Farnham v. Inland Sea Resort Properties, Inc.

Farnham v. Inland Sea Resort Properties, Inc. (2002-223); 175 Vt. 500;
824 A.2d 554

2003 VT 23

[Filed 28-Feb-2003]

                                 ENTRY ORDER

                                 2003 VT 23

                      SUPREME COURT DOCKET NO. 2002-223

                             JANUARY TERM, 2003


  David R. Farnham III	               }	APPEALED FROM:
                                       }
                                       }
       v.	                       }	Grand Isle Superior Court
                                       }	
  Inland Sea Resort Properties, Inc.,  }
  d/b/a	} Apple Tree Bay Resort and    }
  Campground	                       }	DOCKET NO. 9-2-00 Gicv

                                                Trial Judge: Ben W. Joseph

             In the above-entitled cause, the Clerk will enter:

       ¶  1.  Plaintiff David Farnham III appeals from an order of the
  Grand Isle Superior Court granting summary judgment in favor of defendant,
  Inland Sea Resort Properties, Inc., thus defeating his claims sounding in
  negligence.  Plaintiff was injured in a car accident on defendant's
  campground and subsequently sued for damages, alleging that: (1) defendant
  owed and breached its duty to control consumption of alcohol by underage
  drinkers on its property; and (2) defendant owed and breached its duty to
  adequately warn of a dangerous curve in the entrance road to defendant's
  campground.  While we affirm summary judgment as to plaintiff's first claim
  of negligence, we reverse and remand as to the second. 

       ¶  2.  The following facts were undisputed.  Defendant owns a large
  campground, known as Apple Tree Bay Resort and Campground, in South Hero. 
  For a fee, defendant rents individual campsites to members of the public. 
  Those renting a campsite must register and pay the rental fee at the
  campground's registration desk upon their entrance to the campground.  The
  registration desk closes at 9:00 p.m.  However, the entrance and campground
  road remain open to the public and no gate blocks access to the campground
  after 9:00 p.m.  To register after-hours, individuals are directed to the
  home of the campground manager, Rick Abare.

       ¶  3.  At approximately 1:45 a.m. on August 10, 1996, plaintiff, who
  was then sixteen-years-old, arrived at a party held on defendant's
  property.  The previous evening, defendant had rented one of its 300
  campsites to eighteen-year-old Tonya Horrican, who hosted the party at the
  site.  The party began at approximately 8:00 p.m. with between six and
  eight individuals under the age of twenty-one in attendance.  The party
  lasted until approximately 2:00 a.m.
     
       ¶  4.  Plaintiff remained at the campground for approximately
  forty-five minutes, where he smoked marijuana, but did not consume alcohol. 
  Plaintiff then asked his friend, Matt Hazen, who had driven plaintiff to
  the party, for a ride home despite plaintiff's knowledge that Matt Hazen
  had consumed alcohol that evening.  With plaintiff as a passenger, Matt
  Hazen drove off a sharp curve in the campground road and crashed his car. 
  As a result of the accident,  plaintiff sustained injuries.  Other than a
  small speed-limit sign posted near the registration desk, no speed or other
  signs warning drivers of the sharp curve existed on the campground road at
  the time of the accident. 

       ¶  5.  Plaintiff sued defendant to recover for his injuries
  sustained in the car accident.  Plaintiff alleged that defendant was
  negligent in failing to control the underage drinking at the campground,
  and negligent in its failure to warn of the sharp curve in the campground
  road.  Defendant filed a motion for summary judgment, claiming that the law
  imposes no duty on landowners who are unaware of underage drinking on their
  property to prevent that drinking, and that the law imposes no duty upon
  landowners to warn trespassers of dangerous conditions on their property,
  or to warn of dangers that are either open, obvious, or known to
  trespassers.  The superior court agreed with defendant and issued an order,
  which stated in its entirety that:

    [t]he plaintiff was a trespasser in the defendant's campground at
    the time of the accident.  He went there at about 1 a.m. to attend
    a party where other teenagers were drinking.  He was smoking
    marijuana.  He asked an intoxicated driver to give him a ride
    home.  The driver crashed the car on the way out and the plaintiff
    was injured.  The defendant owed no duty of care to the plaintiff.

  Plaintiff filed a motion for reconsideration, which the trial court
  rejected by finding that "[t]here is no evidence that supports the
  plaintiff's claims."  This appeal followed.  

       ¶  6.  In his appeal to this Court, plaintiff claims that the trial
  court erred in granting summary judgment to defendant based on its
  conclusion that plaintiff was a trespasser to whom defendant owed no duty
  of care.  Our review of summary judgment is de novo, and in proceeding with
  that review, this Court applies the same standard as the trial court. 
  Springfield Terminal Ry. Co. v. Agency of Transp., 13 Vt. L. W. 334, 335
  (2002).  Summary judgment is appropriate only where, accepting the
  allegations of the nonmoving party as true, there exist no genuine issues
  of material fact and the moving party is entitled to judgment as a matter
  of law.  Baisley v. Missisquoi Cemetery Ass'n., 167 Vt. 473, 477, 708 A.2d 924, 926 (1998). 
   
       ¶  7.  Plaintiff's first claim on appeal is that the trial court
  erred in determining that defendant did not have a duty to control the
  underage drinking occurring on the campsite rented by Tonya Horrican, and
  consequently, no duty to protect plaintiff from the hazards associated with
  underage drinking.  We disagree with plaintiff.  Landowners are not liable
  for the injuries caused by the consumption of alcohol on their property
  when those landowners were not present during consumption, did not furnish
  the alcohol, and did not control the alcohol consumed.  Knight v. Rower,
  170 Vt. 96, 102, 742 A.2d 1237, 1242 (1999).  Plaintiff does not allege
  that defendant furnished the alcohol to the underage drinkers at the party. 
  Moreover, plaintiff admitted in its response to defendant's undisputed
  statement of facts that "[a]t no point in time prior to the accident was
  camp manager Rick Abare, or any other agent or employee of the campsite,
  aware of the party or the consumption of alcohol by minors at that party." 
  As a result, the trial court correctly concluded that defendant owed no
  duty to plaintiff.  Defendant did not furnish the alcohol and was,
  according to the statement of undisputed facts, unaware of both the party
  and the consumption of alcohol by underage drinkers on its property. 
  Accordingly, we affirm summary judgment on this claim.

       ¶  8.  Plaintiff also argues on appeal that the trial court
  incorrectly determined that he was a trespasser to whom defendant owed no
  duty of care.  An action for negligence fails absent a duty of care owed by
  the defendant to the plaintiff.  Rubin v. Town of Poultney, 168 Vt. 624,
  625, 721 A.2d 504, 506 (1998) (mem.).  In Vermont, a landowner owes no duty
  to protect a trespasser from injury caused by unsafe or dangerous
  conditions.  Buzzell v. Jones, 151 Vt. 4, 6, 556 A.2d 106, 108 (1989). The
  operative question in this appeal is, therefore, whether the trial court
  was correct in determining that plaintiff unquestionably qualified as a
  trespasser when he entered defendant's campground.  From the record
  submitted on summary judgment, we cannot conclude that, as a matter of law,
  plaintiff was a trespasser. 

       ¶  9.  We have maintained the traditional common law approach to
  landowner liability.  See Menard v. Lavoie, __ Vt. __, __, 806 A.2d 1004,
  1006 (2002) (mem.) (not reaching plaintiff's request to abandon
  status-based approach to landowner liability);  Baisley, 167 Vt. at 477,
  708 A.2d  at 926.  Therefore, in this case, plaintiff could have qualified
  as either an invitee, licensee, or a trespasser when he entered defendant's
  campground.  A trespasser is one who "enters or remains upon land in the
  possession of another without a privilege to so do created by the
  possessor's consent or otherwise."  Restatement (Second) of Torts § 329
  (1965); Baisley, 167 Vt. at 478, 708 A.2d  at 927.  A licensee is one "who
  is privileged to enter or remain on land only by virtue of the possessor's
  consent," Restatement (Second) of Torts § 330, and an invitee is:

    (1) . . . either a public invitee or a business visitor.

    (2) A public invitee is a person who is invited to enter or remain
    on land as a member of the public for a purpose for which the land
    is held open to the public.

    (3) A business visitor is a person who is invited to enter or
    remain on land for a purpose directly or indirectly connected with
    business dealings with the possessor of the land.

  Id. § 332.
   
       ¶  10.  The facts submitted on summary judgment do not conclusively
  establish that plaintiff was a trespasser; as plaintiff argues on appeal,
  the facts may establish that he was an invitee.  According to the
  Restatement, those "who go to a hotel to pay social calls upon the guests .
  . . are business visitors, since it is part of the business of the
  hotelkeeper . . . to afford the guest . . . such conveniences."  Id. § 332
  cmt. g.  There is a genuine issue as to whether those paying social calls
  upon registered guests at defendant's campground are required to register,
  or whether defendant allows those individuals to enter the campground
  freely.  While defendant, and apparently the trial court, equate the
  failure to register with trespasser status, the evidence does not support
  such a conclusion.  If defendant's policy is to allow those individuals
  visiting one of its registered guests to enter the campground without
  registering themselves, then plaintiff may qualify as a business invitee,
  or in the alternative, a licensee.  Such statuses would impose a duty of
  care upon defendant.  See Menard, __ Vt. at __, 806 A.2d  at 1006
  (landowners owe business invitee a duty of reasonable care to keep premises
  in safe and suitable condition so that invitee not  unnecessarily or
  unreasonably exposed to danger); Peters v. State, 161 Vt. 582, 583, 636 A.2d 340, 341 (1993) (mem.) (citing Restatement (Second) of Torts § 342
  cmt. d, illustration 2 (1965) for the proposition that a landowner has duty
  to warn licensees about known dangers that involve an unreasonable risk of
  harm that licensee will not discover or realize).  

       ¶  11.  While we express no opinion on the duty, if any, defendant
  owed plaintiff under the circumstances recited here, we find that this case
  was not ripe for summary judgment.  The trial court concluded that
  plaintiff was a trespasser despite facts in dispute suggesting otherwise. 
  As a result, we reverse the trial court's grant of summary judgment on this
  issue and remand for further proceedings consistent with this order.  

       Affirmed in part and reversed and remanded in part.



                                       BY THE COURT:

         
                                       _______________________________________
                                       Jeffrey L. Amestoy, Chief Justice

                                       _______________________________________
                                       John A. Dooley, Associate Justice

                                       _______________________________________
                                       Denise R. Johnson, Associate Justice

                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice

                                       _______________________________________
                                       Frederic W. Allen, Chief Justice (Ret.)
                                       Specially Assigned