Obrien v. Island Corp.

Annotate this Case

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. 87-061

Charles P. O'Brien Supreme Court

On Appeal From
v. Windham Superior Court

The Island Corporation November Term, 1988

Silvio T. Valente, J.

Thomas W. Costello and Ardith L. Baldwin of Thomas W. Costello, P.C.,
Brattleboro, for plaintiff-appellant

Miller, Cleary & Faignant, Ltd., Rutland, for defendant-appellee Island
Corp.

Lisa Chalidze of Hull, Webber & Reis, Rutland, for defendant-appellee
Aetna Casualty & Surety Co.

PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.

ALLEN, C.J. Plaintiff appeals from a judgment for defendant Island
Corporation (Island) following a jury verdict in its favor and the grant of
summary judgment for defendant Aetna Casualty and Surety Company (Aetna).
We affirm.
The action resulted from personal injuries sustained by plaintiff in a
building owned by Island and insured by Aetna. At the time of the accident,
plaintiff was employed by a corporation which had leased the premises from
Island. One of plaintiff's duties was to keep the boiler on the premises
operating so as to prevent the pipes and the heating system from freezing.
In the course of this employment he entered the boiler in order to remove
ashes from a firebox platform and became trapped therein when the door
closed upon his leg.
In his complaint plaintiff alleged that Island reserved control over
the premises, breached its duty to exercise reasonable care to provide him
with premises which were reasonably safe and free from latent defects, and
failed to warn him of dangerous and defective conditions on the premises.
In an amended complaint, he alleged that Island breached a statutory duty
created by 21 V.S.A. { 241(b) relating to the operation of boilers. The
allegations against Aetna were that it failed to fully and properly inspect
the area in question and to warn plaintiff of the danger. We first address
plaintiff's claims against Aetna.
I.
Plaintiff contends that the trial court erred in granting Aetna's
motion for summary judgment. The undisputed material facts are that Aetna
issued a policy of insurance to Island prior to the date of the injury to
plaintiff. The policy contained a condition relating to inspection which
reads in pertinent part as follows:
The company shall be permitted but not obligated to
inspect the named insured's property and operations at
any time. Neither the company's right to make
inspections nor the making thereof nor any report
thereon shall constitute an undertaking, on behalf of or
for the benefit of the named insured or others, to
determine or warrant that such property or operations
are safe or healthful, or are in compliance with any
law, rule or regulation.

Aetna did not inspect Island's premises before the date of plaintiff's
injuries.
Plaintiff maintains that Aetna may be liable under Section 324A of the
Restatement of Torts (Second)(1965). In Derosia v. Liberty Mut. Ins. Co., 1
Vt. L.W. 359 (Sept. 21, 1990), we held that an insurance carrier could be
subjected to liability where it undertook to render a specific service to
its insured which was necessary for the protection of a third person and its
failure to exercise reasonable care in so doing resulted in (a) an increased
risk of harm to the person, (b) the assumption by the actor of a duty owed
to the third person, or (c) harm to the third person resulting from reliance
on the understanding. Id. at 360.
The fundamental problem with plaintiff's argument, however, is that
Aetna did not contract or promise to inspect the premises and thus it did
not undertake to assume Island's duty. It simply obtained its insured's
permission to inspect the property.
Plaintiff further contends that Island relied upon Aetna to inspect the
premises, and that evidence of the reliance raised an issue of material fact
which should have precluded the grant of summary judgment. An examination
of the testimony upon which plaintiff relies discloses that Island relied
upon safety inspections by carriers other than Aetna. Accordingly, we find
no error in the grant of Aetna's motion for summary judgment.
II.
Plaintiff also makes a variety of claims against Island, none of which
warrant reversal. The majority of plaintiff's claims are directed at the
court's instructions to the jury. Specifically, plaintiff argues that the
court committed prejudicial error by instructing the jury that it must
determine whether or not defendant Island, in its lease arrangement with
Railroad Salvage Company, retained control over the boiler in question at
the time of plaintiff's injury as a condition precedent to any liability on
the part of defendant. Plaintiff also argues that the court, through its
jury instructions, erroneously restricted the jury's consideration of
control to the lease arrangement between Island and Railroad Salvage, that
our rule relating to landlord liability should be changed, that the court
erred in not granting his motion for a mistrial, and that the court erred by
failing to charge the jury on his theories of breach of warranty and strict
liability.
A.
The trial court instructed the jury that it must determine whether
Island retained control over the boiler in question at the time plaintiff
was injured and that, if it so found, Island then had the duty to keep the
premises in a safe and suitable condition. It further instructed the jury
that by statute a person shall not operate, cause to be operated or permit
to be operated any boiler or pressure vessel under his control or ownership
in a manner which causes or is likely to cause harm to other persons or
property, (FN1) and that a violation of this statute could be considered as
evidence of negligence.
The court's instruction that the jury had to determine whether Island
retained control of the premises was required by plaintiff's theories for
recovery. He had alleged and offered proof that Island had reserved
control over the premises "and, in particular control over said furnace."
He argued to the jury that "the question for you . . . is what measure of
control was reserved." When the instruction was given our law was well
settled that a landlord could not be subject to liability founded on
negligence unless the landlord reserved control over the area where the
injury occurred. Waite v. Brown, 132 Vt. 20, 25, 312 A.2d 915, 916 (1973);
Cameron v. Abatiell, 127 Vt. 111, 119, 241 A.2d 310, 315-16 (1968). (FN2)
Plaintiff also sought recovery under { 241(b), which in one alternative
required the jury to determine whether the boiler was under Island's
control. The court submitted interrogatories to the jury, one of which
required it to determine whether Island had retained control over the boiler
at the time of plaintiff's injury. In its explanation of this
interrogatory, it informed the jury that if it found that Island did not
retain control it was to sign defendant's verdict and go no further with
the case.
Plaintiff argues that he was thus deprived of jury consideration as to
whether liability could be imposed under { 241(b) by virtue of defendant's
ownership alone. The intent of the statute is to place the responsibility
for safe operation upon the person operating the boiler, whether it be the
owner or the one in control. The argument that liability could be imposed
upon one who does not have the ability to avoid it leads to an unjust,
unreasonable and absurd consequence; a result we are to avoid when
construing a statute. Craw v. District Court, 150 Vt. 114, 119, 549 A.2d 1065, 1069 (1988). The premises here were leased to Railroad Salvage
Company and Island could no longer enter for the purpose of controlling the
manner of operation. Absent a reservation for such entry it would be
unlawful. Livaditis v. American Casualty Co., 117 Ga. App. 297, 301-02, 160 S.E.2d 449, 452 (1968). Even with such a reservation, an owner would be
required to constantly monitor the operation of the boiler to avoid
liability if plaintiff's construction of the statute were accepted.
The law of this jurisdiction has long been that a tenant having control
of the premises is, so far as third persons are concerned, the owner and
that such persons must seek redress from the tenant. Beaulac v. Robie, 92
Vt. 27, 32, 102 A. 88, 90 (1917). We must presume that the Legislature did
not intend to overturn a long-established principle of law unless such an
intention appears by express declaration or by necessary implication. Gould
v. Parker, 114 Vt. 186, 190, 42 A.2d 416, 418 (1945). (FN3) We find no clear
intent to change this law in the applicable statute.
The argument advanced by plaintiff might well lead to even more
irrational consequences when applied to 21 V.S.A. { 251(b), which provides:
A person shall not maintain, keep or operate any
premises or any part thereof, or cause to or permit to
be maintained, kept or operated, any premises or part
thereof, under his control or ownership in a manner
which causes or is likely to cause harm to other persons
or property in case of fire.

Under the reasoning urged by plaintiff, a lessor of a residential property
might be liable under { 251(b) for the tenant's storage of flammables,
obstruction of exits, failure to provide or service alarms, or any other
tenant acts or omissions causing harm in case of fire, even though the
lessor would not have the means to alleviate or eliminate the exposure.
The Legislature could not have intended such consequences under either
statute. The intent was to impose the duty upon the person with the ability
to avoid the harm.
Because liability could not be imposed under { 241(b) by reason of
ownership alone on the facts presented there was no error in the
instructions.
B.
Plaintiff also argues that the trial court erroneously allowed a
witness to testify as to the contents of a letter containing the terms of
the lease arrangement between plaintiff's employer and defendant Island.
No objection was made to any of this testimony and the issue is, therefore,
not before us on appeal. R. Brown & Sons, Inc. v. Credit Alliance Corp.,
144 Vt. 142, 145, 473 A.2d 1168, 1170 (1984).
The failure of plaintiff to object to the absence of an instruction on
breach of warranty and strict liability also precludes review by this Court.
V.R.C.P. 51(b); McRea v. State, 138 Vt. 517, 520, 419 A.2d 318, 319 (1980).
C.
Plaintiff further urges that our rule absolving a landlord of liability
for defective conditions on the premises absent possession and control is
archaic and should be abolished. This argument is raised for the first time
on appeal. Indeed, in a supplemental memorandum in support of his motion
for a new trial, plaintiff stated that "he is not attempting to 'change the
law of control in premises liability cases.'" In his trial brief, plaintiff
contended that defendant retained the furnace under its control and because
of such control owed a duty to plaintiff to keep the premises reasonably
safe. The argument that plaintiff now makes was not made at trial.
Plaintiff's objection to the instruction as initially given on control did
not go to the issue of whether liability could be imposed on the landlord
absent control, but rather to the extent of control in this case. Thus, the
unobjected-to instruction on control became the law of the case and
plaintiff will not be heard to urge overruling of long-established law on
appeal absent a challenge thereto in the trial court. See In re Johnston,
145 Vt. 318, 321, 488 A.2d 750, 752 (1985) ("Issues not raised below will
not ordinarily be considered when presented for the first time on
appeal.").
D.
Plaintiff contends finally that the trial court erred in failing to
grant his motion for a mistrial following a question by defense counsel
regarding suit by the plaintiff against other defendants. Counsel for the
plaintiff and defendant Island elicited evidence that inspections of the
premises had been made by others prior to the time that plaintiff was
injured. Defense counsel then elicited from the president of Island that
some of those inspections were conducted by "insurance inspectors" for
insurance companies. He then asked, "And isn't it true, Mr. Read, that Mr.
Costello [plaintiff's counsel] sued those defendants in this very case?"
Objection was made and the question was not answered. At a bench conference
following the objection, plaintiff first moved for a mistrial and in the
event of its denial to be allowed to "go into that area ourselves without
being under the consequences of a mistrial or expenses against us. . . .
[W]e should be able to tell the jury that one insurance company settled and
paid money." The court ruled that "the door is open. I am going to let it
all in now." Plaintiff argues that the inquiry was improper and prejudicial
under Slayton v. Ford Motor Co., 140 Vt. 27, 29, 435 A.2d 946, 947 (1981).
The proscription in Slayton, however, was against informing the jury of the
fact of settlement or the amount thereof between plaintiff and one or more
co-defendants. The unanswered question did not furnish such information nor
did it furnish information from which the improper inferences sought to be
avoided in Slayton could be drawn. A motion for a mistrial is committed to
the discretion of the court and its denial is error only if prejudice is
shown. Rash v. Waterhouse, 124 Vt. 476, 477, 207 A.2d 130, 132 (1965).
Such is not the case under these facts.
Affirmed.

FOR THE COURT:

Chief Justice

FN1. According to 21 V.S.A. { 241(b):
A person shall not operate, cause to be operated, or
permit to be operated any boiler or pressure vessel
under his control or ownership, in a manner which causes
or is likely to cause harm to other persons or property.

FN2. As the dissent notes, considerable doubt was cast upon the future of
the control test in Favreau v. Miller, 2 Vt. L.W. l04, 105 (March 29, 1991).
We decline to address the issue here for reasons stated later in the opinion.

FN3. There is serious doubt about whether the Legislature intended that a
civil remedy exist for a violation of { 241. The Legislature has created
private remedies for unlawful employment practices, 21 V.S.A. {{ 232,
495b(b), discrimination in the sale or rental of real estate, 9 V.S.A. {
4506(a), dram shop violations, 7 V.S.A. { 50l, to name a few. The same
Legislature which enacted 21 V.S.A. { 241 afforded the victims of unlawful
mischief a private right of action five days after the passage of { 241.
See 13 V.S.A. { 3701(f). While this Court may determine that such a remedy
is appropriate in furtherance of the legislative purpose, Restatement
(Second) of Torts { 874A (1979), it should be hesitant to do so when it is
clear that the Legislature could have done so, knew it could do so, and did
not do so. See Burnette v. Wahl, 284 Or. 705, 711-12, 588 P.2d 1105, 1109
(1978) (en banc).

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Concurring

No. 87-061

Charles P. O'Brien Supreme Court

On Appeal From
v. Windham Superior Court

The Island Corporation November Term, 1988

Silvio T. Valente, J.

Thomas W. Costello and Ardith L. Baldwin of Thomas W. Costello, P.C.,
Brattleboro, for plaintiff-appellant

Miller, Cleary & Faignant, Ltd., Rutland, for defendant-appellee Island
Corp.

Lisa Chalidze of Hull, Webber & Reis, Rutland, for defendant-appellee
Aetna Casualty & Surety Co.

PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.

MORSE, J., concurring. I concur in nearly all of the Court's opinion
but write separately because I do not accept the Court's analysis in II A.
My reading of 21 V.S.A. { 241 (entitled "General duties") differs from
the Court's and the dissent's in a fundamental respect. That section
provides:
(a) A person shall not install or maintain a boiler
or pressure vessel which is unsafe or likely to be
unsafe to other persons or property.
(b) A person shall not operate, cause to be operated,
or permit to be operated any boiler or pressure vessel
under his control or ownership, in a manner which
causes or is likely to cause harm to other persons or
property.

Violating { 241 should not be "evidence of negligence" because it is not the
type of safety statute which proscribes specific conduct, for example,
exceeding a speed limit. To the contrary, { 241 contains no standards of
conduct whatsoever.
As a general rule, a court may adopt the requirements of a statute as
the applicable standard of care in a particular tort action, and, when it
does, violating the statute either becomes negligence per se, creates a
presumption or prima facie case of negligence, or is some evidence of
negligence. W. Keeton, Prosser and Keeton on the Law of Torts { 36, at 220,
230 (5th ed. 1984). But, in my opinion, the better-reasoned view is that
such a statute must express a rule of conduct in specific, concrete terms,
not merely set out a general or abstract standard of care. See, e.g., Rimer
v. Rockwell Int'l Corp., 641 F.2d 450, 454-55 (6th Cir. 1981) (regulations
making pilot responsible for determining whether aircraft is airworthy
before takeoff did not create specific enough duties to be basis of
negligence per se instruction); Dahle v. Atlantic Richfield Co., 725 P.2d 1069, 1073-74 (Alaska 1986) (statute requiring employer to keep place of
employment free of recognized hazards did not set forth a specific enough
standard of conduct to be basis for negligence per se instruction); Bauman
v. Crawford, 104 Wash. 2d 241, 247 n.1, 704 P.2d 1181, 1186 n.1 (1985) (en
banc) (statutorily proscribed conduct must qualify as negligence per se
before violating statute may be introduced even as mere evidence of
negligence).
Rather than creating a specific standard of conduct for those who own
or control the operation of boilers, { 241 sets the stage for the
promulgation of safety standards under { 242, which authorizes the
commissioner of labor and industry "to make rules pertaining to boiler and
pressure vessels, and standards to be observed, necessary for the safety and
protection of the public, employees, and property." In other words, { 241
does not define a person's duties with regard to boilers except to state the
broad objective that boilers be "safe." If { 241 is read to create a
binding, all-encompassing, safety standard, its plain meaning creates strict
liability whenever someone is hurt or property is damaged as a result of
boiler operation. Injury alone is not evidence of negligence, and { 241(b)
read literally makes the occurrence of harm tantamount to a violation of its
terms. In short, I do not believe the Legislature intended to penalize
persons who own or control boilers without a violation of a specific safety
regulation promulgated by the commissioner.
I believe the court should have instructed the jury in accordance with
my view that the common law, rather than { 241(b), requires landlords to
exercise reasonable care in the ownership and maintenance of rented
premises. As stated in Favreau v. Miller, 2 Vt. L. W. 104, 105 (March 29,
1991) (plurality), "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." I agree with the
Court in part II C, however, that plaintiff waived this claim by not
preserving it.

_______________________________
Associate Justice

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Concurring and Dissenting

No. 87-061

Charles P. O'Brien Supreme Court

On Appeal From
v. Windham Superior Court

The Island Corporation November Term, 1988

Silvio T. Valente, J.

Thomas W. Costello and Ardith L. Baldwin of Thomas W. Costello, P.C.,
Brattleboro, for plaintiff-appellant

Miller, Cleary & Faignant, Ltd., Rutland, for defendant-appellee Island
Corp.

Lisa Chalidze of Hull, Webber & Reis, Rutland, for defendant-appellee
Aetna Casualty & Surety Co.

PRESENT: Allen, C.J., Peck, Gibson, Dooley and Morse, JJ.

DOOLEY, J., concurring in part and dissenting in part. I concur in the
Court's disposition of the claim against Aetna. I cannot concur, however,
in the decision to reject plaintiff's claim that the trial court should have
charged the jury that violation of 21 V.S.A. { 241(b) could be considered
evidence of negligence despite the absence of control of the boiler by
Island. Plaintiff pled the statute and tried the case on the alternative
theory that control was irrelevant. First the trial court, and now this
Court, has cut the heart out of plaintiff's case despite the fact that it is
firmly based on precedents from this and other states. Accordingly, I
respectfully dissent.
It is helpful to an understanding of this issue to know the theories of
negligence involved here. They fall into two general categories.
The first category involves the safety of the boiler itself. Plaintiff
argued that the boiler was unsafe for three reasons. First and foremost, it
lacked a safety interlock that prevented the grate from rising when an
operator had entered through an observation door. This reason was
supported by testimony of an expert witness. Second, the automatic coal
feeder could not operate without a risk that the coal would burn outside the
boiler, and, as a result, coal had to be fed manually at night. As
discussed below, some of the witnesses testified that night operation by a
watchman was unsafe. Third, the system that operated the grate had been
separated from the furnace when the furnace was modified for low pressure
operation during the 1970s. The decoupling of the systems allowed the
grate to operate when the boiler coal fire was low, the condition when
plaintiff entered the boiler, although it would not have operated prior to
the modification. This reason is significant because arguably it allowed
the grate to operate and catch plaintiff's foot.
The second category involved the operation of the boiler. None of the
operators, including plaintiff and plaintiff's supervisor, had training in
operating the boiler. Expert witnesses for both sides found it unsafe to
have a person operate it alone at night, as plaintiff was doing at the time
of the accident. The expert witnesses agreed that it was unsafe for an
operator to enter the boiler while the fire was going. However, plaintiff's
supervisor testified that he did so and would have done exactly as plaintiff
under the circumstances present at the time of the accident.
This second category requires a tie to Island if the jury is to find
that it breached a duty of care. Plaintiff based his theories on the
actions of Stewart Read, president and sole stockholder of Island. Mr. Read
had a key to the leased premises and was present at them virtually every
day. At the request of plaintiff's supervisor, he provided books on boiler
operation. He failed, however, to provide the manual for the boiler which
was in his possession. Although he observed the operation of the boiler,
he did nothing. Nor did he do anything when he was told the boiler was a
piece of junk. He negotiated a memorandum of understanding to serve as a
lease and in that memorandum attempted to place the entire responsibility of
the maintenance, repair, and operation of the boiler on Railroad Salvage.
It is obvious why the control question was critical to plaintiff's
case. Despite his evidence that the boiler was unsafe, he could not
establish liability under the court's charge unless the jury found that the
boiler was controlled by Island rather than Railroad Salvage. Similarly,
his evidence about the actions of Stewart Read did not help him if the jury
found that Railroad Salvage controlled the boiler. Not surprisingly, he
turned to the statute, which reads:
(b) A person shall not operate, cause to be operated,
or permit to be operated any boiler or pressure vessel
under his control or ownership, in a manner which causes
or is likely to cause harm to other persons or property.

His theory was that Island "permit[ed] to be operated [a] . . . boiler . . .
under [its] . . . ownership, in a manner which causes or is likely to cause
harm to other persons or property" in violation of the statute, and this
violation was evidence of negligence.
Our law is clear that "violation of a safety statute is evidence of
negligence." Gilbert v. Churchill, 127 Vt. 457, 461, 252 A.2d 528, 530
(1969). The statute on which plaintiff relies is clearly a safety statute;
it governs unsafe boilers that can cause harm to persons. This is not a
case, as suggested by the majority, where plaintiff is arguing for a
private right of action for violation of a statute that does not provide the
remedy. Nor is it a case, as suggested by the concurring opinion, where
plaintiff seeks strict liability. See Restatement (Second) of Property,
Landlord & Tenant { 17.6 (1977) (statute or warranty of habitability
establish the duty; liability attaches only on failure to exercise due care
to discharge the duty). Plaintiff's claim is common law negligence which
is breach of a duty of care. That duty may arise as here from a statute.
See Smith v. Day, 148 Vt. 595, 597, 538 A.2d 157, 158 (1987).
The majority's answer appears to be that the statute doesn't mean what
it says because it leads to an "unjust, unreasonable and absurd consequence"
and because the Legislature didn't demonstrate with sufficient clarity that
it intended to change the common law. The majority's characterization of
the statute should be compared to that of a plurality of this Court in
Favreau v. Miller, 2 Vt. L.W. 104, 105 (March 29, 1991), a case decided only
three months ago. The opinion said:
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.

The statement in Favreau apparently didn't command a majority because
Justice Peck concurred in the result only and the Chief Justice and I,
dissenting on other grounds, indicated that we did not have to reach the
issue of the control test. Whether or not we decide to abolish the control
test generally, however, the plurality was correct in saying it is largely
based in history and not in modern notions of duties that underlie
negligence concepts. The trend is definitely away from it. See J. Page,
The Law of Premises Liability { 9.37, at 251 (2d ed. 1988). Abolition of
the control test can hardly be labeled as "unjust," "unreasonable" or
"absurd."
It is particularly ironic that the majority would use those labels in
this case. A witness described the boiler as taller than the Windham
superior courtroom was high and it would "probably occupy half of this
[court]room front to back and side to side." The landlord here had a key to
the leased premises and was on the site virtually every day. He often met
the on-site manager at the boiler. If there is anything unjust, unreason-
able or absurd here, it is that a commercial tenant would come into
possession of an unsafe piece of equipment of this size and complexity and
would replace it with safe equipment or that a tenant with no assistance
from the landlord, without even the operation manual in the landlord's
possession, would always be able to ensure safe operation. It is unjust and
unreasonable that a landlord who observed the boiler day-in and day-out
could claim that he had no duty with respect to it even though he was told
it was a piece of junk.
Nor can I accept the majority's second reason, that the Legislature has
not spoken clearly enough to change the common law. Obviously, the
Legislature can change common law doctrine if it does so in clear and
unambiguous terms. See State v. Francis, 151 Vt. 296, 306, 561 A.2d 392,
398 (1989). The statute is clear and unambiguous; I do not know what else
the Legislature could have said to express its intent. See Altz v.
Leiberson, 233 N.Y. 16, 18, 134 N.E. 703, 704 (1922) (Cardozo, J.) (general
safety statute eliminated the control test; "Apter words could hardly have
been chosen . . . "). In unmistakable terms, the statute imposes a duty on
owners to require safe operation. We cannot assume that the Legislature
used the words "or ownership" for no reason. See State v. Kreth, 150 Vt.
406, 409, 553 A.2d 554, 556 (1988).
The majority's holding here is clearly outdated. Prior to 1950, Courts
routinely held that safety statutes applicable to landlords did not obviate
the control test. See Davis & DeLaTorre, A Fresh Look at Premises Liability
as Affected by the Warranty of Habitability, 59 Wash. L. Rev. 141, 145
(1984). The decisions now are almost entirely to the contrary. See id. at
150-51. The decision of the majority is a throw-back, showing such
adherence to the control test that it is willing to ignore a statute
specifically modernizing the underlying duty of care in this area.
The reasoning of the concurrence is also at variance with the clear
weight of authority in this area. The two leading cases in the area
established duties of care based on statutes no more specific than { 241(b).
See Whetzel v. Jess Fisher Mfg. Co., 282 F.2d 943, 949 (D.C. Cir. 1960)
(regulation required landlord to rent premises that were in "clean, safe and
sanitary condition, in repair . . ."; applied where bedroom ceiling
collapsed); Leiberson, 233 N.Y. at 18, 134 N.E. at 704 (statute required
apartment to "be kept in good repair"; also applied where bedroom ceiling
collapsed). Most of the cases that have followed have involved statutes and
regulations no more specific than { 241(b). See, e.g., Panaroni v. Johnson,
158 Conn. 92, 101, 256 A.2d 246, 253 (1969) (statute required stairs to "be
maintained and kept in sound condition and good repair"); Ford v. Ja-Sin,
420 A.2d 184, 186 (Del. Super. Ct. 1980) (statute requires landlord to
provide "a rental unit which shall not endanger the health, welfare or
safety of the tenants or occupants and is fit for the purpose for which it
is expressly rented"); ex rel Jackson v. Wood, 11 Kan. App. 2d 478, 481, 726 P.2d 796, 799 (1986) (statute requires owner to "maintain [heating
appliances] in good and safe working order and condition"); Morningstar v.
Strich, 326 Mich. 541, 544, 40 N.W.2d 719, 721 (1950) (statute requires
owner to keep premises "in good repair"); Horvath v. Burt, 98 Nev. 186, 188
n.1, 643 P.2d 1229, 1231 n.1 (1982) (electrical wiring must be "maintained
in good working order"); Paprock v. Defenbaugh, 71 Or. App. 624, 626, 693 P.2d 654, 655 (statute requires "[a]dequate heating facilities . . .
maintained in good working order"), petition for review denied, 299 Or. 37,
698 P.2d 965 (1985); Boe v. Healy, 84 S.D. 155, 162 n.1, 168 N.W.2d 710, 714
n.1 (1969) (statute required boilers to be constructed and maintained so as
not to "create a hazardous condition"); Frion v. Coren, 13 Wis. 2d 300, 303-
04, 108 N.W.2d 563, 565 (1961) (statute required public buildings to be
maintained in a "safe" condition). Further, none of our prior cases show
concern about the specificity of safety statutes. See, e.g., McKale v.
Weeks, 115 Vt. 155, 156, 55 A.2d 199, 200 (1947) (statute applied which
requires use of "due and reasonable care" in backing an automobile). The
concurring opinion misses the central point: the statute is specific on the
issue here, that is, whether the landlord owed any duty with respect to the
boiler. The fact that it says no more than to provide for safe operation
should not be used to ignore the Legislature's assignment of responsibility.
I would reverse and remand for a new trial against Island.

Associate Justice

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