Baisley v. Missisquoi Cemetary Assoc.
Annotate this Case
Baisley v. Missisquoi Cemetery Assoc. (96-433); 167 Vt. 473; 708 A.2d 924
[Opinion Filed 23-Jan-1998]
[Motion for Reargument Denied 24-Mar-1998]
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. 96-433
Tammy Baisley, et al. Supreme Court
On Appeal from
v. Franklin Superior Court
Missisquoi Cemetery Association & June Term, 1997
Robert Young, Sr.
Linda Levitt, J.
Timothy J. Ryan of Brown, Cahill, Gawne & Miller, St. Albans, for
plaintiffs-appellants
Duncan Frey Kilmartin of Rexford & Kilmartin, Newport, for
defendants-appellees
PRESENT: Amestoy, C.J., Gibson, Dooley, Morse and Johnson, JJ.
DOOLEY, J. This wrongful death action was brought by the family and
estate of Craig Baisley, a five-year-old boy who fell from a tree onto a
metal spike fence, incurring injuries that resulted in his death. The
trial court granted summary judgment in favor of defendants Missisquoi
Cemetery Association (MCA) and its president, Robert Young, Sr., concluding
that Craig was a trespasser to whom defendants owed no duty of care. On
appeal, plaintiffs contend that the trial court erred in (1) holding that
defendants owed no duty of care to plaintiffs' decedent, (2) denying
partial summary judgment to plaintiffs on defendants' affirmative defenses,
(3) refusing to compel discovery of a statement by defendants' sole
employee against a claim of attorney-client privilege, and (4) barring
plaintiffs from interviewing defendants' sole employee outside the presence
of defendants' counsel. We hold that defendants owed a duty of ordinary
care to decedent, reverse the order of summary judgment on that issue, and
do not reach the availability of defendants' defenses. We affirm the
orders denying discovery and the opportunity to interview defendants'
employee without the presence of counsel.
On the afternoon of October 22, 1991, five-year-old Craig Baisley
followed his brother Jeffrey, Jr. and his friend Chris, both nine years
old, to play in and around a nearby cemetery owned by MCA. The two older
boys were working on a ground fort north of the cemetery on the other side
of some railroad tracks. While working on the ground fort, they noticed
the remnants of a tree house inside the cemetery. After entering the
cemetery and examining the tree house, they decided to build their own tree
house in another tree. They obtained a hammer from home and a ladder,
which was lying in the railroad right-of-way north of the cemetery,
apparently abandoned. They chose a tree that stood immediately outside the
cemetery, on land owned by neighbors Richard and Shelba Prive.
Between the cemetery grounds and the tree ran a metal fence along the
boundary of the cemetery land. The vertical bars of the fence were
pointed, or "spiked." The boys approached the fence and tree from inside
the cemetery and placed the ladder over the fence and against the tree,
enabling them to climb into the tree branches. The tree branch on which
Craig was standing broke, and he fell onto the spikes of the metal fence
impaling himself. He died shortly thereafter because of puncture wounds to
his heart and lungs.
Plaintiffs brought suit against MCA, its president, and the Prives,
alleging defendants were negligent in allowing the hazardous condition
caused by the tree and the fence. The Prives eventually settled and were
dismissed. The remaining defendants moved for summary judgment, and the
superior court granted the motion, holding that defendants owed decedent no
duty of care because decedent was a trespasser on cemetery association
land. Plaintiffs' challenge to this holding is the main issue in this
appeal. Plaintiffs also ask us to rule that the affirmative defenses
defendants have pled are not available, and grant plaintiffs partial
summary judgment striking these defenses.
Two other issues arose in discovery. Plaintiffs deposed the caretaker
of the cemetery, Raymond Revoir, who is MCA's sole employee. Revoir
testified that he had worked for the cemetery association for fifteen
years. He stated that he had previously seen children
playing in the cemetery and had told them to go home, that he had seen
remnants of an old tree house in the cemetery, and that he had seen a
ladder on the railroad right-of-way several days before the accident.
Plaintiffs' attorney asked Revoir if he had spoken with defendants'
attorney about the accident, to which Revoir answered affirmatively.
Defendants' attorney then asserted attorney-client privilege over the
conversation between him and Revoir. Plaintiffs moved for an order
directing Revoir to answer the question, but the court ruled that the
communication between Revoir and defendants' counsel was covered by MCA's
attorney-client privilege. Plaintiffs also moved to allow their counsel to
interview Revoir outside the presence of defendants' counsel, but the court
denied this motion on the basis that such an interview would be unethical.
I.
Plaintiffs claim that the trial court erred in granting summary
judgment to defendants based on its conclusion that decedent was an
undiscovered trespasser to whom defendants owed no duty of care. Summary
judgment is appropriate only where, taking the allegations of the nonmoving
party as true, it is evident that there exist no genuine issues of material
fact and the movant is entitled to judgment as a matter of law. See
Zukatis v. Perry, 165 Vt. 298, 300, 682 A.2d 964, 965 (1996).
To prove negligence, plaintiffs must show a duty of care on the part
of defendants, failure to perform that duty, and injury resulting from the
breach of that duty. See id. at 301, 682 A.2d at 966. The trial court
held that defendants owed no duty of care to plaintiffs because Craig was a
trespasser and granted defendants' motion for summary judgment on that
basis. In order to reverse the trial court, we must conclude that (1)
defendants owed a duty of care to plaintiffs, and (2) plaintiffs'
allegations make out a breach of that duty.
In Vermont, a landowner generally owes no duty of care to a
trespasser, except to avoid willful or wanton misconduct. See Buzzell v.
Jones, 151 Vt. 4, 6, 556 A.2d 106, 108 (1989); Hillier v. Noble, 142 Vt.
552, 556, 458 A.2d 1101, 1103 (1983). We have not adopted the
doctrine of attractive nuisance, so the absence of duty applies to both
adult and child trespassers. See Zukatis, 165 Vt. at 300-01, 682 A.2d at
965-66. Plaintiffs urge us to abandon this status-based approach to
landowner liability, see id. at 305, 682 A.2d at 968 (Dooley, J.,
dissenting) ("our law on landowner liability is in serious need of
reexamination"), and the parties have briefed the wisdom of our traditional
rule in detail, drawing on the many precedents from other states. Because
of the unique facts of this case, however, we need not address the vitality
of our landowner-liability rules.
Although Craig Baisley trespassed on the cemetery land to reach the
ladder, he used the ladder to climb into the branches of a tree that is
outside the cemetery on land belonging to the Prives. While in the tree,
he may have been a trespasser on Prive property, but that status is
irrelevant to defendants' duty of care. See Humphrey v. Twin State Gas &
Elec. Co., 100 Vt. 414, 418, 139 A. 440, 442 (1927). If he ever again
became a trespasser with respect to defendants, it was when he fell on the
fence and became impaled. The question before us, then, is whether contact
with a property boundary fence is a trespass such that the owner of the
fence has no duty of care to avoid injury from the contact. At least as we
have phrased the question, it appears to be one of first impression.
We note that the general statement of the no-duty-to-trespassers rule
does not appear to encompass this circumstance. Thus, the Restatement
defines a trespasser as one "who enters or remains upon land in the
possession of another" without consent or other privilege. Restatement
(Second) of Torts § 329 (1965) (emphasis supplied). Although the touching
of the fence may be said to be a technical entry, the real purpose of the
fence is to prevent entry onto the land.
We prefer to analyze the circumstance in relation to the reasons for
the no-duty rule. A number have been advanced: (1) the presence of a
trespasser on the land is not foreseeable, see Trudo v. Lazarus, 116 Vt.
221, 224-25, 73 A.2d 306, 308 (1950); (2) a duty of care would impose an
unreasonable burden on the use of land, see F. James, Jr., Tort Liability
of Occupiers of Land: Duties Owed to Trespassers, 63 Yale L.J. 144, 151
(1953); and (3) the trespasser is
a wrongdoer, see id. at 152; W. Keeton, et. al., Prosser & Keeton on the
Law of Torts § 58, at 394 (5th ed. 1984). To the extent these reasons
exist at all, they are greatly attenuated for a property boundary fence.
The fence is the landowner's face to the public and the users of adjoining
lands. It is hardly unexpectable that the fence will be touched; indeed,
the point of the fence is to allow contact to avoid an accidental entry
onto the land. If the person who touches a boundary fence is a trespasser,
it is only in the most technical sense. The burden of making a boundary
fence safe is not unreasonable. See Barr v. Green, 104 N.E. 619, 620 (N.Y.
1914).
Probably for these reasons, virtually all courts which have considered
tort liability cases involving a boundary fence have analyzed the
landowner's conduct under a duty of ordinary care, the duty applicable to a
person who is on abutting land. See Butterfield v. Community Light & Power
Co., 115 Vt. 23, 25, 49 A.2d 415, 416 (1946) (adopting prudent-person
standard for abutters). Thus, the New York Court of Appeals held in an
early case that "whether a person is liable for injuries arising from the
erection of a fence depends upon the ordinary principles . . . as to what
constitutes negligence." Barr, 104 N.E. at 620. In Barr, the defendant
erected a barbed-wire fence between his property and an adjoining
schoolyard. An eleven-year-old girl inadvertently ran into the fence, from
which she received lacerations on her neck. The court reversed summary
judgment, holding that the defendant could be held liable for negligence in
erecting the fence. See id.; see also Marton v. Jones, 186 P. 410, 411
(Cal. Ct. App. 1919) (negligence of defendant in maintaining barbed-wire
fence next to sidewalk gives rise to liability to pedestrian who slipped on
sidewalk and grabbed fence); Skaling v. Sheedy, 126 A. 721, 722 (Conn.
1924) (allowing negligence action where seven-year-old child was injured
when she fell off sled and into barbed-wire boundary fence); Cincinnati &
Hammond Spring Co. v. Brown, 69 N.E. 197, 198 (Ind. Ct. App. 1903) (where
child ran into defendant's barbed-wire boundary fence while playing, jury
could find that defendant was negligent and find liability); Kelly v.
Bennett, 19 A. 69, 70 (Pa. 1890) (analyzing on negligence principles case
in
which plaintiff slipped on sidewalk and grabbed defendant's fence for
balance, injuring hand on spike); Sheets v. Burleson, 488 S.W.2d 365, 366
(Tenn. 1972) (on similar facts, follows Kelly v. Bennett). But see Legg v.
Blanchfield, 841 P.2d 662, 663-64 (Or. Ct. App. 1992) (where child jumped
on top of wooden fence, which gave way because of force of contact, child
was trespasser and could recover, if at all, only under doctrine of
attractive nuisance).(FN1) Without considering whether to modify our
landowner liability rules generally, we conclude that defendants owed Craig
Baisley a duty of ordinary care. The duty of care defendants owed was to
"keep [their] property from becoming a source of danger to [those on
adjoining lands] . . . by reason of any defect either in construction, use,
or repair, so far as the exercise of the care of a prudent man can guard
against the same." Butterfield, 115 Vt. at 25, 49 A.2d at 416. In
applying the standard, we must consider the consequences that a prudent
person might have anticipated. See Forcier v. Grand Union Stores,
Inc., 128 Vt. 389, 393, 264 A.2d 796, 799 (1970). We must decide whether,
based on the evidence submitted in connection with the motion for summary
judgment, the jury could find that defendants breached their duty.
Where there is no "settled . . . rule of diligence," negligence is
ordinarily a question for the jury. LaFaso v. LaFaso, 126 Vt. 90, 96, 223 A.2d 814, 819 (1966). The requirements of the prudent person rule vary
with the circumstances so each case must be decided on its own facts. See
id. at 94, 223 A.2d at 818; see also Lavallee v. Pratt, 122 Vt. 90, 94, 166 A.2d 195, 198 (1960) ("Liability in negligence does not lend itself to
exact definition or patterns of behavior that may have predominated at an
earlier misadventure.").
A number of factors suggest that the jury could find a breach of
defendants' duty in this case. The cemetery gates were open, and children
were known to play in and around the cemetery. The fence spikes were
dangerous to anyone who came in contact with them, yet they no longer
fulfilled the purpose of keeping persons out of the cemetery. Defendants'
caretaker knew of the dangerousness of the fence, the fact that the tree
overhung the fence, and the presence of another tree house structure in one
of the trees in the cemetery. In dealing with children, defendants' duty
had to include consideration of their "inability to protect themselves, and
. . . their childish indiscretions, instincts and impulses." LaFaso, 126
Vt. at 96, 223 A.2d at 819.
Based on the undisputed material facts before the court on the summary
judgment motion, and the inferences that could be drawn from them in
plaintiffs' favor, we conclude that a jury could find that the accident was
foreseeable from the conditions known to defendants or their employee. We
also conclude that a jury could find that a prudent landowner in
defendants' position should have taken precautions to avoid the accident.
See Trobiani v. Racienda, 238 N.E.2d 177, 179 (Ill. App. Ct. 1968) (ladder
over open stairwell could constitute dangerous condition as to
four-year-old plaintiff); Smith v. Springman Lumber Co., 191 N.E.2d 256,
258 (Ill. App. Ct. 1963) (tree and oil tank together created dangerous
agency likely to cause injury
to children); Cincinnati & Hammond Spring Co., 69 N.E. at 198 (where
defendant maintained ruined barbed-wire fence in area where children
played, liability was properly left to jury); Barr, 104 N.E. at 620 (where
landowner put up barbed-wire fence in area frequented by children, it was
for jury to decide whether an ordinarily prudent person would have foreseen
that it might cause injury through contact with it); Schaut v. Borough of
St. Mary's, 14 A.2d 583, 585 (Pa. Super. Ct. 1940) (where pedestrian
slipped on sidewalk and was impaled on stakes placed in grass of adjoining
landowner, liability was for jury). The trial court erred in granting
defendants summary judgment on liability.
II.
Plaintiffs' second claim is that the trial court erred when it denied
their motion for partial summary judgment on defendants' affirmative
defenses of contributory negligence, assumption of risk, and efficient
intervening cause. A review of the record reveals that the trial court,
having granted summary judgment to defendants MCA and Young, ruled on the
motion for partial summary judgment only as it applied to defendants
Richard and Shelba Prive, who are no longer parties to this action.
Because the court did not decide this issue as it applied to defendants MCA
and Young, the matter is not properly before us, and we decline to address
it.
III.
Plaintiffs' third claim requires us to define the scope of the
lawyer-client privilege in the corporate context. Plaintiffs seek to
discover the contents of statements made by the cemetery caretaker and
MCA's only employee, Raymond Revoir, to defendants' attorney. Defendants
assert that the statements are privileged lawyer-client communications.
According to defendants, the caretaker is a "representative of the client,"
whose communications are privileged under the Vermont Rules of Evidence.
See V.R.E. 502(a)(2) (Supp. 1996) (defining "representative of the
client"). We agree that the communications are privileged.
Courts have recognized the confidentiality of lawyer-client
communications for centuries. See M. Waldman, Beyond Upjohn: The
Attorney-Client Privilege in the Corporate Context, 28
Wm. & Mary L. Rev. 473, 475 (1987). In the modern era, the privilege is
"seen to rest on the utilitarian theory that encouraging clients to make
the fullest disclosure to their attorneys enables attorneys to act more
effectively, justly, and expeditiously, and that these benefits outweigh
the risks posed by barring full revelation in court." 3 Weinstein's
Federal Evidence § 503.03[1], at 503-09 (J. McLaughlin ed., 2d ed. 1997);
see also Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (Court
recognized that purpose of privilege is to encourage clients to make full
disclosure to their attorneys).
The lawyer-client privilege extends to corporations and other
organizations. V.R.E. 502(a)(1) (client includes "person, public officer,
or corporation, association, or other organization or entity, either public
or private"). The scope of the privilege in the corporate context has,
however, invoked considerable debate, "calling into question the values the
privilege serves." 3 Weinstein, supra § 503.03[3], at 503-11. Interpreted
in its broadest sense, the attorney-client privilege would create a vast
zone of silence around corporate affairs. Thus, courts have struggled to
answer: who speaks for the client when the client is an organization?
As originally adopted, our lawyer-client privilege rule did not define
who was to be considered a representative of a corporate client for
purposes of the privilege. See Reporter's Notes, V.R.E. 502. By omitting
a definition of "representative of the client," the rule adopted the
approach of Upjohn Co. v. United States, leaving the issue to case law
development. See 449 U.S. at 396-97.
Effective January 1, 1994, the Legislature enacted a lawyer-client
privilege statute in order to define the representative of the client for a
corporation. The statute restricts the privilege to communications with
such representatives in two categories: (a) communications with a member of
the corporate "control group . . ., acting in his or her official
capacity"; and (b) communications with a person who is not a member of the
control group "to the extent necessary to effectuate legal representation
of the corporation." 12 V.S.A. § 1613. The "control group" includes (1)
"officers and directors of a corporation," and (2) persons who (a)
"have the authority to control or substantially participate in a decision"
taken on advice of the lawyer, or (b) "have the authority to obtain
professional legal services or to act on advice rendered pursuant thereto,
on behalf of the corporation." Id. § 1613(1), (2). The act in which the
privilege statute appears is entitled "An Act Relating to Business
Corporations," and applies to corporations in existence on January 1, 1994
"that were incorporated under any general statute of this state relating to
incorporation of corporations for profit" if the Legislature reserved the
power to amend or repeal the statute under which the corporation was
incorporated. 1993, No. 85, § 4(a).
In 1995, this Court added the following definition of "representative
of the client" to the rule of evidence concerning lawyer-client privilege:
A "representative of the client" is (A) a person having authority to
obtain professional legal services or act on advice rendered pursuant
thereto, on behalf of the client, or (B) any other person who, while acting
in the scope of employment for the client, makes or receives a confidential
communication necessary to effectuate legal representation for the client.
V.R.E. 502(a)(2) (Supp. 1996) (emphasis added). The rule was amended to
correspond with the new statute, 12 V.S.A. § 1613. See Reporter's Notes --
1995 Amendment to V.R.E. 502(a)(2). Although the rule is intended to
produce the same result as the statute, the drafting is taken from Rule
502(a)(2) of the Uniform Rules of Evidence, which was modified in 1986 to
"bring the rule into conformity with Upjohn Co. v. United States." 13A
U.L.A. Uniform Rules of Evidence (amended 1986), Prefatory Note to 1986
Amendments, 13 U.L.A. 6 (1994).
Plaintiffs argue that the attorney-client privilege should extend only
to the control group of MCA and that Raymond Revoir, the cemetery
caretaker, does not fit in that category. Defendants argue that under
V.R.E. 502(a)(2)(B) Raymond Revoir was a representative of the lawyer's
client, MCA, because he made a confidential communication necessary for the
lawyer to represent MCA.
Defendants acknowledge that the communication between Raymond Revoir
and their counsel occurred prior to January 1, 1994, the effective date of
the privilege statute. The
deposition in which the issue arose occurred in August of 1994, after the
effective date of the statute, but before the adoption of the amendment to
Rule 502. Thus, unless the statute and subsequent rule amendment made no
critical change in the law, we must decide whether either or both apply to
a communication that occurred before either was effective.(FN2) We conclude
that neither the statute nor the rule amendment changed the law such as to
change the outcome of this case.
Under the original version of Rule 502, plaintiffs can prevail only if
(1) the rule is interpreted to limit the privilege to the control group of
a corporation or association, or (2) the rule is not so limited, but it
nevertheless does not cover the caretaker. We begin by examining the
"control group" test.
Prior to the United States Supreme Court decision in Upjohn Co., many
of the federal courts adopted the control-group test and used a definition
of "control group" similar to that contained in 12 V.S.A. § 1613. See
Waldman, supra, 28 Wm. & Mary L. Rev. at 481-82. Upjohn rejected the
control-group test as too limited, primarily because it "overlooks the fact
that the privilege exists to protect not only the giving of professional
advice to those who can act on it but also the giving of information to the
lawyer to enable him to give sound and informed advice." 449 U.S. at 390.
The Court noted that the information needed by the lawyer will frequently
come from employees outside the control group. The Court also criticized
the
test because it "threatens to limit the valuable efforts of corporate
counsel to ensure their client's compliance with the law" by not covering
advice to employees who must implement the law, and because it was too
uncertain to give lawyers and corporation employees guidance on when their
communications would be protected from disclosure. Id. at 392-93. The
Court held that the privilege covered responses to a questionnaire sent by
Upjohn's counsel to all managers of foreign offices covering payments made
to foreign government officials to secure government business. See id. at
396-97.
Following Upjohn, two tests have emerged to define the client in the
corporate context: the subject-matter test, and the modified subject-matter
test. The subject-matter test takes a broad -- and more functional --
approach to attorney-client privilege by focusing on the content of the
communication rather than the identity of the speaker. Under the
subject-matter test, an employee's communication is privileged if the
employee makes a statement to a lawyer at the direction of his or her
superiors and the subject matter of the statement concerns "the performance
by the employee of the duties of his employment." Harper & Row Publishers,
Inc. v. Decker, 423 F.2d 487, 492 (7th Cir. 1970), aff'd by an equally
divided court, 400 U.S. 348, reh'g denied, 401 U.S. 950 (1971).
The modified subject-matter test limits the lawyer-client privilege to
those communications made "for the purpose of obtaining legal services or
advice." Diversified Industries, Inc. v. Meredith, 572 F.2d 596, 602 (8th
Cir. 1977). Thus, combining Harper & Row and Diversified Industries, a
communication is protected under the modified subject-matter approach only
if:
(1) the communication would not have been made but for the
contemplation of legal services;
(2) the employee making the communication did so at the direction of
his or her corporate superior;
(3) the superior made the request of the employee as part of the
corporation's effort to secure legal advice or services;
(4) the content of the communication relates to the legal services
being rendered, and the subject matter of the communication is
within the scope of the employee's duties; and
(5) the communication is not disseminated beyond those persons who,
because of the corporate structure, need to know its contents.
Southern Bell Tel. & Tel. Co. v. Deason, 632 So. 2d 1377, 1383 (Fla. 1994).
We agree with Upjohn that the control-group test is too limited to
implement fully the attorney-client privilege in the corporate or
association setting. Thus, we hold that the original version of Rule 502
protected communications beyond those between the lawyer for the
corporation or association and the control group of that corporation or
association.
We need go no further in our analysis. Although, at the outset, we
acknowledged the logical possibility that plaintiffs could prevail under
some alternative to the control-group test, there is no alternative that
would leave the communications with the caretaker outside the privilege.
The communications between the caretaker and defendants' lawyer were
necessary for the lawyer to represent defendants. As our discussion of the
merits highlights, the action or inaction of the caretaker, the only
employee of MCA, were at the center of this litigation. No matter what
addition or alternative to the control-group test we may have adopted, it
would have covered communications with MCA's caretaker connected with this
litigation. These communications met all the elements of the
subject-matter or modified subject-matter tests.
If anything, the statute, 12 V.S.A. § 1613, and the amendment to Rule
502 increase the scope of the privilege in the corporate or association
setting. Thus, they made no changes in the law that would help plaintiffs.
Whether we view the privilege issue under the original version of Rule 502,
the amended version or the recent statute, the communications between
defendants' lawyer and Raymond Revoir were covered by MCA's attorney-client
privilege. The court was correct in denying plaintiffs' motion to direct
Mr. Revoir to disclose the contents of these communications.
IV.
Finally, plaintiffs seek to interview Raymond Revoir outside the
presence of defendants' attorney. Defendants respond that it would be
unethical for plaintiffs' counsel to conduct the
interview because Revoir is a "party" within the meaning of Disciplinary
Rule 7-104(A)(1) of the Code of Professional Responsibility, which
proscribes ex parte contact with represented parties. The trial court
agreed with defendants and denied plaintiffs' motion to allow ex parte
contact with Revoir.
Rule 7-104(A)(1) provides as follows:
During the course of his representation of a client a lawyer shall
not:
(1) Communicate or cause another to communicate on the subject of
the representation with a party he knows to be represented by a
lawyer in that matter unless he has the prior consent of the lawyer
representing such other party or is authorized by law to do so.
The purpose of the no-contact rule is to prevent adverse counsel from
taking advantage of a represented party. See generally S. Sinaiko, Ex
Parte Communication and the Corporate Adversary: A New Approach, 66 N.Y.U.
L. Rev. 1456, 1463-76 (1991). The rule "shields the opposing party not
only from an attorney's approaches which are intentionally improper, but,
in addition, from approaches which are well intended but misguided."
Mitton v. State Bar, 455 P.2d 753, 758 (Cal. 1969). In the absence of
counsel, a client may unwittingly make statements that do not accurately or
fairly represent the client's position; these statements could later be
used against the client as admissions. See V.R.E. 801(d)(2)(D).
Like the lawyer-client privilege, the benefits of the no-contact rule
are achieved at a cost. A broad proscription on contacting the employees
of an adversary hinders the ability of a lawyer to gather and confirm
information, to develop an accurate picture of the case, and to advance
legal theories. See C. Schaefer, A Suggested Interpretation of Vermont's
DR 7-104(A)(1): The Employment Attorney's Perspective on Contacting
Employees of an Adverse Business Organization, 18 Vt. L. Rev. 95, 106-07
(1993). The no-contact rule is meant to protect the client against
overreaching, not the disclosure of prejudicial facts. See Neisig v. Team
I, 558 N.E.2d 1030, 1034 (N.Y. 1990) (no-contact rule does not immunize
underlying factual
information from disclosure to adversary). In defining the scope of the
rule, we are therefore mindful of both its costs and its benefits.
In recent years, courts have adopted four approaches to the no-contact
rule as it applies to corporations: a blanket ban on all employee
communications, a control-group ban, an alter ego test, and a balancing
test. See generally Schaefer, supra, at 112-24; Sinaiko, supra, at
1481-93. The blanket rule prohibits contact with all employees of the
corporate adversary. See Public Serv. Elec. & Gas Co. v. Associated Elec.
& Gas Ins. Servs., Ltd., 745 F. Supp. 1037, 1039 (D.N.J. 1990) (adopting
blanket prohibition on any informal contacts with former employees). The
control-group test is similar to that discussed above in connection with
defendants' privilege claim, and covers the fewest corporate employees or
officials. See Fair Automotive Repair, Inc. v. Car-X Serv. Systems, Inc.,
471 N.E.2d 554, 561 (Ill. App. Ct. 1984) (adopting control-group test).
These two tests represent the extremes currently in use.
The other two tests lie between the extremes. The alter ego test
targets those employees whose statements or acts may bind the corporation
as well as those employees who are members of the corporation's control
group. As formulated in Neisig, the definition of "party" under the alter
ego test includes "corporate employees whose acts or omissions in the
matter under inquiry are binding on the corporation . . . or imputed to the
corporation for purposes of its liability, or employees implementing the
advice of counsel." 559 N.Y.S.2d at 498. A number of courts have recently
adopted this approach. See State v. CIBA-GEIGY Corp., 589 A.2d 180, 186
(N.J. Super. Ct. App. Div. 1991) (adopting alter ego test); Fulton v. Lane,
829 P.2d 959, 960 (Okla. 1992) (no-contact rule applies to those employees
who have legal authority to bind corporation); Strawser v. Exxon Co,
U.S.A., 843 P.2d 613, 621 (Wyo. 1992) (adopting alter ego test).
By contrast, the balancing test weighs (1) whether the employee's
statements are likely to be admissible against the employer, (2) the
employer's need to have counsel present in the particular circumstances of
the case, and (3) the plaintiff's need for informal discovery. See
Mompoint v. Lotus Dev. Corp., 110 F.R.D. 414, 418-19 (D. Mass. 1986). In
Mompoint, the plaintiff, who brought an employment discrimination suit
against the defendant, claimed that the defendant's asserted reason for the
plaintiff's termination -- that the plaintiff sexually harassed female
employees -- was pretextual. See id. at 415. Although the female
employees' statements were likely to be admissible against the employer,
the court found that employer's need to have counsel present was minimal
because the employer would probably have its own records of the alleged
harassment. See Id. at 418-19. On the other hand, the plaintiff's lawyer
would have difficulty gathering evidence and assessing the strength of the
plaintiff's case without free and open discussion with the female
employees. See id. at 419. The court therefore allowed the plaintiff's
lawyer to interview the female employees out of the presence of the
defendant's counsel. See id.; see also Curley v. Cumberland Farms, Inc.,
134 F.R.D. 77, 82 (D.N.J. 1991) (balancing needs of plaintiff against those
of defendant and allowing ex parte contact with former employees of
defendant); Frey v. Department of Health & Human Servs., 106 F.R.D. 32, 36
(E.D.N.Y. 1985) (applying balancing test).
We reject both of the extremes. The blanket ban unnecessarily
prevents all informal discovery from corporate employees. Its only
strength is its simplicity. On the other hand, the control-group test is
difficult to apply and disregards the ability of low-level employees to
bind the corporation.
As with the attorney-client privilege issue, we need not make a more
specific policy choice. Under any alternative to the blanket ban, Revoir
is a "party" for purposes of the no-contact rule. DR 7-104(A)(1). As we
have previously observed, Revoir's statements are likely to be admissible
against his employer pursuant to V.R.E. 801(d)(2)(D). In addition,
defendants' lawyer needs to know what Revoir says to plaintiffs' lawyers in
order to prepare their defense. Plaintiffs do not need informal access to
Revoir in order to prepare their case; the number of witnesses is small and
plaintiffs have been able to gather the underlying factual information
necessary to bring suit. We therefore affirm the trial court's denial of
plaintiffs' motion to interview Revoir outside the presence of defendants'
attorney.
Summary judgment for defendants is reversed and cause is remanded for
further proceedings consistent with this opinion; affirmed in all other
respects.
FOR THE COURT:
_______________________________________
Associate Justice
----------------------------------------------------------------------------
Footnotes
FN1. In three other categories of cases, courts have found a duty
without addressing the issue before us. In one category, the courts found
that the result would be the same whatever the relevant standard of care.
See Jones v. Hernandez, 263 N.E.2d 759, 764 (Ind. Ct. App. 1970) (whatever
plaintiff's status, liability attaches when defendant's fence has been
connected to 110 volt electric outlet and plaintiff contacts it); Noyes v.
Carr, 117 N.E. 350, 351 (Mass. 1917) (no liability where pedestrian injured
hand when she slipped on sidewalk and grabbed defendant's fence).
In another, the plaintiff was not considered a trespasser because the
contact was inadvertent. See Ryder v. Robinson, 107 N.E.2d 803, 804-05
(Mass. 1952) (where fence fell on plaintiff child after being struck with
rock, jury could believe contact with fence was inadvertent and not a
trespass); Paine v. Hampton Beach Improvement Co., 100 A.2d 906, 910 (N.H.
1953) (where plaintiff fell down on defendant's land on drop-off next to
public sidewalk, plaintiff would not be considered trespasser because entry
onto defendant's land was involuntary or accidental). These decisions do
not help plaintiff in this case because, following the Restatement rule, we
have held that a person is a trespasser even if the entry on land was
inadvertent. See Trudo v. Lazarus, 116 Vt. 221, 224, 73 A.2d 306, 308
(1950); Restatement (Second) of Torts § 329, cmt. c. (1965).
In the third, an applicable statute provided the duty. See Durgin v.
Kennett, 29 A. 414, 414 (N.H. 1893). In Durgin, the fence statute required
an owner of adjoining lands to build and keep in repair a partition fence
and specified that the landowner would be liable for damages arising from
neglect of this duty. We have a similar statute, see 24 V.S.A. § 3808, and
although it is inapplicable to this case, it is a relevant legislative
policy statement about the proper burden to be placed on landowners for
damages caused by fences.
FN2. It does not appear that the privilege statute applies to this
case at all. To the extent a cemetery association is organized as a
corporation, see 18 V.S.A. § 5431 (cemetery associations established after
June 1, 1933 are organized as corporations), it is organized as a
not-for-profit corporation, see id. § 5432. The privilege statute applies
only to business, or for-profit, corporations.
The rule is broader and clearly applies to a cemetery association.
See Reporter's Notes to V.R.E. 502 (rule covers "every conceivable public
or private individual or entity that might seek or obtain legal services").
Rule amendments apply to actions pending on the date of the amendment
"except to the extent that in the opinion of the court their application in
a particular action pending when they take effect would not be feasible or
would work injustice, in which event the former rule or evidentiary
principle applies." V.R.E. 1102(b). The parties have not addressed this
standard, and we need not decide how we would apply it in this case.
---------------------------------------------------------------------------
Dissenting
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. 96-433
Tammy Baisley, et al. Supreme Court
On Appeal from
v. Franklin Superior Court
Missisquoi Cemetery Association & June Term, 1997
Robert Young, Sr.
Linda Levitt, J.
Timothy J. Ryan of Brown, Cahill, Gawne & Miller, St. Albans, for
plaintiffs-appellants
Duncan Frey Kilmartin of Rexford & Kilmartin, Newport, for
defendants-appellees
PRESENT: Amestoy, C.J., Gibson, Dooley, Morse and Johnson, JJ.
JOHNSON, J., dissenting. According to the majority, the Missisquoi
Cemetery Association and its president may be held liable for failing to
anticipate and prevent three boys from discovering a ladder in an old
railroad bed off cemetery grounds, hauling the ladder across the grounds,
positioning it over the cemetery's fence and against an otherwise
unclimbable tree located on neighboring property adjoining the cemetery,
scaling the ladder and hammering on a branch overhanging the fence in an
effort to build a tree fort, and causing the branch to break, resulting in
one of the boys falling and becoming impaled upon the fence. I do not
agree that liability may be imposed on defendants for not anticipating this
tragic but unforeseeable accident, particularly considering that neither
the president of the Association nor the cemetery's caretaker ever saw any
children climbing trees or building tree forts on cemetery grounds during
the preceding fifteen years. I would hold as a matter of law that, viewing
the undisputed material facts in a light most favorable to plaintiffs, a
reasonable jury could not conclude that the cemetery breached any duty owed
to the decedent or the plaintiffs under the facts and
circumstances of this case; accordingly, I would affirm the superior
court's order granting summary judgment in favor of defendants. On all
other issues, I join the majority's opinion.
The majority's analysis in this case is faulty in several respects.
First, the boys were plainly trespassers on cemetery property when the
accident occurred. In the majority's view, because the decedent fell from
a tree located just outside the cemetery, the boys were not trespassers.
This conclusion ignores the undisputed facts that the boys brought a ladder
onto cemetery property and placed the foot of the ladder on cemetery land
as a means of climbing the tree, and that the decedent had climbed out onto
a branch overhanging cemetery property at the time he fell on top of the
fence, which the cemetery owned. Given these facts, the boys were
trespassers under any common-sense definition of the term, including the
Restatement definition accepted by the majority: a trespasser is one "who
enters or remains" upon another's land without consent or privilege.
Restatement (Second) of Torts § 329 (1965) (emphasis added). The instant
case is very different from the cases cited by the majority, wherein
persons who had never entered the defendants' property were injured after
running into or falling against the defendants' fence.
Although I differ with the majority's conclusion that the boys were
not trespassers, I agree that we need not address questions such as whether
to abandon status classifications in landowner-liability law, whether to
adopt an attractive-nuisance doctrine, or whether to apply any exceptions
to the willful-and-wanton standard for trespassers under the circumstances
of this case. In short, I concur with the majority's conclusion that we can
assume that defendants owed decedent and plaintiffs a duty of ordinary care
with respect to any dangerous conditions on cemetery property. In my view,
however, even applying the reasonable-care standard, defendants are
entitled to judgment as a matter of law.
This conclusion is consistent not only with our case law but also with
the dated cases cited by the majority in support of its position. Although
the issue of whether a defendant breached a duty of ordinary care is
normally a question for the jury, a court can decide the issue
as a matter of law when the material facts are undisputed and only one
reasonable inference can be drawn therefrom. See LaFaso v. LaFaso, 126 Vt.
90, 96, 223 A.2d 814, 819 (1966); Restatement (Second) of Torts § 328B
(courts reserve power to make preliminary determination of whether evidence
will permit reasonable jury to come to more than one conclusion; where
evidence makes it clear that defendant has or has not conformed to
applicable standard of care, and that no reasonable jury could reach
contrary conclusion, court must withdraw issue from jury).
As the majority acknowledges, the ultimate question in determining
whether actionable negligence exists is whether the harm was foreseeable.
See LaFaso, 126 Vt. at 93-94, 223 A.2d at 817-18 (foresight of harm lies at
foundation of negligence; actionable negligence is made out only when it
appears that prudent person, in like circumstances, should have reasonably
anticipated harm); Pion v. Southern New England Tel., 691 A.2d 1107, 1110
(Conn. App. Ct. 1997) (ultimate test is whether reasonable person in
defendant's position, knowing what defendant knew or should have known,
would anticipate that harm suffered was likely to result; if reasonable
person in defendant's position could not foresee that type of harm alleged
would result from defendant's acts or omissions, plaintiff cannot maintain
cause of action). "Simply put, defendant can be found liable only if he
has failed to take steps that a reasonable person would take under like
circumstances." Zukatis v. Perry, 165 Vt. 298, 302, 682 A.2d 964, 967
(1996). The mere possibility of harm is not enough to satisfy the
foreseeability test. See Pion, 691 A.2d at 1110.
In LaFaso, this Court refused to hold as a matter of law that a
grandfather's gift of a functioning but fluidless lighter to his
three-and-one-half-year-old grandson was not actionable negligence;
according to the Court, because reasonable minds might differ on whether
the grandfather acted negligently, the jury should decide the issue. See
126 Vt. at 96, 223 A.2d at 819. Similarly, in the cases cited by the
majority, courts concluded that the following actions created a jury
question as to the defendants' liability: placing a ladder over an open
stairwell in
a building at a construction site frequented by children, including the
four-year-old plaintiff, see Trobiani v. Racienda, 238 N.E.2d 177, 179
(Ill. App. Ct. 1968); allowing young children to play on an abandoned oil
tank and use the tank to climb a nearby tree, see Smith v. Springman Lumber
Co., 191 N.E.2d 256, 257, 258 (Ill. App. Ct. 1963); leaving the remnants of
a barbed-wire fence in an area known to be frequented by children, see
Cincinnati & H. Spring Co. v. Brown, 69 N.E. 197, 197, 198 (Ind. Ct. App.
1903); stringing barbed wire on land frequented by children from the
adjoining school yard, see Barr v. Green, 104 N.E. 619, 620 (N.Y. 1914);
placing one-foot-high flanged stakes in the ground four inches from a
public sidewalk), see Schaut v. Borough of St. Mary's, 14 A.2d 583, 584,
585 (Pa. Super. Ct. 1940).
I agree that the defendants' actions in each of the above cases
created a jury question as to whether the defendants had breached their
duty of ordinary care to the plaintiffs. But in each of those cases the
harm suffered was reasonably foreseeable, not merely remotely possible.
Courts, including this Court, have not hesitated to grant summary judgment,
or even judgment on the pleadings, in favor of defendants who could not
have reasonably foreseen the harm suffered by the plaintiffs. For example,
in Zukatis, 165 Vt. at 302-03, 682 A.2d at 966-67, we affirmed the trial
court's judgment on the pleadings in favor of defendants accused of failing
to prevent a three-year-old child from crawling under their inactivated
electric fence and into their pasture, where the child was kicked by their
horse. We concluded that the plaintiffs failed to allege facts
demonstrating that the defendants had acted negligently or "that the
potential for young children to enter harm's way was substantial enough to
warrant `child-proofing' the pasture." Id. at 303, 682 A.2d at 967; see
also Pion, 691 A.2d at 1111 (trial court properly granted summary judgment
in favor of defendant telephone company accused of placing repeater box on
telephone pole in such close proximity to road as to create hazard to
bicyclists straying from road; trial court was correct in determining as
matter of law that defendant could not reasonably foresee possibility of
accident, and that even if such possibility existed, it was too remote to
create duty in defendant); Foreman v. Consolidated Rail Corp., 574 N.E.2d 178, 182-83
(Ill. App. Ct. 1991) (trial court properly granted judgment on pleadings to
defendant railroad company accused of failing to fence area that adjoined
railway line and that was known to be frequented by children; existence of
path used by children and absence of fence was not enough for reasonable
jury to conclude that company should have foreseen that eleven-year-old
child would attempt to climb onto moving freight train).
Here, by allowing plaintiffs to proceed against defendants under the
facts and circumstances of this case, the majority is, in effect, requiring
the Association to child-proof its cemetery, an impossible task. The
majority contends that a reasonable jury could find that the accident was
foreseeable, and thus that the Association should have taken precautionary
steps to avoid the accident, because (1) the cemetery gates were open, and
children were known to play in and around the cemetery; (2) the fence
spikes were dangerous to anyone who came in contact with them, and yet they
no longer fulfilled their purpose of keeping persons out of the cemetery;
and (3) defendants' caretaker knew that the cemetery fence was dangerous,
that the tree from which decedent fell had branches overhanging the fence,
and that there was a tree-house structure in a different tree located on
cemetery grounds.
Some of these factors relied on by the majority are either irrelevant
or insupportable by the undisputed facts of the case; the remaining ones
are insufficient to create liability on the part of the Cemetery
Association or its president. The cemetery gates were open simply because
the cemetery was open to the public. Although defendants were aware that
children often rode their bikes through the cemetery and occasionally
played in and around the cemetery grounds, the undisputed facts are that
the caretaker never saw any children climbing trees or building tree forts
in or around the cemetery, and none of the boys involved in the accident
had ever climbed trees or built tree forts in or around the cemetery. The
fact that the cemetery was unable to keep out unwanted visitors does not
make them liable for the accident.
In determining that this case presents a jury question on negligence,
the majority relies principally on the claim that the caretaker, who is not
even a defendant in the action, knew that
the fence was dangerous, that the tree from which the decedent fell
overhung the fence, and that a tree-house structure was present in another
tree in the cemetery. First, there are no facts demonstrating that the
caretaker knew the fence was dangerous. When asked if anyone had been
injured by contact with the fence in the past, the caretaker, who had been
at the cemetery over fifteen years, testified that as far as he knew the
boy was the first one. In response to interrogatories, the Association
stated that it had heard a rumor that on one occasion the gravedigger's son
may have injured himself climbing over the fence while helping his father.
The president of the Association acknowledged that the four-foot fence
would pose a danger to anyone foolish enough to straddle it, but that it
was too high for an adult, let alone a child, to attempt such a feat. The
decedent's nine-year-old brother testified that he had never attempted to
climb the fence. None of these facts demonstrate that the Association
could have foreseen that children too small to otherwise be injured by the
fence could become impaled on it by falling out of trees on neighboring
property adjoining the fence.
Second, the caretaker may well have known that trees on neighboring
property had branches overhanging the fence, but there is no evidence that
any of these trees had branches low enough to reach without the aid of a
ladder. Indeed, the lowest branches in the tree in question, as the
exhibits demonstrate, were several feet above the top of the fence and
impossible to reach without a ladder.
Third, although the caretaker was aware that some old boards had been
left in one of the trees in the cemetery, he testified that the boards had
been there undisturbed for at least the fifteen years he had worked for the
Cemetery Association. The decedent's brother testified that the structure
had no walls or ceiling, but merely a few floor boards.
Finally, two or three days before the accident, the caretaker saw an
abandoned ladder lying in an old railroad bed located off cemetery grounds,
but thought nothing of it. According to him, different articles were left
there from time to time.
From these facts, plaintiffs contend, and the majority agrees, that
although there had been
no problem in the past with children climbing trees or building tree forts
in or around the cemetery, the Cemetery Association should have anticipated
that children would see the old boards left in a cemetery tree, get the
idea to build a tree fort, discover an abandoned ladder off cemetery
grounds, haul the ladder across the cemetery and use it to climb an
otherwise unscalable tree that was not on cemetery property but that had
branches overhanging a fence too high to straddle, and then injure
themselves by falling out of the tree onto the fence. They ask too much
from reasonable minds. The tragic accident that led to this lawsuit was
the result of a bizarre sequence of events whose likelihood of occurring
was so remote that the Association cannot be held liable for failing to
anticipate it. If the Cemetery Association can be held liable under the
instant circumstances, there are thousands of other landowners in Vermont
who will be hard-pressed to assure that they will not be susceptible to
future lawsuits for failing to child-proof their property.
_______________________________________
Associate Justice
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