.

The SCOV acknowledges a small majority of state courts have eliminated the distinction between licensees and invitees, and provides examples of such “reform” states as including Vermont's closest neighbors: Maine, Massachusetts, New Hampshire, and New York. Before simply caving, of course, our Court resolves to examine the basis for the licensee-invitee distinction in Vermont and decide whether these reasons still apply today.

More history derived from English common law.

The SCOV notes the “arbitrariness, rigidity and complexity” of the distinctions that have developed to separate licensees from invitees is one of the reasons many courts have removed the classifications. The Court also concedes the case is a good example of the “arbitrariness and rigidity” of the common-law distinctions.

Before plaintiff fell into the storm drain, he parked his vehicle in an area employees parked, as well as customers. Therefore, BPE owed a duty of reasonable care to other people. It was just [bad] luck that it was plaintiffnot someone elsewho fell in the storm drain. The SCOV then takes some time to discuss, arguably with a bit of humor, how arbitrary it is to combine a lawful visitor’s level of protection against harm to the specific reason for being on the property.

The SCOV also explains the difference between the era in which the common law arose, and today’s litigious climate. The common law formed in the days of Yore, when "the presumption [was] that landowners generally were free to act as a please within the confines of their own property." In contrast, the Court notes today universal control of land use for the protection of the public is the norm. In its analysis, the court points to the fact that since the status classifications were adopted, we (the royal We) have considerably expanded the use of tort liability to protect health and safety, which, by comparison, makes a lower standard of care for landowners in relation to licensees “an anomaly in modern tort law.”

After the court further discusses "modern social mores and humanitarian values," it definitively declares it is persuaded that a change in the law is needed. And, as we hear the faint and distant drumroll in anticipation of a decisive decision, the High Court defends what it's about to do from naysayers who may say any necessary change should come from the Legislature. The Court “conclude[s] that this is an issue on which the need for modernization is so strong [it] must act.” [Personally, I really appreciate the irony of using quasi-olde English to declare the need for modernizing something.]

Then, in a profound moment, the SCOV changes the common-law rule and holds that a landowner owes the same duty of care to a licensee as to an invitee. The status of a person is no longer controlling and is now simply "one element, among many, to be considered in determining the land owner's liability under ordinary standards of negligence." Next we’ll be doing away with primer seisen!

As an asidebut an important aside—the SCOV makes very clear it is not suggesting any change to the duty owed to trespassers. The law that "a landowner owes no duty to protect the trespasser from injury caused by unsafe or dangerous conditions" is still good law in Vermont. So people, keep those no trespassing signs posted! I think you can shoot someone in defense of propertybut only if you use a spring-gun. [Editor's note: any author musings—hell, anything—in SCOV Law should NEVER, EVER UNDER ANY CIRCUMSTANCES be taken as legal advice.  You've been warned.] 

The SCOV has changed the applicable standard to require “reasonable care under all circumstances,” and reasonable care in common-law negligence depends on whether a defendant’s action was objectively reasonable under the circumstances. Accordingly, "the degree of care that a reasonably prudent person would exercise, and thus the scope of the legal duty of ordinary care, is determined by the foreseeability of the consequences of an individual's acts or omissions," and not the status of the person legally entitled to be on the land.

Because there is now no longer a distinction between licensees and invitees for the purposes of determining liability, the SCOV states the plaintiff demonstrated enough evidence to raise a genuine issue of material fact of foreseeablity for a jury, and the trial court's ruling is reversed and remanded.

1 comment:

  1. Can we infer from this case that land not posted constitutes an 'implied invitation' to hunt, hike, etc., and that those who choose to do so are therefore 'licensees' of the landowner? This certainly isn't what 12 V.S.A. 5791 states, as it was passed by the Legislature in 1998 to encourage people not to post their property.