Wade v. Dodge

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. 89-315


Deborah A. Wade                              Supreme Court

                                             On Appeal from
     v.                                      Windham Superior Court

Richard H. Dodge                             December Term, 1990


John P. Meaker, J.

J. Eric Anderson and Patricia M. Beu, Law Clerk (On the Brief), of Fitts,
  Olson, Carnahan, Anderson & Bump, Brattleboro, for plaintiff-appellee

Robert D. Rachlin and Charles N. Hurt, Jr. of Downs Rachlin & Martin,
  Burlington, for defendant-appellant


PRESENT:  Allen, C.J., Gibson, Dooley and Morse, JJ., and Barney, C.J.
          (Ret.), Specially Assigned


     MORSE, J.   The only issue in this appeal from a plaintiff's verdict in
a personal injury action is whether there was sufficient evidence of
foreseeability of harm to submit the issue of negligence to the jury.  We
affirm.
     On August 18, 1983, plaintiff was a tenant in defendant's four-unit
apartment building in Bellows Falls, Vermont, when she fell from a second
floor porch seriously injuring herself.  The accident happened while a group
of young people were partying and one of them, as a stunt to give the
impression he had fallen off the porch, climbed down a porch post out of
sight.  At the time, plaintiff was seated outside a knee-high railing with
her feet dangling off the porch.  The area where she was seated was one to
two feet wide between the edge and the railing.  As some of the partyers
moved toward where the prankster disappeared from sight, they leaned against
the railing.  The railing's support post was loose, and the railing moved
outward about a foot sweeping plaintiff off her perch to the ground.
     The porch was a common area for the tenants and their guests to gather.
Defendant had seen people sitting on the railing, with their feet outside,
and it was not unusual for persons to sit in the area between the railing
and the edge.  Two weeks before the accident, another tenant had noticed
the loose railing and told the defendant about it.  Defendant, however, did
not repair the post before the accident.
     The jury returned a plaintiff's verdict, which was reduced because the
jury found plaintiff was 40% comparatively negligent.  Defendant appeals the
court's failure to grant his motion for judgment notwithstanding the
verdict on the ground that defendant did not owe plaintiff a duty of care
because her use of the porch was unanticipated.  See, e.g., Grann v. Green
Mtn. Racing Corp., 150 Vt. 232, 233, 551 A.2d 1202, 1203 (1988) (if
evidence, viewed in light most favorable to prevailing party and excluding
modifying evidence, does not fairly and reasonably support verdict, motion
must be granted).
     The court's instruction to the jury on the issue here presented is in
the language requested by defendant:
         A landlord is under no obligation to render the premises
         safe for a purpose which he can not reasonably anti-
         cipate that they will be used. . . .  A landlord is not
         liable for injury resulting from a misuse of his
         property unless the misuse is one he knew of or ought to
         have known about and if he failed to take reasonable
         steps either to prevent such misuse in the future or to
         protect those on his premises from the consequences of
         such misuse.

     The evidence was sufficient to permit the jury to conclude that
defendant knew, or at least should have known, that tenants used the porch
as a place to socialize, that persons sat in the area outside the railing
which was roomy enough to be used in that way, that a loose railing
existed, and that persons inside and outside the defective railing might be
hurt.  See, e.g., Waite v. Brown, 132 Vt. 20, 29, 312 A.2d 915, 919 (1973)
(foresight of injury or knowledge of danger is proved if a reasonably
careful person would have appreciated the risk).
     The factual key to this case is the landlord's reasonable expectation
that plaintiff would be where she was.  On this issue there was evidence
fairly and reasonably supporting the verdict.

     Affirmed.

                                        FOR THE COURT:



                                        Associate Justice