Favreau v. Miller
Annotate this Case
NOTICE: This opinion is subject to motions for reargument under R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
No. 87-085
Pamela Favreau Supreme Court
v. On Appeal From
Chittenden Superior Court
Donald Miller
April Term, 1989
Alden T. Bryan, J.
William R. Marks, Burlington, and James M. Libby, Jr., Vermont Legal Aid,
Inc., Montpelier, for plaintiff-appellant
Miller & Tonelli, Randolph, for defendant-appellee
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
MORSE, J. Plaintiff brought suit to recover for her injuries after she
fell down the stairs in the apartment she rented from the defendant in
Burlington, Vermont. The jury found for defendant, and plaintiff appeals,
claiming error in the jury instructions. We affirm.
In December 1983, plaintiff and a roommate rented the apartment -- the
second and third floors of a house -- from defendant. Defendant lived on
the first floor. The interior stairway in question led from the
apartment's main living area on the second floor to a large bedroom on the
third, an area that was formerly the attic. The stairway was steep, had no
handrail, and headroom at the top was inadequate. Defendant knew of these
problems and the parties had discussed plans for renovations. Thereafter,
on March 19, 1984, plaintiff fell down the stairs, dislocating her hip.
The court instructed the jury on the landlord's negligence as follows:
First, you should understand that a landlord is not a guarantor
of the safety of his tenants, nor is he liable for every injury
that his tenants may suffer on the premises. He may be found
liable, however, where personal injuries to tenants are caused by
his negligence in caring for the property. The landlord is
required to use reasonable care in the upkeep of his apartments
and to keep them in reasonably safe condition for his tenants.
Failure to use reasonable care in the upkeep of the property may
be negligence, for which the landlord can be held liable if a
tenant is injured.
Negligence is the doing of some act which a reasonably prudent
person would not do, or the failure to do something which a
reasonably prudent person would do, when prompted by consider-
ations which ordinarily regulate the conduct of human affairs. It
is, in other words, the failure to use ordinary care under the
circumstances in the management of one's person or property.
Ordinary care is that care which reasonably prudent persons
exercise in the management of their own affairs in order to avoid
injury to themselves or their property, or to the person or
property of others.
As applied here to an apartment house, negligence means the
lack of ordinary care in the upkeep of the property in order to
avoid an unreasonable risk of injury to tenants.
A landlord is required to take reasonable steps to repair any
dangerous condition for which he has had notice. He is also
required to know of any dangerous condition of which, in the
exercise of reasonable care, he would have learned about. He is
not required to know of all conditions that become dangerous from
time to time, absent lack of ordinary care in knowing the con-
dition of his property. Where, of course, the landlord has
acknowledged to the tenant the existence of a dangerous condition,
you may consider that as evidence of notice.
Where a landlord has notice, or with due diligence should have
known of a condition dangerous to the safety of tenants, he is
required to use ordinary care to make the property safe. That is,
he must take such reasonable steps as are necessary to take care
of the problem within a reasonable time.
Some conditions are so serious that prompt measures are
required to be taken. Others are not so serious and can await a
convenient moment to get to them. What is reasonable will depend
upon the circumstances of the particular case.
Therefore, the plaintiff must prove each of the following
essential elements of her case by a preponderance of the evidence:
1. That the condition of the stairway under
consideration was unreasonably dangerous;
2. That Donald Miller knew, or with the exercise of
reasonable care should have known, that there was a
dangerous condition with respect to the stairway leading
to the third floor;
3. That he failed to take reasonable steps within a
reasonable time to make them appropriately safe for the
tenants;
4. That the unreasonable dangerous condition was the
proximate cause of injuries to the plaintiff.
It might be well to define what we mean by the term
"unreasonably dangerous." Something is unreasonably dangerous
when it has a tendency to cause injury beyond the degree
ordinarily to be expected by a reasonably prudent and knowledge-
able user. A stairway is unreasonably dangerous when its
likelihood of causing injury is beyond that ordinarily to be
expected, and which should not be expected to be safely negotiated
by the use of ordinary care.
There has been evidence introduced here concerning the
Burlington Minimum Housing Code. The Code requires stairways in
rental apartments to be kept in a safe condition. Those that are
unsafe do not comply with the Code. It will be for you the jury
to determine whether or not, on the evidence presented here, the
stairway in question complied with the Code. If you find that it
did not, then you may consider such fact as evidence that the
stairs were unreasonably dangerous. If the defendant knew or
should have known that the stairs were in violation of the Code,
and he failed to take reasonable steps to bring them into
compliance, you may consider such fact as evidence of negligence.
Old buildings often have been modified for uses different than
what was originally intended. Apartments in old buildings often
are not as convenient or as safe as in modern buildings. Where a
tenant voluntarily rents an apartment with knowledge that it has a
less than convenient stairway which requires some additional care
to negotiate, the tenant cannot complain if he or she fails to use
the care required to descend the stairs successfully.
Where the stairs are unreasonably dangerous, however, and
cannot be negotiated safely with the ordinary care expected of one
living in such an apartment, then the tenant is not held to have
assumed the risk of injury that is caused by the unreasonably
dangerous condition. It will be for you the jury to determine
from the evidence whether the stairs here were unreasonably
dangerous.
Plaintiff complains that the jury instructions were deficient in two
general respects. First, over plaintiff's objection, the trial court
refused to instruct the jury that landlord liability for personal injury
could be based upon a breach of the implied warranty of habitability,
regardless of the landlord's negligence. Second, plaintiff claims that the
jury instructions on negligence were inadequate. Specifically, she argues
that the court erred by permitting the jury to find that plaintiff assumed
the risk of the defective stairway by renting an old apartment with
knowledge of the stairway's condition. She claims further that the
instructions misled the jury into believing that dangerous conditions that
are "not so serious" do not require prompt repair by the landlord. Finally,
plaintiff maintains that evidence of noncompliance with an applicable
housing code establishes a prima facie case of negligence; the court
instructed only that a violation of the housing code could be used by the
jury as evidence of the landlord's negligence.
I.
We note at the outset that the jury instructions in this case,
requiring a landlord to exercise ordinary care in the upkeep of the rental
property, represent a significant development in the common law of landlords
and tenants, because landlords had been immune from liability for any injury
to a tenant occurring in an area not within the landlord's possession and
control. Thus, in Smith v. Monmaney, 127 Vt. 585, 588, 255 A.2d 674, 676
(1969), we wrote:
The determinant issue in ascertaining responsibility
for negligence [by a landlord], arising from a dangerous
condition on the land, is possession and control of the
area which gives rise to the injury. It is the
landlord's duty to exercise reasonable care to maintain
entrances and passageways retained in his control for
the common use of tenants in multiple dwelling premises.
(Citations omitted.). See also Waite v. Brown, 132 Vt. 20, 25, 312 A.2d 915, 916 (1973) ("The parties agree that unless the porch and stairway were
under the possession and control of the landlord there was no duty on the
landlord to exercise reasonable care to maintain them."). As the stairs in
the present case were inside the apartment, leading from the living space on
the second floor of the house to the bedroom on the third floor, the
landlord would have enjoyed immunity under the old law.
The trial court here properly shunned the common-law categories. As
stated in a leading treatise, "it is no part of the general law of
negligence to exonerate a defendant simply because the condition
attributable to his negligence has passed beyond his control before it
causes injury . . . ." 2 F. Harper & F. James, The Law of Torts { 27.16, at
1509 (1956). The New Hampshire Supreme Court in 1973 called the rule of
landlord tort immunity an anomaly, manifesting "untoward favoritism" to
landlords. Sargent v. Ross, 113 N.H. 388, 391, 308 A.2d 528, 530 (1973).
"We think that now is the time for the landlord's limited tort immunity to
be relegated to the history books where it more properly belongs." Id. at
396, 308 A.2d at 533. We concur, and now hold that Vermont landlords too
may be held liable for exposing their tenants to unreasonable risks of harm
in the leased premises, whether or not they retain "control" of the
dangerous condition. See id. at 397, 308 A.2d at 534.
II.
The parties agree that the trial court properly rejected the
"possession and control" doctrine and that its more expansive theory of
landlord liability was in general correct. Plaintiff, however, insists that
the court did not go far enough, and should have told the jury that the
landlord's liability may also be predicated on a breach of the warranty of
habitability. This Court has recognized an implied warranty of habitability
in residential leases, permitting recovery of contract remedies when the
premises are substandard. Hilder v. St. Peter, 144 Vt. 150, 159-64, 478 A.2d 202, 208-11 (1984); see also 9 V.S.A. {{ 4457-59 (statutory warranty of
habitability). The question before us is whether the doctrine enunciated in
Hilder and provided now by statute may be invoked to recover damages for
personal injury on the rental property, that is, to recover under a contract
theory for what traditionally has been encompassed under tort theory.
Hilder, following a national trend, see Restatement (Second) of
Property, ch. 5, introductory note (1977), sought to recast the terms of
landlord-tenant law.
Historically, relations between landlords and tenants
have been defined by the law of property. Under these
traditional common law property concepts, a lease was
viewed as a conveyance of real property. The
relationship between landlord and tenant was controlled
by the doctrine of caveat lessee; that is, the tenant
took possession of the premises irrespective of their
state of disrepair. The landlord's only covenant was to
deliver possession to the tenant. . . . The landlord
was under no duty to render the premises habitable
unless there was an express covenant to repair in the
written lease.
144 Vt. at 157, 478 A.2d at 206-07 (citations omitted). Hilder discarded
the antiquated concepts: "'The modern view favors a new approach which
recognizes that a lease is essentially a contract between the landlord and
the tenant wherein the landlord promises to deliver and maintain the demised
premises in habitable condition and the tenant promises to pay rent for such
habitable premises.'" 144 Vt. at 158-59, 478 A.2d at 208 (quoting Boston
Housing Authority v. Hemingway, 363 Mass. 184, 198, 293 N.E.2d 831, 842
(1973)). We concluded that "in the rental of any residential dwelling unit
an implied warranty exists in the lease, whether oral or written, that the
landlord will deliver over and maintain, throughout the period of the
tenancy, premises that are safe, clean and fit for human habitation." Id.
at 159, 478 A.2d at 208. The tenant must only notify the landlord of the
deficiency and allow a reasonable time for its correction. Id. at 161, 478 A.2d at 209.
In addition to standard contract damages as measured by the difference
between warranted and actual rental value, Hilder allowed recovery "for a
tenant's discomfort and annoyance arising from the landlord's breach of the
implied warranty of habitability." Id. From this, plaintiff argues, it is
a short step to permit recovery for a tenant's injuries arising from the
landlord's breach.
We believe, however, that in the adjudication of a lawsuit for relief
from personal injury, the concepts of tort and negligence law provide the
more straightforward way to describe the respective duties and liabilities
of the parties. Where a tenant leases substandard premises, she ought
recover from the landlord her excess rental payments, her consequential
damages for "annoyance and discomfort" and, in certain instances, punitive
damages. Id. at 163, 478 A.2d at 210. The landlord broke a promise -- at
least one implied by the law -- and the tenant has the right to recover her
losses. But where the tenant seeks a damage award for her personal
injuries, other questions arise: What caused the injuries? Were they the
result of the landlord's breach? Did they flow from the tenant's own
carelessness? The law of negligence is best-suited to answer these
questions and has developed rules for their accommodation. For example,
under Vermont's comparative negligence statute, a plaintiff can recover only
if her own negligence contributed to no more than half the cause of the
accident, and even then only in proportion to the amount of negligence
attributed to the defendant. 12 V.S.A. { 1036. If she was primarily to
blame for her fall and injuries, she cannot recover. In essence, plaintiff
is asking us to do away with these principles, for, in her view, all damages
stemming from defendant's breach of the warranty would be recoverable.
Fault would not enter the calculation. We believe it is unwise to abandon
negligence principles in this context absent legislative direction. (FN1)
We therefore reject plaintiff's contention that the court erred by
refusing to instruct the jury that they might find defendant liable for
plaintiff's injuries without considering negligence. The question remains
whether the court's charge on negligence was proper.
III.
In reviewing the adequacy of jury instructions, we look at "the charge
as a whole rather than piecemeal." State v. Valley, ___ Vt. ___, ___, 571 A.2d 579, 588 (1989). "If as a whole the charge 'breathes the true spirit
and doctrine of the law' and there is no fair ground to say the jury has
been misled, there is no error." Id. (quoting State v. Norton, 147 Vt. 223,
235, 514 A.2d 1053, 1061 (1986)). In our view, the court's instruction on
negligence, viewed as a whole, states the law correctly.
Plaintiff contends that a landlord should not be absolved of liability
because a tenant "assumes the risk." We agree. If an unreasonably
dangerous condition exists in the apartment, the landlord must take
reasonable steps to correct the condition whether or not the tenant rented
the premises with knowledge of the condition. The tenant's conduct is
measured by negligence standards, not on the doctrine of assumption of the
risk. 12 V.S.A. { 1036. The jury charge here stated the correct principle
clearly and repeatedly.
Plaintiff, however, insists that the final two paragraphs quoted from
the charge, contradict the general rule and introduce the concept of
"assuming the risk." We disagree. The court sought to define the key terms
in its charge. Thus, "[s]omething is unreasonably dangerous when it has a
tendency to cause injury beyond the degree ordinarily to be expected by a
reasonably prudent and knowledgeable user." What degree of danger is
"ordinarily to be expected" of a stairway? This, of course, depends on the
circumstances. Where the stairs, leading to an attic bedroom, are visibly
steep and short of headroom, the reasonably careful user would expect to
travel them in a somewhat different manner than she would the stairs to a
hotel lobby. If they are not unreasonably dangerous -- even though they are
steep and wanting headroom -- then the landlord cannot be liable for the
tenant's injuries. Whether they are unreasonably dangerous is a question
for the jury. The last paragraph of the quoted instructions states this
principle. The jury was not given the impression that a tenant may assume
the risk of unreasonably dangerous conditions.
The reference to old buildings is likewise an appropriate attempt to
give content to the terms of art in the charge and flesh out for the jury
its role. A jury might find a particular condition to be unreasonably
dangerous in one circumstance, a brand new building, where it would not in
another, an old house renovated for rental apartments. Sargent v. Ross, the
leading new Hampshire case which plaintiff argues should have been followed
more closely by the trial court here, states: "General principles of tort
law ordinarily impose liability upon persons for injuries caused by their
failure to exercise reasonable care under all the circumstances." 113 N.H.
at 391, 308 A.2d at 530 (emphasis added). The age of the house is one of
the circumstances. So is the fact that the stairs led to an attic bedroom.
We agree with plaintiff that the court's language -- "Where a tenant
voluntarily rents an apartment with knowledge that it has a less than
convenient stairway which requires some additional care to negotiate, the
tenant cannot complain if he or she fails to use the care required to
descend the stairs successfully" -- is unfortunate, but in the context of
the overall charge it is not error. It is a transition from the charge on
the landlord's liability to the charge on contributory negligence, which we
have not quoted. (FN2) See Sargent v. Ross, 113 N.H. at 395, 308 A.2d at 533
("The obviousness of the risk is primarily relevant to the basic issue of a
plaintiff's contributory negligence."). The language merely begins to
explain that the tenant's own negligence must be considered in the final
account.
Plaintiff quibbles over the use of the term "unreasonably dangerous,"
arguing that the landlord has a duty to remedy all dangerous conditions.
Any staircase, no matter how well designed, has inherent dangers, however,
and a landlord is liable only for those that are unreasonably dangerous, as
that term was defined in the court's charge.
Plaintiff also complains of language in the sixth paragraph of the
charge, distinguishing serious conditions from ones "not so serious." We
find no error. Here, the court sought to give content to the "reasonable
steps" required of the landlord in the previous paragraph. A broken step,
for example, should be repaired "promptly"; a design flaw in the stairway
such as a low ceiling requires more time and planning to repair. The
landlord is merely required, as the court instructed, to "take such
reasonable steps as are necessary to take care of the problem within a
reasonable time. . . . What is reasonable will depend upon the circum-
stances of the particular case."
Finally, plaintiff contends that the court erred in its discussion of
the import of evidence of a violation of applicable housing codes.
Plaintiff wished the court to say that the jury should presume negligence
once a violation was found, subject to defendant's rebuttal. The court
instead told the jury that they may consider a code violation, if they found
one, as evidence that the stairs were unreasonably dangerous. Under V.R.E.
301(c)(3), however, the court must not instruct the jury on the presumption
of negligence ("existence of the presumed fact") when the defendant "has met
his production burden" ("burden of producing evidence sufficient to support
a finding that the presumed fact does not exist," V.R.E. 301(a)). The
defendant here met his burden of production, and the court correctly
instructed the jury by not making reference to the presumption, V.R.E. 301
(c)(3).
Affirmed.
FOR THE COURT:
Associate Justice
FN1. In 1985, Vermont enacted legislation applicable to leases entered
into or renewed after July 1, 1986, providing contract remedies to tenants
renting substandard dwellings. 9 V.S.A. {{ 4457-59. The statute, while
allowing a tenant to recover damages if the landlord "fails to make repairs
within a reasonable time and the noncompliance materially affects health and
safety," { 4458, does not appear to contemplate an action for personal
injury.
FN2. That portion of the charge is not in issue in this appeal. The jury
never considered the tenant's own negligence because, on the verdict
interrogatory form, the jury answered "no" to the first question: "Do you
find that the defendant was negligent and that his negligence was a
proximate cause of the plaintiff's injuries?"; it was not required to
proceed further.
-----------------------------------------------------------------------------
CONCURRING
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
No. 87-085
Pamela Favreau Supreme Court
v. On Appeal From
Chittenden Superior Court
Donald Miller
April Term, 1989
Alden T. Bryan, J.
William R. Marks, Burlington, and James M. Libby, Jr., Vermont Legal Aid,
Inc., Montpelier, for plaintiff-appellant
Miller & Tonelli, Randolph, for defendant-appellee
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
PECK, J., concurring. I concur in the result only.
___________________
Associate Justice
______________________________________________________________________________
DISSENTING
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports.
Readers are requested to notify the Reporter of Decisions, Vermont Supreme
Court, 111 State Street, Montpelier, Vermont 05602 of any errors in order
that corrections may be made before this opinion goes to press.
No. 87-085
Pamela Favreau Supreme Court
v. On Appeal From
Chittenden Superior Court
Donald Miller
April Term, 1989
Alden T. Bryan, J.
William R. Marks, Burlington, and James M. Libby, Jr., Vermont Legal Aid,
Inc., Montpelier, for plaintiff-appellant
Miller & Tonelli, Randolph, for defendant-appellee
PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.
DOOLEY, J., dissenting. I concur in the rejection of a warranty
theory for personal injury damages. I would not decide whether to abolish
the control test. We have not had the benefit of briefing and argument on
that issue since the parties agreed that control was unnecessary and that is
the law of this case. However, I believe that the jury instructions contain
two substantial errors in the application of negligence standards to this
case. Accordingly, I would reverse for a new trial.
The trial court instructed the jury that, in order to show negligence
on the part of the landlord, the plaintiff must prove that "the condition of
the stairway under consideration was unreasonably dangerous." The court
stated that a "stairway is unreasonably dangerous when its likelihood of
causing injury is beyond that ordinarily to be expected, and which should
not be expected to be safely negotiated by the use of ordinary care." The
court explained that when old buildings are modified and converted into
apartments they may not be "as convenient or as safe" as more modern
buildings. According to the court, when a tenant chooses to rent in these
older buildings with the knowledge that the building has a "less than
convenient stairway which requires some additional care to negotiate, the
tenant cannot complain if he or she fails to use the care required to
descend the stairs successfully." (Emphasis added). In such a case, in
effect, the tenant "assumes the risk of injury" posed by the hazardous
stairway.
As the majority states, we do not reverse for errors in a jury charge
as long as it breathes the true spirit and doctrine of the law and there is
no fair ground to say the jury was misled. It is, however, the duty of the
court to charge fully and correctly upon every point indicated by the evi-
dence. See Nauceder v. Howard, 127 Vt. 274, 278, 247 A.2d 76, 79 (1968).
The charge here contains a confusing merger of negligence and contributory
negligence concepts, including assumption of the risk. On top of the
confusion, there are two significant deviations from well-established
negligence law. Accordingly, there are more than fair grounds to believe
that the jury could have been misled.
The first error was in charging that the age of a building was a factor
which lowers the degree of care that a landlord must exercise. The charge
states explicitly that apartments in old buildings do not have to be as safe
as apartments in new buildings. The majority accepts this specific, unique
emphasis on the age of the building as simply an application of the
principle that reasonable care is determined in light of "all the circum-
stances," quoting Sargent v. Ross, 113 N.H. 388, 391, 308 A.2d 528, 530
(1973). The more relevant quote from Sargent comes later in the opinion:
"A landlord must act as a reasonable person under all of the circumstances
including the likelihood of injury to others, the probable seriousness of
such injuries, and the burden of reducing or avoiding the risk." Id. at
397, 308 A.2d at 534. This statement of the law has been generally
accepted. See Smith v. Arbaugh's Restaurant, Inc., 469 F.2d 97, 100 (D.C.
Cir. 1972) ("A landowner must act as a reasonable man in maintaining his
property in a reasonably safe condition in view of all the circumstances,
including the likelihood of injury to others, the seriousness of the injury,
and the burden of avoiding the risk."); Moloso v. State, 644 P.2d 205, 219
(Alaska 1982) (landowner must act as reasonable person in maintaining
property "'in view of all the circumstances, including the likelihood of
injury to others, the seriousness of the injury, and the burden on the
respective parties of avoiding the risk'") (quoting Webb v. City and Borough
of Sitka, 561 P.2d 731 (Alaska 1977)); Becker v. IRM Corp., 38 Cal. 3d 454,
468, 698 P.2d 116, 125, 213 Cal. Rptr. 213, 222 (1985) (en banc) (landlord
"must act toward his tenant as a reasonable person under all of the
circumstances, including the likelihood of injury, the probable seriousness
of injury, [and] the burden of reducing or avoiding the risk."); Stephens v.
Stearns, 106 Adaho 249, 258, 678 P.2d 41, 50 (1984) (quoting Sargent, 113
N.H. at 397, 308 A.2d at 534); Young v. Garwacki, 380 Mass. 162, 169, 402 N.E.2d 1045, 1049 (1980) (quoting Sargent); Basso v. Miller, 40 N.Y.2d 233,
241, 352 N.E.2d 868, 872, 386 N.Y.S.2d 564, 568 (1976) (quoting Arbaugh's
Restaurant, 469 F.2d at 100).
When one considers the age of a building in relation to these basic
factors, one can see that it can cut either way in specific cases. If the
consequences of age increase the likelihood of injury to tenants and
increase the likely seriousness of an injury, and these increased risks are
not offset by an increase in the burden of avoiding the injury, then the
landlord might have to take additional safety precautions in an older
building. If, in another case, the increased risks are more than outweighed
by the increased burdens, the landlord might not have to take as many safety
precautions as in a newer building. In a case involving an older building,
an instruction that age always reduces the landlord's responsibility with
respect to safety is simply wrong and clearly prejudicial to the tenant.
Even if general principles of landlord and tenant law were not in
conflict with the court's charge, I believe it cannot stand in light of the
applicable housing code. The code requires premises to be safe, obviously
establishing a standard of care. It does not provide that older buildings
can be less safe or unsafe. Thus, the charge on the age of the building is
in conflict with the charge on violation of the municipal housing code, and
the jury had no way to reconcile the conflict.
The second major defect in the charge is acknowledged by the majority.
In the part of the charge ostensibly defining defendant's standard of
liability, the trial court added language clearly stating that a tenant who
"voluntarily rents an apartment" knowing it has a "less than convenient
stairway" assumes the risk of injury if the tenant "fails to use the care
required to descend the stairs successfully." I find two errors in this
statement. It adds a "secondary" assumption of the risk defense, although
we have held that assumption of the risk of this type is simply an aspect of
contributory negligence. See Sunday v. Stratton Corp., 136 Vt. 293, 304,
390 A.2d 398, 404 (1978). Accordingly, "use of assumption of risk language
is irrelevant and confusing in a jury instruction on comparative
negligence." Id.; see also Perkins v. Windsor Hospital Corp., 142 Vt. 305,
310, 455 A.2d 810, 814 (1982) (use of assumption of risk language
reversible error because "parties were entitled to a jury free from
irrelevancies and possible confusion").
Further, this language directly undercuts the standard for landlord
liability adopted by the trial court in this case. As one court stated in
abandoning landlord immunity:
The practical result of this archaic rule has been to
discourage repairs of rented premises. . . . [A]
landlord with knowledge of a defect has less incentive
to repair it. And the tenant, who often has a short-
term lease, limited funds, and limited experience
dealing with such defects, will not be inclined to pay
for expensive work on a place he will soon be leaving.
Young v. Garwacki, 380 Mass. at 168, 402 N.E.2d at 1049. The import of the
trial court's charge is that a tenant who confronts an unsafe stairway in an
old building must make it safe or use extraordinary care to negotiate it
despite its unsafe condition. In essence, the language puts us back in the
situation where the landlord has little, if any, liability because the
tenant accepts the risk by renting the apartment. We directly rejected that
theory in Beck v. Dutra, 129 Vt. 615, 618, 285 A.2d 732, 735 (1971), where
we held that a tenant does not assume the risk of injury from a dangerous
stairway because use of the stairway was a "necessitous action . . . and not
a deliberate act involving a voluntary choice within the meaning of the
doctrine."
Although the majority acknowledges the error in the assumption of the
risk language, it finds that it does not warrant reversal because it was
merely a transition to the contributory negligence discussion and the jury
did not find contributory negligence. The instructions here were written
with appropriate subtitles to guide the jury in what they were considering.
The language at issue precedes a section distinctly headed, "contributory
negligence," and there is no indication that it was a transition to that
section or was part of the contributory negligence discussion. Because of
the its placement, it is very possible that the jury dealt with assumption
of the risk as part of its determination that defendant was not negligent,
without having reached the issue of contributory negligence. Even if the
assumption of the risk language were included with the contributory
negligence discussion, it would be confusing to the jury, as we held in
Windsor Hospital Corp.. This is not a case where the charge, taken as a
whole, is clearly understandable, though not worded as the appealing party
desires. On the contrary, the charge does not correctly state the law and
is confusing.
I would reverse and remand for a new trial. I am authorized to state
that Chief Justice Allen joins in this dissent.
Associate Justice
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
