Corbin v. Buchanan

CORBIN_V_BUCHANAN.89-118; 163 Vt 141; 657 A.2d 170

[Filed:  28-Oct-1993]

[Motion for Reargument Denied 5-Jan-1995]

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. 89-118


Rita Corbin, Administratrix                  Supreme Court
of Estate of Michael M. McGuire
                                             On Appeal from
     v.                                       Windham Superior Court

Leonard B. and Mary Lou Buchanan,            June Term, 1994
Brattleboro Housing Authority,
Town of Brattleboro


Robert Grussing III, J.

William M. McCarty and Bruce Hesselbach of McCarty Law Offices,
 Brattleboro, for plaintiff-appellee

Allan R. Keyes, Martha M. Smyrski and John A. Serafino of Ryan
 Smith & Carbine, Ltd., Rutland, for defendant-appellant Town of Brattleboro

Deborah L. Markowitz, Montpelier, for amicus curiae Vermont League of Cities 
 and Towns


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


     GIBSON, J.   In a wrongful death action, defendant Town of Brattleboro
appeals from a jury verdict in favor of decedent's estate for compensatory
and punitive damages arising out of the Town's alleged failure to properly
inspect premises where decedent was killed in a fire.  Plaintiff
cross-appeals on the issue of the allocation of damages.  We reverse.     
In 1986, a third-floor apartment in Brattleboro inhabited by a
seven-year-old boy and his father was destroyed by a fire that started when
the father fell asleep while smoking a cigarette.  No smoke detectors had
been installed in the apartment, either by the tenant or the landlord. 

 

The father escaped with injuries, but his son died from smoke inhalation. 

     In 1984, the Town adopted the BOCA Building and Fire Prevention Codes,
which include provisions requiring the inspection of buildings and the
enforcement of orders to correct dangerous conditions.  The Town did not
conduct regular inspections of existing buildings, but enforced the codes
in response to complaints or as part of the process of granting new
building permits.  Shortly after the adoption of the BOCA codes, a Town
employee inspected the first-floor apartment of the building in question
for wiring, plumbing and sewer problems.  He noticed that there was no
smoke detector in the apartment, but limited his investigation to the scope
of the specific complaints.  According to the evidence, no further
complaints were ever received, and no additional inspection of the building
was ever conducted. 

     Steven McGuire and the child's mother, Rita Corbin, on behalf of the
estate of her son, sued the landlord, the Town, and the Brattleboro Housing
Authority, which subsidized the rents for the units.  The landlord and the
Housing Authority settled the case before trial.  The Town moved for
summary judgment, arguing that the Town's failure to enforce the BOCA codes
created no private right of action on behalf of plaintiffs.  The court
denied the Town's motion for summary judgment, ruling that local ordinances
created a duty to individual members of the public 

 

and that the violation of the local ordinance was a prima facie showing of
negligence.  The court also submitted the issue of punitive damages to the
jury on grounds that a finding that the Town was grossly negligent would be
sufficient for the award of such damages.  The jury awarded compensatory
and punitive damages, and the present appeal followed. 

     The central issue on appeal is whether an individual plaintiff may
recover in tort against a municipality for its failure to enforce an
ordinance whose purpose is protection of the public as a whole.  We hold
that no such action exists in Vermont under the applicable statute or
common law. 

     First, we note the absence in Vermont of any general inference of a
private action based on government regulations whose clear purpose is the
general welfare.  We reaffirmed this principle in Cronin v. State, 148 Vt.
252, 531 A.2d 929 (1987), overruled on other grounds by Libercent v.
Aldrich, 149 Vt. 76, 539 A.2d 981 (1987), wherein a state employee sued the
State and two of its employees for violation of a state personnel
department regulation prohibiting disclosure of confidential information. 
We held: 

   Even if we assume, without deciding, that the defendants' 
   conduct violated [the regulation], the violation of a statute or
   regulation does not in and of itself give rise to a private right 
   of action for damages. . . . In this case, the scope of the regulation, 
   combined with the existence of an administrative remedy for 
   violation of the regulation, convinces us that no private right of 
   action is created by the regulation.
   

   On its face, [the regulation] prohibits the disclosure of a broad 
   range of information obtained from any source by any state 
   employee subject to the regulation.  Thus, the very scope of the 
   regulation contradicts plaintiff's argument that it was promulgated 
   for his special benefit, leading us to the conclusion that the 
   regulation does not create a duty running from defendants to
   plaintiff.

Id. at 254-55, 531 A.2d  at 931 (emphasis added) (footnotes omitted)
(citations omitted).  Though Cronin involved a state regulation and state
defendants, its lesson is equally applicable to the municipal setting --
that no private cause of action exists in Vermont for failure to enforce a
regulation adopted to protect the public at large.  See also Denis Bail
Bonds, Inc. v. State, 159 Vt. 481, 489, 622 A.2d 495, 499-500 (1993) (any
duty of Department of Banking and Insurance 


to investigate insurance agents runs to general public, not to any class of
insurers).(FN1)

     The same rule has been adopted by most jurisdictions considering the
question.  See, e.g., Rich v. City of Mobile, 410 So. 2d 385, 387 (Ala.
1982) (no municipal liability for failure to inspect sewers that backed up,
causing damage); Leger v. Kelley, 116 A.2d 429, 432 (Conn. 1955) (motor
vehicle commissioner's duty to approve car registration only if car
equipped with safety glass is duty to general public and does not create a
private right of action for damages resulting from commissioner's alleged
breach of that duty); Trianon Park Condominium Ass'n v. City of Hialeah,
468 So. 2d 912, 922 (Fla. 1985) (city not liable in tort for failure to
inspect condominium, which suffered severe roof leakage); Hage v. Stade,
304 N.W.2d 283, 285 (Minn. 1981) (no cause of action for state's failure to
enforce proper safety measures at hotel); O'Connor v. City of New York, 447 N.E.2d 33, 34-35, 460 N.Y.S.2d 485, 486-87 (N.Y. 1983) (absent special
relationship creating duty of care for benefit of particular class, city
not liable for inspector's failure to discover gas leak that caused
explosion); Barratt v. Burlingham, 492 A.2d 1219, 1222 (R.I. 1985) (DUI
enforcement is intended to protect general public, and enforcement failure
does not result in private action against state); Georges v. Tudor, 556 P.2d 564, 566-67 (Wash. Ct. App. 1976) (no cause of action against city
resulted from allegedly negligent building inspection, absent special
relationship between city and individual). 

 

     In Trianon Park Condominium Ass'n, plaintiff property owners brought
suit against a municipality for its failure to discover building code
violations in the roof of their condominium building.  Plaintiffs claimed
that a state statute requiring municipalities to adopt and enforce building
codes created a duty of care toward the individual residents of the city. 
The court disagreed, holding that there was no common-law duty to
individual citizens for the enforcement of municipal codes, citing comment
(b) of the Restatement (Second) of Torts  288 (1964), which states: 

     Many legislative enactments and regulations are intended only for 
     the protection of the interests of the community as such, or of the
     public at large, rather than for the protection of any individual or 
     class of persons.  Such provisions create an obligation only to the 
     state, or to some subdivision of the state, such as a municipal
     corporation.  The standard of conduct required by such legislation 
     or regulation will therefore not be adopted by the court as the 
     standard of a reasonable man in a negligence action brought by the 
     individual.

468 So. 2d  at 917 n.3.  The court also reviewed the legislative provisions
and found that because the language of those provisions did not expressly
create a private cause of action, no such cause of action would be implied.
Further, the court stated: 


     To hold a governmental entity liable for carrying out this type of 
     enforcement activity would make the taxpayers of the enforcing 
     governmental entity insurers of all building construction within the 
     jurisdiction of the entity.  We conclude that such a result was 
     never intended by either the legislature or the city in enacting the
     building code provisions.

Id. at 915.

     Nor was such a result intended by the Vermont Legislature. The Town
adopted the BOCA codes pursuant to 24 V.S.A. Chapter 123, the language of
which makes clear that the legislative intent is to provide for the health
and safety of the general public: 

 

    5001. Legislative findings:

   The general assembly finds:

        (1) There exist in the various municipalities numerous dwellings 
     and dwelling premises which are substandard due to dilapidation, 
     deterioration and disrepair, structural defects, uncleanliness, lack 
     of adequate ventilation, light, sanitary, heating and hot water 
     facilities, overcrowding of dwellings, occupancy of unfit dwellings 
     and other conditions and defects which increase the hazards of 
     illness, disease, fire, accidents and other calamities;
    
        (2) These conditions, singly or in combination, endanger the 
     health, safety, morals and general welfare of the people of the 
     various municipalities and give impetus to the development, 
     continuation, extension and aggravation of blighted and 
     substandard housing conditions;
    
        (3) The establishment and maintenance of minimum standards 
     for dwellings is necessary to the protection of the public health,
     safety, morals and general welfare.

Section 5005 provides an administrative remedy for violation of any
ordinance enacted under the chapter, but nowhere in chapter 123 is there
any suggestion that the General Assembly intended to create a private civil
remedy.  The social, fiscal, tax, and public policy implications of a
statute creating a private right of action based on a town's adoption of
building code regulations would be enormous, and there is no indication in
this record that the Legislature contemplated any such consequences. 

     If allowed under its charter, the Town itself might have created a
private right of action, but again the words of the ordinance adopting the
codes imply no such intention.  The ordinance, incorporating  F-100.2 of
the BOCA Fire Prevention Code, expressly states that its purpose is to
provide for the safety of the public at large, and in incorporating 
F-102.6, it expressly prohibits a private cause of action against the Town.

 

     In denying the Town's directed verdict motion, the trial court
concluded that the ordinance's negation of any private remedy violated
public policy.  But the court does not explain its rationale.  The Town's
explicit bar to private actions would violate public policy only if it
contravened supervening Vermont law, such as a constitutional or statutory
mandate, or a common- law holding that such a right exists and cannot be
limited by municipal fiat.  But as we have already concluded that there is
no such controlling Vermont law, there is no public policy that the Town
ordinance contravenes.  As we have stated, the enabling statute is limited
to broad, public purposes and is not consistent with the inference of a
private action.  The common law does not allow conversion of the general
municipal duty of inspection into a private right of action. 

     Plaintiffs argued at trial that the Town's "affirmative conduct"
removed it from the protection of any general rule that a broad duty to
enforce the law does not create private rights, citing My Sister's Place v.
City of Burlington, 139 Vt. 602, 433 A.2d 275 (1981).  In that case,
however, the plaintiff began renovation of a building after a city fire
inspector erroneously advised that specific improvements would meet fire
code requirements.  We affirmed the trial court's ruling that the city was
estopped from disclaiming liability, based on its employee's indisputable
negligence in erroneously advising a particular member of the public about
the fire code and inducing reasonable reliance on that advice.  Id. at
609-10, 433 A.2d  at 279-80.   My Sister's Place falls far short of holding
that a general duty to enforce local codes creates a private cause of
action. 

     In the case at bar, the issuance of a certificate of occupancy to the
building in which the apartment in question was located neither induced
reliance on the part of any tenant that the 

 

Town warranted the building to be safe from fire, nor was the inspection of
another apartment in the building "affirmative conduct" as to the apartment
in which decedent died. 

     Finally, the rent control agreement between the Town and a building
owner did not create a "close relationship" between the Town and
plaintiffs.  The agreement had to do principally with rent levels, and
there is no merit in plaintiffs' contention at trial that, having
undertaken affirmative acts, the Town owed a duty to plaintiffs to
undertake further reasonable acts, namely to conduct safety inspections of
the apartment. 

     In light of our decision, we need not address the other issues raised
by the Town or the issues on the cross-appeal. 

     Reversed. 


                              FOR THE COURT:



                              _______________________________________
                              Associate  Justice


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                                 Footnotes


FN1.   Hudson v. Town of East Montpelier, ___ Vt. ___, 638 A.2d 561 (1993),
 cited by plaintiffs, dealt with the doctrine of qualified official
 immunity, not the pertinent issue here -- whether in the first instance the
 duty of inspection created individual rights, or ran generally to the
 public.