Perry v. Green Mountain Mall

Perry v. Green Mountain Mall (2002-534); 177 Vt. 109; 857 A.2d 793

2004 VT 69

[Filed 30-Jul-2004]


       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.


                                 2004 VT 69

                                No. 2002-534


  Sandra Perry	                                 Supreme Court
                                                 On Appeal from
       v.	
                                                 Caledonia Superior Court

  Green Mountain Mall and
  Raymond J. Heath d/b/a Heath Construction	April Term, 2004


  Alan W. Cook, J.

  Robin C. Curtiss, Lara J. Saffo and Edward M. Van Dorn, Jr. of Van Dorn &
    Curtiss, PLLC, Orford, New Hampshire, for Plaintiff-Appellant

  Keith Aten of Aten Clayton & Eaton PLLC, Littleton, New Hampshire, for
    Defendant-Appellee Green Mountain Mall.

  William D. Riley of Paul, Frank & Collins, Burlington, for
    Defendant-Appellee Heath.


  PRESENT:  Amestoy, C.J., Dooley, Johnson, Skoglund and Reiber, JJ.

       ¶  1.  AMESTOY, C.J.   This appeal arises from a jury verdict
  apportioning more than 50% of the fault for a parking lot accident to
  plaintiff-appellant Sandra Perry.  Appellant argues (1) the trial court's
  dismissal of defendant-appellee Raymond Heath from the case was error
  because the court improperly concluded that Heath did not owe a duty of
  care to plaintiff-appellant pursuant to the Restatement (Second) of Torts §
  324A; and (2) the error was not harmless.  We agree with appellant's first
  argument but not her second and therefore affirm.
   
       ¶  2.  Appellant was employed by the Ames department store at Green
  Mountain Mall in St. Johnsbury.  She was injured at the end of her workday
  in January of 1999, as she and a coworker were driving through the parking
  lot after closing the store for the night.  The parking lot was icy, and
  appellant's car slid on the ice.  The car came to a stop perpendicular to a
  service road in the parking lot with its front wheels in an embankment. 
  Appellant and her coworker stepped out of the car to try to free it from
  the embankment.  With the car running, appellant, standing between the door
  and the interior, attempted to shift the car into neutral from park.  The
  transmission engaged, and the car began to move backward with nobody at its
  controls.  Appellant attempted to run backward with the car but slipped on
  the ice and fell on her back.  The car dragged her approximately twenty
  feet and eventually came to a stop with a wheel on appellant's ribs. 
  Appellant suffered substantial physical injuries to her nose, face, and
  upper body.

       ¶  3.  Appellant brought a negligence action against Green Mountain
  Mall and Raymond Heath, the contractor responsible for maintaining the
  parking lot and roads around the Mall,  seeking to recover damages for the
  multiple injuries she suffered.  Appellant alleged that appellees'  failure
  to maintain and properly sand the premises caused her accident. 
   
       ¶  4.  During the four-day trial, appellant and appellees presented
  contradictory evidence regarding the safety of the parking lot.  The
  contract between Heath and the Mall required Heath to provide "snowplowing
  and sanding services" for the Mall's parking lot and roads.  Heath was
  required to go to the Mall every day, check the parking lot, and plow and
  sand when needed.  The Mall had the overall responsibility to maintain the
  premises, and to contact Heath whenever  the Mall personnel observed any
  problem with the parking lot.  Appellant offered witness testimony that the
  Mall parking lot and roadways were improperly maintained and had icy
  patches.  Appellant also put forth evidence that Heath had not sanded the
  lot for two days before the accident.  Heath, on the other hand, insisted
  that he had inspected the lot the day of appellant's accident and had found
  the parking lot to be well sanded.  Appellees also offered testimony from
  the owner of the Mall and a tenant at the Mall, that the roadways and
  parking lot were well maintained and were in good condition on the day of
  the accident.

       ¶  5.  At the end of appellant's case, Heath moved for judgment as a
  matter of law, arguing that he did not owe appellant a duty of care because
  he was only a contractor and not the owner of the property.  Appellant
  objected to the motion on the grounds that Heath owed her a duty under
  Restatement (Second) of Torts § 324A. (FN1)  After requesting the parties
  to submit briefs on the issue, the judge granted Heath judgment as a matter
  of law, finding § 324A inapplicable to small independent contractors.
                                              
       ¶  6.  At the end of the trial, the jury returned a verdict
  allocating appellant 53% of the fault for the accident and allocating 47%
  of the responsibility to the Mall.  Because appellant's share of fault
  exceeded 50%, she was barred from recovery pursuant to 12 V.S.A. § 1036. 
  Appellant moved for a new trial alleging that the dismissal of Heath
  "resulted in a gross miscarriage of justice," because it was possible that
  the jury could have found that the combined liability of the two defendants
  was greater than 50%.  Appellant argued again for the application of §
  324A, noting that neither defendant had claimed that it should not apply. 
  The trial court denied the motion for a new trial, finding that, even if
  Heath had remained a defendant, Heath's liability would be subsumed under
  the liability of the Mall.  This appeal followed. (FN2)
        
       ¶  7.  Appellant first claims that the trial court erred in finding §
  324A inapplicable and dismissing appellee Heath on that basis.  We agree. 
  A motion for judgment as a matter of law is granted only where there is no
  legally sufficient basis for a reasonable jury to find for the nonmoving
  party.  Brueckner v. Norwich Univ., 169 Vt. 118, 122, 730 A.2d 1086, 1090
  (1999); V.R.C.P. 50.  This court applies the same standard as the trial
  court.  Id.  Because § 324A applies to the facts of this case, a reasonable
  jury could have found Heath liable, and therefore Heath's dismissal was in
  error.
   
       ¶  8.  This Court specifically adopted § 324A in DeRosia v. Liberty
  Mut. Ins. Co., 155 Vt. 178, 182-83, 583 A.2d 881, 883-884 (1990).  That
  case involved a claim against a worker's compensation carrier who had
  provided safety investigations for the insured.  The plaintiff had been
  injured at work when the table saw he was working with severed three of his
  fingers.  We held that the insurer was liable because it had undertaken to
  provide a service - specifically investigating and monitoring the insured's
  workplace safety - and had neglected to require the insured to put the
  guard over the table saw as was directed in the manufacturer's
  instructions.  Id. at 182-87, 583 A.2d  at 883-86.

       ¶  9.  In finding § 324A inapplicable in this case, the trial court
  reasoned that it was unclear whether the section applies to independent
  contractors or small businesses.  The court distinguished Derosia from this
  case because there, the insurer's undertaking was "quite substantial" and
  the undertaking was in effect to take on the responsibility for the safety
  of the insured organization.  The court explained that to apply § 324A to
  small businesses and independent contractors like defendant Heath
  represents a substantial policy change in terms of the responsibility of
  independent contractors on premises liability issues that should not occur
  without the express guidance of the Legislature, or this Court.

       ¶  10.   We have never determined whether § 324A applies only in the
  context of larger organizations or where there is a substantial
  undertaking. Nevertheless, we find no support in the Restatement to
  distinguish tortfeasors based on the size of their enterprise.  According
  to the Restatement:

    This Section applies to any undertaking to render services to
    another, where the actor's negligent conduct in the manner of
    performance of his undertaking, or his failure to exercise
    reasonable care to complete it, or to protect the third person
    when he discontinues it, results in physical harm to the third
    person or his things.

  Restatement (Second) of Torts § 324A cmt.b. (FN3)  Nothing in the comments
  or the illustrations  that accompany the section suggests such a
  distinction.  Consistent with its language, other jurisdictions that have
  adopted section § 324A have applied it independently of the tortfeasor's
  size.  See Gazo v. City of Stamford, 765 A.2d 505, 510 (Conn. 2001)
  (adopting § 324A(b) and applying it in slip-and-fall case against
  independent contractor hired to remove ice and snow from private premises);
  Kostidis v. General Cinema Corp. of Ind., 754 N.E.2d 563, 567-68 (Ind. Ct.
  App. 2001) (holding that snow plow company had a duty of care under section
  324A); Stevens v. Jeffrey Allen Corp., 722 N.E.2d 533, 538-39 (Ohio Ct.
  App. 1997) (finding that § 324A could apply to landscape company,
  contracted to maintain the public library grounds).  The trial court erred
  by not applying the Restatement in this case, and in dismissing defendant
  Heath from the case as a matter of law.

       ¶  11.  Appellant next asserts, as she must, that the trial court's
  error is "inconsistent with substantial justice" and therefore compels the
  grant of a new trial.  See V.R.C.P. 61.  The test to determine when
  reversal is necessary "requires examination of just how the court's ruling
  affected the rights of the plaintiffs, not merely procedurally, but in
  matters truly of substance."  Ordinetz v. Springfield Family Ctr. Inc., 142
  Vt. 466, 470, 457 A.2d 282, 284 (1983).  
   
       ¶  12.  Appellant  urges us to reverse, emphasizing how the
  negligence was apportioned and arguing that even if Heath was allocated
  only 4% of the responsibility, appellant's responsibility could fall under
  50%, allowing her to recover.  In denying the motion for a new trial, the
  court conducted a different analysis.  The court reasoned that, assuming
  the dismissal was error, the allocation of 53% negligence on appellant
  would not have changed if Heath had been a party, because, in apportioning
  liability, the jury had necessarily considered two issues: whether
  appellant was "negligent in her actions in terms of how she operated that
  vehicle and behaved when she found herself in a perilous situation," which
  was an issue entirely independent of whether Heath was a party defendant or
  not, and whether there was negligence with regard to the condition of the
  premises, regardless of whether it was Heath's or the Mall's
  responsibility.  Because "there was virtually no evidence of negligence on
  the part of the Mall other than that which would be attributed to Mr.
  Heath" the jury's comparison of appellant's negligence was to Heath's
  negligence, which in turn was attributable to Green Mountain Mall.

       ¶  13.  In light of the arguments presented at trial and the jury
  instructions, we believe that the trial court conducted the correct
  analysis.  The jury was properly apprised of the fact that Green Mountain
  Mall was entirely responsible for the condition of the parking lot.  The
  Mall did not argue that it should escape liability because of Heath's
  negligence.  Indeed, in closing arguments, the Mall's counsel focused on
  appellant's contributory negligence and the allocation of liability between
  plaintiff Perry and defendant Mall, pointing out that:

    even if that ice was there, because of the Mall's fault, that's
    not what caused the harm . . . . but . . . you may decide there is
    some fault on both sides . . . . If that's the decision you come
    to . . . the evidence shows that the greater part of the fault,
    more than fifty percent. . . is [appellant's]. And if there is any
    fault on the part of the Mall, it's. . . less than fifty percent."

  Furthermore, the court's instructions were fully adequate to explain that
  the Mall was solely responsible for maintenance of the premises.  The jury
  was charged as follows:
   
    Green Mountain Mall [has] certain responsibilities with regard to
    the premises which constitute their business, and that would
    include the parking lot and the road that have been under
    discussion here . . . .  It's the landlord's duty, and here the
    landlord is Green Mountain Mall, to exercise reasonable care, to
    maintain entrances and the premises retained in their control for
    the use of . . . customers and employees of tenants of the Mall. 
    That duty extends to proper diligence in keeping such areas
    reasonably safe from the dangers incident to accumulations of ice
    and snow.

  We therefore find that the erroneous dismissal of appellee Heath was
  harmless, as it did not affect the ultimate allocation of liability.  

       ¶  14.   Accordingly, we affirm the trial court's denial of
  appellant's motion for a new trial.  See Schaad v. Bell Atlantic NYNEX
  Mobile, Inc., 173 Vt. 629, 633, 800 A.2d 455, 460 (2002) (mem.) (even
  assuming trial court error, no basis for granting new trial unless refusal
  appears inconsistent with substantial justice);  V.R.C.P. 61 ("no error or
  defect in any ruling or order . . . by the court . . . is ground for
  granting a new trial . . . unless refusal to take such action appears to
  the court inconsistent with substantial justice.").

       Affirmed.



                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice


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                               Footnotes


FN1.  Section 324A states that:

    One who undertakes, gratuitously or for consideration, to render
    services to another which he should recognize as necessary for the
    protection of a third person or his things, is subject to
    liability to the third person for physical harm resulting from his
    failure to exercise reasonable care to protect his undertaking, if
     (a) his failure to exercise reasonable care increases the risk of
    such harm, or
     (b) he has undertaken to perform a duty owed by the other to the
    third person, or
     (c) the harm is suffered because of reliance of the other or the
    third person upon the undertaking.

  Restatement (Second) of Torts § 324A (1965).

FN2.  Appellee Green Mountain Mall reiterates that it should not be
  considered a party to this appeal because appellant's notice of appeal and
  docketing statement specifically indicated an intent to appeal only the
  judgment in favor of appellee Heath.  The Mall first raised this issue in a
  motion to dismiss the appeal, which this Court denied because "[a]lthough
  plaintiff's notice of appeal indicated that she sought review of the
  earlier order dismissing defendant . . . Heath, the record reveals that the
  obvious intent of her appeal was to challenge the dismissal of defendant
  Heath so that she could obtain a new trial and a jury verdict that assigned
  each or all of the defendants, including defendant Green Mountain Mall,
  more than 50% of the responsibility for the accident." Notices of appeal
  are interpreted "liberally" and in the context of the case.  In re Appeals
  of Shantee Point, Inc., 174 Vt. 248, 259, 811 A.2d 1243, 1252 (2002).  If
  the notice of appeal is ambiguous, we look at appellant's apparent intent. 
  Id. at 259-60, 811 A.2d 1252-53.  We are unpersuaded by appellee's argument
  that appellant did not intend to seek a new trial against Green Mountain
  Mall when it filed the notice of appeal and docketing statement.

FN3.  Comment b continues: "[The section] applies both to undertakings for
  consideration, and to those which are gratuitous."  We need not, and do
  not, consider whether Vermont should adopt § 324A when the service is
  performed without consideration or in a noncommercial context.