Bacon v. Lascelles

Bacon v. Lascelles  (95-080); 165 Vt 214; 678 A.2d 902

[Opinion Filed 17-May-1996]

       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, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 95-080


Gail Bacon                                        Supreme Court

                                                  On Appeal from
    v.                                            Chittenden Superior Court

Clodomir Lascelles, et al.                        January Term, 1996



Linda Levitt, J.

       Frank E. Talbott of Wilson Powell Lang & Faris, Burlington, for
  plaintiff-appellant

       Marc B. Heath and Carol L. Shea of Downs Rachlin & Martin, P.C.,
  Burlington, for defendant-appellee Lascelles

       Neil H. Mickenberg of Mickenberg, Dunn, Sirotkin & Dorsch, for
  defendant-appellee Burlington Housing Authority


PRESENT:  Allen, C.J., Gibson (FN1), Dooley, Morse and Johnson, JJ.


       ALLEN, C.J.   Plaintiff Gail Bacon appeals from the grant of summary
  judgment for defendant Burlington Housing Authority (BHA) and from an
  adverse verdict and judgment in favor of defendant Lascelles in an action
  for the wrongful death of her son.  We affirm.

       On August 6, 1990, the decedent died during a fire in a two-story
  apartment owned by defendant Lascelles.  Plaintiff sued defendant Lascelles
  claiming he negligently built and maintained the apartment.  She alleged
  that the decedent could not escape the apartment because a second floor
  bedroom window did not open sufficiently in violation of applicable safety
  codes.

       Plaintiff also sued the BHA claiming it failed to properly inspect the
  apartment.  At the time of the fire, decedent was a guest of the
  apartment's tenants.  The tenants participated in the

 

  Section 8 housing program, which is a federal rent subsidy program
  implemented nationally by the United States Department of Housing and Urban
  Development (HUD) and administered locally by the BHA.  By agreement with
  HUD,(FN2) the BHA is required to inspect rental housing for compliance with
  the Federal Housing Quality Standards (HQS) prior to occupancy by
  recipients of federal rent subsidies.

       On December 8, 1989, the BHA inspected defendant Lascelles's apartment
  for compliance with the HQS.(FN3)  The inspector informed defendant Lascelles
  and the tenants of the results of the inspection, and both parties signed
  the Dwelling Inspection Checklist.  Under the category "Fire Exits" on the
  Dwelling Inspection Checklist, the BHA inspector checked "YES PASS."  This
  conclusion was based on the fact that the first floor of the apartment had
  two doors leading outside, one to the driveway and another to a back deck. 
  The inspector could not recall if she inspected the second floor bedroom
  windows, but her standard practice was to determine if the second floor
  windows opened but not to measure the window opening.

       On October 27, 1993, the BHA filed a motion for summary judgment
  arguing that it owed decedent no duty of reasonable care.  The trial court
  denied the motion concluding that the BHA "owed [decedent] a duty to act
  reasonably in inspecting the Section 8 premises."(FN4)  The



  court went on to say:

       It need not assure, unlike the owner of the premises, that the unit
  meets every safety condition existing at law.  BHA has only assumed a duty
  to inspect for the acceptability criteria in the federal regulations.  In
  this case, the building needed to contain an alternate means of egress in
  case of fire.

  On October 20, 1994, the BHA filed a second motion for summary judgment
  arguing that it did not breach its duty to the decedent.  On January 5,
  1995, the trial court granted summary judgment for the BHA concluding that
  "it did not breach its duty but acted reasonably in its inspection of this
  Section 8 premises and in determining that the building met the
  acceptability criteria outlined by the federal regulations."  In support of
  this conclusion, the trial court deferred to the BHA's interpretation of
  the HQS because it was responsible for their implementation.

       On pretrial motions, the court concluded that defendant Lascelles
  maintained the apartment in violation of the 1989 Vermont Fire Prevention
  and Building Code.  Consequently, the court allowed defendant Lascelles to
  offer evidence of prior inspections to rebut the presumption of negligence
  created by this finding.  Defendant offered evidence of the December 1989
  BHA inspection, a June 1990 BHA inspection,(FN5) and a July 1988 Burlington
  Minimum Housing Standards inspection.  The jury returned a verdict for the
  defendant, and plaintiff appealed.

                              I.


       Plaintiff first argues that the trial court erred in granting the
  defendant BHA's motion for summary judgment and that  the court erred when
  it deferred to the BHA's interpretation of the HQS.  We conclude that,
  while the trial court should not have deferred to the BHA's interpretation
  of the HUD regulations,  summary judgment was proper.

       We review a motion for summary judgment under the same as

 

  the standard as the trial court: summary judgment is appropriate only when
  the record clearly shows that there is no genuine issue of material fact
  and that the movant is entitled to judgment as a matter of law.  Cavanaugh
  v. Abbott Laboratories, 145 Vt. 516, 520, 496 A.2d 154, 157 (1985);
  V.R.C.P. 56(c).  In making this determination, we regard as true all
  allegations of the nonmoving party that are supported by admissible
  evidence, and we also give the nonmoving party the benefit of all
  reasonable doubts and inferences.  Messier v. Metropolitan Life Ins. Co.,
  154 Vt. 406, 409, 578 A.2d 98, 99-100 (1990).  Here, neither the BHA nor
  plaintiff dispute the relevant facts about the features of the apartment
  and the nature of BHA's inspection of the apartment.   The proper
  interpretation of the HQS and whether BHA's inspection  complied with the
  HQS are issues of law that must be determined on BHA's motion for summary
  judgment.

       The trial court deferred to the BHA's interpretation of the  HQS,
  citing Rogers v. Watson, 156 Vt. 483, 489, 594 A.2d 409, 412 (1991)
  ("[A]bsent compelling indications of error we must accept  the
  interpretations of administrative regulations by the agency responsible for
  their implementation.").  Plaintiff argues that  the BHA's interpretation
  should be given no deference because  HUD, not the BHA, promulgated the
  regulation.  We agree.

       The policy justifications for the deference rule -- such as agency
  expertise, familiarity with purpose of the regulation, and the express
  delegation of legislative authority to promulgate regulations -- are
  lacking when the agency is not interpreting its own regulation. R. Weaver,
  Judicial Interpretation of Administrative Regulations: The Deference Rule,
  45 U. Pitt. L. Rev. 587, 609-10 (1984); K. Davis & R. Pierce, Jr.,
  Administrative Law Treatise § 6.10, at 282 (1994).  Giving deference to the
  BHA is also contrary to federal administrative law.  Tsosie v. Califano,
  651 F.2d 719, 722 (10th Cir. 1981) ("The Secretary's construction is not
  entitled to special  deference to the extent it rests on the interpretation
  of another agency's statutes and regulations."); accord Whaley v.
  Schweiker,  663 F.2d 871, 873 (9th Cir. 1981).

 

       The Section 8 program requires the BHA to conduct inspections to
  determine whether participating rental housing complies with the access
  acceptability criteria in the HQS, found at 24 C.F.R. § 882.109(j) (1994). 
  The access acceptability criteria requires that "the building shall provide
  an alternate  means of egress in case of fire (such as fire stairs or
  egress through windows)."  Id. (emphasis added).  Plaintiff argues that 
  "means of egress" is defined by other safety codes as "a  continuous and
  unobstructed way of exit travel from any point in a building or structure
  to a public way."  National Fire  Protection Assoc., Life Safety Code
  Handbook § 5-1.2.1, at 40 (J. Lathrop, ed., 4th ed. 1988) (emphasis added);
  Building Officials & Code Administrators Int'l, Inc., The BOCA National
  Building  Code, Definitions, at 33 (10th ed. 1987).  Plaintiff argues for
  this interpretation so that she can further argue that the stairwell
  between the first and second floors of the apartment, combined with any
  exit on the first floor of the apartment, constituted one means of egress
  but that the second floor of the apartment lacked an alternative means of
  egress such as through a window.

       The plain language of the HQS is contrary to plaintiff's 
  interpretation.  First, the access acceptability criteria reads "building,"
  not "from any point in a building."  Second, the access acceptability
  criteria does not require windows or prescribe the dimensions of window
  openings but merely mentions windows as an example of a means of egress. 
  Third, the HQS contain window requirements only in the acceptability
  criteria for illumination and air quality.  See 24 C.F.R. §§ 882.109(e)(2)
  (illumination: sleeping rooms shall include at least one window),
  882.109(g)(2) (air quality: bathroom areas shall have at least one window
  that opens or other adequate exhaust ventilation).

       The Housing Inspection Manual, the Public Housing Agency
  Administrative Practices Handbook for the Section 8 Existing Housing
  Program, and the pamphlet A Good Place to Live!, all published by HUD,
  provide additional information on the meaning of the HQS.

       The Housing Inspection Manual states that an acceptable fire

 

  exit "means that the building must have an alternate means of  egress that
  meets local or state requirements." Office of  Housing, U.S. Dept. of
  Housing and Urban Development, Housing Inspection Manual § 8.2, at 119
  (March 1985).  Thus, HUD intended that public housing agencies such as the
  BHA would rely on local codes when determining the adequacy of emergency
  exits in Section 8 rental housing.

       Plaintiff argues that the Life Safety and BOCA Codes are the
  applicable local codes. The Life Safety Code was not adopted until the 1992
  Burlington City Ordinance and was therefore not applicable when the fire
  occurred in August, 1990.  Burlington, VT., Building & Building
  Construction ch. 8, art. I, § 8.2(a) (1992).  The 1981 BOCA Code, however,
  had been adopted by reference in the 1983 City of Burlington Ordinance. 
  Burlington, VT., Building & Building Construction ch. 8, art. I, § 8.2(a)
  (1983).  The 1981 BOCA Code required that sleeping rooms below the fourth
  floor have an emergency egress and that windows have minimum opening
  dimensions.  Building Officials & Code Administrators Int'l, Inc., The BOCA
  National Building Code §  809.4, at 156 (8th ed. 1981).

       The BHA argues that the Burlington Minimum Housing Standards, not the
  BOCA Code, is the applicable local code.  It also argues that, because the
  Minimum Housing Standards require only one means of egress from first and
  second floor dwelling units, the Minimum Housing Standards are less
  stringent than the HQS.  Burlington, VT., Housing ch. 18, art. I, div. 5, §
  18-95 (1992).

       A conflict exists in the 1983 Burlington Ordinance: the Ordinance
  adopts the BOCA Code, which required that second floor bedrooms have an
  emergency egress, but the Ordinance's Minimum  Housing Standards required
  only one means of egress from the entire dwelling unit.  The Ordinance's
  conflict provision states  that where the BOCA Code provisions, which were
  adopted by reference, conflict with the express provisions of the
  Ordinance, the express provisions control.  Burlington, VT., Building &
  Building Construction ch. 8, art. I, § 8.2(b) (1992).  Therefore,

 

  the Minimum Housing Standards control.  The plain language of the HUD
  regulation, which requires two means of egress from the building, is not
  modified by the local code, which only requires one means of egress from
  the dwelling unit.(FN6)

       The Administrative Practices Handbook states that the public housing
  agency must determine whether the alternative means of access is
  "considered adequate by the appropriate local  officials." Federal Housing
  Comm'r, U.S. Dept. of Housing and  Urban Development, Public Housing Agency
  Administrative Practices Handbook for the Section 8 Existing Housing
  Program  5-4(10)(b), at 5-13 (Nov. 1979).  The BHA presented
  uncontroverted evidence that the "appropriate local official" is the
  Burlington Minimum Housing Standards inspector, who inspects for compliance
  with the Burlington Minimum Housing Standards. Under those Minimum Housing
  Standards, one means of egress is considered adequate. Therefore, the plain
  language of the HQS, requiring two means of egress from the building, is
  not modified by what is "considered adequate by  the appropriate local
  official."

       The pamphlet A Good Place to Live! is designed to assist Section 8
  tenants to "understand what the Section 8 Existing  Housing Quality
  Standards [HQS] are and why they are important to you." Office of Housing,
  U.S. Dept. of Housing and Urban  Development, A Good Place to Live! 1
  (December 1989).  The pamphlet accomplishes this through "picture[s] and
  explanation[s]  of the items that the unit MUST HAVE."  Id. at 3.  The
  apartment  pictured in the pamphlet is similar to the apartment at issue in
  this case -- a two floor unit with kitchen and living rooms on the first
  floor and bedrooms on the second floor. Under the section entitled "Other
  Rooms," which includes bedrooms, the pamphlet describes the window
  requirements -- "At least one  window in every room used for sleeping. . .
  . At least one window must open if it was designed to be openable [sic]." 
  Id. at  10-11.  The section lacks any requirements for the opening
  dimensions of bedroom windows.  Under the section entitled

 

  "Health and Safety," the pamphlet states: "FIRE EXITS: At least  two exits
  from the building in case of a fire.  This requirement can be met by a
  window that opens if the unit is on the first or second floor."  Id. at
  14-15.  Again, HUD used the word "building" rather than "from any point in
  the building." Moreover, the picture included in the "Health and Safety"
  section shows as adequate two doors at opposite ends of a hallway on the
  first floor of the two floor apartment.  As with the apartment depicted in
  the pamphlet, the two-floor apartment here had two doors leading outside
  from the first floor.

       Because the apartment complied with the HQS, the BHA did not breach
  its duty to act reasonably in inspecting the apartment. Therefore, summary
  judgment for the BHA was proper.

                              II.

       Next, plaintiff argues that the trial court gave an erroneous jury
  instruction on the prima facie case of negligence rule.  The court
  instructed the jury that "a violation [of a safety code] may constitute
  negligence.  However, if the defendant present[ed] evidence that he acted
  as a reasonably careful landlord would have acted in similar circumstances,
  you may find that he was not negligent."  We do not reach plaintiff's
  argument regarding the jury instructions because plaintiff failed to object
  on this ground after the court charged the jury. Winey v. William E.
  Dailey, Inc., 161 Vt. 129, 138, 636 A.2d 744, 750 (1993) (post-charge
  objection must be made to preserve issue for appeal).

       Plaintiff also argues that the trial court erred by admitting evidence
  of prior inspections by the City of Burlington and the BHA.  Plaintiff
  contends that these inspections were irrelevant and therefore inadmissible. 
  We disagree.

       At the motions hearing considering plaintiff's motion in limine,
  plaintiff represented

 

  to the court that the prima facie case of negligence rule controlled.(FN7)
  Under that rule, proof of the violation of a safety statute creates a prima
  facie case of negligence.  Larmay v. VanEtten, 129 Vt. 368, 371, 278 A.2d 736, 738, (1971).  A prima facie case raises a rebuttable presumption of
  negligence and shifts the burden of production to the party against whom
  the presumption operates.  Id., 278 A.2d at 738-39; V.R.E. 301(a).  When
  that party produces "evidence fairly and reasonably tending to show that
  the real fact is not as presumed," the presumption disappears.  Larmay, 129
  Vt. at 371, 278 A.2d  at 739; V.R.E. 301(a).

       Here, the trial court informed the parties that it planned to instruct
  the jury that defendant maintained the apartment in violation of the 1989
  Vermont Fire Prevention and Building Code.  Defendant therefore had the
  burden to present evidence rebutting the presumption of negligence created
  by this violation.  Evidence of past inspections, and of defendant's
  reasonable reliance on those inspections to apprise him of safety code
  violations, would "fairly and reasonably tend[] to show" that the defendant
  acted as a reasonably prudent landlord under the circumstances.  Larmay,
  129 Vt. at 371, 278 A.2d  at 739; see also V.R.E. 401 (relevant evidence
  tends to make existence of consequential fact more or less probable than
  without evidence).  Because evidence of past inspections was relevant under
  the prima facie case of negligence rule, the trial court did not err when
  it admitted that evidence.

 


       Plaintiff also argues that the inspections should have been excluded
  as unfairly prejudicial under V.R.E. 403.  Plaintiff, however, did not
  invoke Rule 403 at trial.  Plaintiff merely claimed that the inspections
  were prejudicial but failed to argue that the prejudice substantially
  outweighed the probative value, the standard in Rule 403.  See Carter v.
  Hewitt, 617 F.2d 961, 966 n.4 (3d Cir. 1980) ("[A] party must specifically
  request the trial court to determine whether probative value is
  `substantially outweighed by the danger of unfair prejudice,' before the
  court is required to invoke the rule."); State v. Hogervorst, 566 P.2d 828,
  836 (N.M. Ct. App. 1977) ("Defendant's claim that the evidence was
  prejudicial did not alert the trial court to a question concerning Evidence
  Rule 403.  The fact that competent evidence may tend to prejudice a
  defendant is not grounds for exclusion of that evidence.").  Moreover, any
  potential prejudice to plaintiff was mitigated by the court's jury
  instruction, which informed the jury that the prior inspections did not
  relieve defendant from his responsibility for complying with the 1989
  Vermont Fire Prevention and Building Code. III.

       Plaintiff next argues that the trial court erred when it excluded the
  testimony of plaintiff's rebuttal witness as a discovery sanction.  The
  court excluded the witness's testimony because the plaintiff failed to
  supplement discovery under Rule 26(e).  "[A] trial court has inherent
  authority to enforce V.R.C.P. 26(e) by excluding evidence, granting a
  continuance, or by taking other appropriate action."  White Current Corp.
  v. Vermont Elec. Coop., 158 Vt. 216, 223, 609 A.2d 222, 226 (1992).  A
  trial court's sanctions for Rule 26(e) violations will be upheld unless it
  either totally withholds its discretion or exercises it on clearly
  untenable or unreasonable grounds.  Id.  The trial court did not abuse its
  discretion here.

       When, on the last day of trial, the court noted that plaintiff planned
  to call a former tenant as a rebuttal witness, defendant Lascelles objected
  on the basis of unfair surprise. Plaintiff argued that not until the
  previous day did he consider calling the witness to testify

 

  and that her testimony was offered to rebut the testimony of defendant
  Lascelles given the previous day.  Defendant Lascelles argued that the
  substance of his trial testimony was no different from his deposition
  testimony and that the plaintiff therefore knew of the need for rebuttal
  testimony in advance of trial.  The trial court decided to allow the
  witness to testify, but offered defendant Lascelles an opportunity to
  question her first.  After questioning the witness, defendant Lascelles
  continued to object on the basis of unfair surprise.  The trial court then
  inquired into the course of discovery.

       Defendant's interrogatories asked: "Do you have any information which
  indicates that decedent or any other person complained to Mr. Lascelles
  about the problems with the Jarvis apartment?"   Plaintiff responded "No." 
  Although it is not clear from the record whether plaintiff learned of the
  witness's identity before or after responding to the defendant's
  interrogatories, plaintiff did contact the witness four years before trial. 
  Notwithstanding plaintiff's contact with the witness long before trial,
  plaintiff never provided supplemental information as to "the identity and
  location of persons having knowledge of discoverable matters."  V.R.C.P.
  26(e)(1)(A).  Because plaintiff failed to supplement discovery, defendant
  was unaware that the witness would be called to testify until the last day
  of trial.  The defendant therefore had no opportunity to depose or
  investigate the witness in preparation for cross-examination.  Moreover,
  plaintiff called the witness to testify about a crucial fact, whether the
  window opened and whether defendant Lascelles knew that the window did not
  open.

       After exploring the course of discovery, the court excluded the
  witness from testifying, saying "I find it just a little disingenuous to
  claim that it was only yesterday that [plaintiff] thought of calling her as
  a witness when, in fact, she had extremely relevant information all along,
  information that was known to the plaintiff for at least a number of
  years."  Under these circumstances, the trial court did not abuse its
  discretion when, as a

 

  discovery sanction, it excluded the witness from testifying.(FN8)

       Affirmed.

                              FOR THE COURT



                              _______________________________________
                              Chief Justice


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                                 Footnotes



FN1.  Justice Gibson sat at oral argument but did not participate in
  this decision.

FN2. The agreement between HUD and the BHA is recorded in the Annual
  Contribution Contract.  HUD enters into these contracts with all public
  housing authorities which administer the Section 8 program.

FN3. The tenants already occupied the apartment when they applied for
  Section 8 assistance.

FN4. The BHA does not appeal the court's decision that it owed a duty
  of reasonable care to Section 8 tenants but does appeal the court's
  decision that it owed a duty of reasonable care to the decedent, a guest of
  Section 8 tenants.  See Corbin v. Buchanan, ___ Vt. ___, ___, 657 A.2d 170,
  172 (1994) (town owes no duty of care based on ordinance whose purpose was
  to protect general public).  In light of our disposition, we need not
  consider the BHA's argument on this issue.

FN5. When defendant Lascelles sought to evict the tenants because they
  had allegedly damaged the apartment, the BHA inspected the apartment again.

FN6. The building and dwelling unit are coextensive in this case.

FN7. Plaintiff's attorney said: "I will represent for Your Honor's
  instruction that . . . under the code these are the requirements, these are
  the standards, and if you find that the house violated these standards then
  you can find there is -- that this is a presumption of negligence."

Later at the motions hearing, the following colloquy occurred:

THE COURT: . . . Basically, what I am saying [to the jury] is there is
  . . . a presumption but the presumption may be rebutted by evidence to the
  contrary.

[PLAINTIFF'S ATTORNEY]: Right.  Pretty much the standard instruction .
  . . .

FN8. Plaintiff also argues that the trial court erred by ruling that
  she is not "next-of-kin" under the Wrongful Death Act, 14 V.S.A. § 1491,
  and erred in its jury instruction regarding the decedent's contributory
  negligence.  Even if the court did err, plaintiff suffered no prejudice
  because, having found defendant Lascelles not negligent, the jury never
  reached the damages issue.  V.R.C.P 61; see Bloomer v. Weber, 149 Vt. 187,
  190, 542 A.2d 258, 260 (1988) (reversal is required only where error
  complained of results in undue prejudice).

       Finally, plaintiff argues that the trial court erred when it allowed
  evidence of a subsequent relationship by the decedent's daughter's mother
  and when it excluded evidence of defendant Lascelles's subsequent
  modifications to the apartment window.  We do not address either of these
  arguments because they were not preserved below.  In re D.B., 155 Vt. 580,
  584, 587 A.2d 966, 968 (1991) (failure to preserve issues below precludes
  review on appeal).