Sunday, June 4, 2017

Up On The Roof

LeClair v. LeClair, 2017 VT 34

By Elizabeth Kruska

This case reads a lot like a law school hypothetical. In fact, part of me wonders if there’s a Vermont Law School professor of torts out there reading this opinion thinking, “This is a mighty fine way to teach premises liability.”

The facts here are fairly simple. Plaintiff is the grandson of Defendant. Defendant is an experienced builder and Plaintiff is an experienced roofer. Defendant went to his own son, Plaintiff’s dad, and wanted to get some work done on the roof of his place of business. Plaintiff’s dad went to Plaintiff, who wasn’t working at the time, and let him know about a roofing job for Grandpa.

One day in October, Plaintiff and a friend of his went to Defendant’s building to work on the roof. They’d already started the job, and had taken off some of the shingles, leaving only the underlay material exposed. Being October, it was chilly and some frost had formed on the roof. Plaintiff didn’t want to go up on the roof, because the conditions made it slippery. Defendant told him to wet down the roof and get to work. Plaintiff did as he was instructed, and unfortunately, fell to the ground below, injuring his head and neck.

Plaintiff filed suit, initially just claiming negligence on the part of Defendant. He alleged that Defendant owed him a duty of reasonable care of the property. He alleged Defendant was negligent in demanding he work in an unsafe condition.

The parties engaged in discovery, where a lot of information regarding the facts of the case, and also facts about the business relationship were developed. Defendant filed a motion for summary judgment, alleging there was no genuine issue of material fact, and that he was entitled to judgment as a matter of law. In that motion, Defendant included information regarding the business relationship. Defendant also included five defenses.

In response, Plaintiff answered the summary judgment motion (because that’s what you do) and then shortly after moved to amend the complaint to include two new counts, including a count regarding workplace liability. The trial court granted the summary judgment motion in favor of Defendant and denied the motion to amend the complaint. Plaintiff appealed, and SCOV reversed on both counts, saying the motion for summary judgment should not have been granted and also that Plaintiff should have been allowed to amend his complaint.

For starters, there’s this issue of premises liability. When law students learn this in torts class, there’s a lot of hue and cry about if someone is an invitee or a licensee and if it’s for business or not, and it’s all sort of confusing. But here’s the situation. If you invite someone to your premises, and there’s a danger, you are supposed to tell them about the danger. If the danger is open and obvious, you may not need to tell them about the danger. If it’s something the person might not discover or realize or protect themselves from, tell them. And if there’s a danger and the owner doesn’t do anything to protect invitees from the danger, there’s a problem.

I like to think about this in real life terms involving snacks. Suppose my friend Susan invites me over on a sunny Sunday afternoon for a rousing game of bocce. She sweetens the pot by promising cocktails and deviled eggs (truth: this happened). Suppose when I arrive there is excavation work being done on the lawn, making a large pit. She probably doesn’t have to tell me about the big pit in the yard because it’s obvious and I can see it. She probably should put up a fence, though, so no one falls into the pit. But that isn’t required.

Suppose now instead Susan invites me over for cocktails and deviled eggs and everything about her house looks fine. What she doesn’t tell me is that there’s a tricky step inside the back door. When I go inside to get the deviled eggs out of the fridge, my foot goes through the tricky step, and I fall, injuring my foot. Now she’s on the hook for my injury because she knew about the danger, the danger wasn’t apparent, and I got hurt as a result of not knowing there was a problem. If this was a workplace, there would be a duty on the owner/proprietor to make sure the workplace was safe for employees to carry out their jobs. This would get murky, I suppose, if instead of having a leisurely afternoon with my friend she had actually hired me to come over to make deviled eggs and cocktails for her Mid-Summer Bocce Bonanza (not a thing but it should be). Would she be my employer? That’s sort of the question here.

In the case of the LeClairs, SCOV said that it was an error to conclude that as a matter of law, Defendant had no need to warn Plaintiff about the slippery roof. Even though Plaintiff was an experienced roofer, and actually had started doing work on the roof, Defendant effectively commanded him to go onto the roof regardless of its condition. SCOV says there actually was a genuine issue of material fact in dispute and it should have been settled by a jury, not by a judge granting a summary judgment motion. Part of the issue is that Defendant was also an experienced builder; a jury would be able to compare the two parties and take into account what Defendant did and said and the impact on Plaintiff.

SCOV also says that the plaintiff should have been allowed to amend his complaint to add two counts. In Vermont we have very liberal pleading rules, meaning that courts are supposed to allow parties to amend their pleadings pretty freely. There are a couple reasons for this. First of all, a party who has a case should be allowed to make his or her pleadings fit the case so that it gets before the court. It’s bad policy to dismiss viable cases just because the pleadings aren’t totally correct. If a party needs to fix something so the pleading fits the situation, he or she should be able to do that. If it doesn’t prejudice anyone and is done in good faith, the trial court is supposed to allow amendments.

Secondly, the parties necessarily always know more about what’s going on in a case than the judge does. In this instance, the parties did a lot of discovery, including depositions. They found out additional information as the case developed, and it became clear to the plaintiff that amending the initial complaint to add counts was the right way to go.

The trial court here denied the plaintiff’s motion to amend the complaint because of when it was filed. The case was initially filed as a single negligence count. After discovery was finished, Defendant filed a motion for summary judgment. In its motion, Defendant raised some new-ish issues and defenses, part of which revealed themselves through depositions. Because of the issues raised by Defendant in the summary judgment motion, Plaintiff discovered different bases of liability and moved to amend the complaint shortly after filing its summary judgment response. This all happened fairly quickly and well before trial. SCOV said it was error for the trial court to disallow the amendment since the pleadings were now essentially going to conform to the evidence everyone already knew and nobody would be prejudiced by the amendment.

So, this gets reversed and sent back to the trial court for further proceedings.

There’s a dissent in this case, and the dissent picks up on a thread that feels like common sense in all of this. The dissent takes the position that Plaintiff was an experienced roofer. He had been working on the roof, and had information about the condition of the roof. He knew it was stripped of shingles and he knew it was slippery because he knew there was frost on it. Based on all this, there really wasn’t a duty for Defendant to warn Plaintiff about the condition of the roof since the Defendant knew the condition of the roof and went up there anyway. Even though Defendant was Plaintiff’s grandfather, Plaintiff was twenty-seven years old at the time, and could have made the decision for himself not to go up there when the conditions were bad. The dissent would not have reversed.


  1. I think the decision should have taken into account a few things:
    1. The relative experience of the grandfather and grandson.
    2. Was the grandson used to making decisions about when to work or not, or was he used to following orders.
    3. A roofer who has no work in October in Vt may not be very experienced or good. This should have been a red flag to an experienced builder.
    4. What was the relationship between the parties like. Was there any thing that took this outside the normal employer / employee relationship that may have made it hard to stand up to the grandfather?

  2. Those are all factual issues that the Supreme Court wouldn't be able to examine in the context of this opinion, as they're confined to the record below. But they're good factual issues that the parties would potentially try to raise if the case went to trial. I'd imagine if the case does have a trial, these are exactly some of the issues that would come up.