Gero v. J.W.J. Realty

Gero v. J.W.J. Realty (99-045); 171 Vt. 57; 757 A.2d 475 

[Filed 16-Jun-2000]


       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. 99-045


Robert and Maryanne Gero	                 Supreme Court

                                                 On Appeal from
     v.	                                         Chittenden Superior Court


J.W.J. Realty, et al.	                         January Term, 2000


Matthew I. Katz, J.

James M. Dingley of Dingley & Powell, P.C., Burlington, and Michael Rose, 
  St. Albans, for Plaintiffs-Appellants.

Stephen D. Ellis of Kiel & Ellis, Springfield, for Defendant-Appellee J.W.J. 
  Realty.

Pietro J. Lynn and Craig S. Nolan of Dinse, Knapp & McAndrew, P.C., Burlington, 
  for Defendant-Appellee Wiemann-Lamphere.


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


       AMESTOY, C.J.   Plaintiffs Robert and Maryanne Gero (FN1) appeal a
  Chittenden  Superior Court order granting defendants J.W.J. Realty and
  Wiemann-Lamphere judgment as a  matter of law.  Plaintiff argues that the
  court erred because (1) he had not completed his case and (2)  the evidence
  he presented and proffered gave rise to a jury question as to defendants'
  liabilities.  We  affirm.

       At trial, plaintiff presented the following facts.  On November 11,
  1992, at the construction  site of a new Saturn automobile dealership,
  plaintiff, an employee of Mahl Construction, Inc., 

 

  slipped and fell on a dirt mound ramp that provided access to Mahl's
  on-site trailer.  Plaintiff  claims that he was required to access the
  trailer to obtain equipment for his job.  The dirt mound had  uneven
  slopes, and no hand or guard rail was provided.  Moreover, freezing
  temperatures on the  morning of the accident had possibly aggravated the
  mound's dangerousness and rendered it  slippery.  Plaintiff allegedly fell
  and suffered an injury, which has caused him chronic pain ever  since.  He
  collected workman's compensation from Mahl for his injury.

       Plaintiff brought a tort action in superior court against J.W.J.
  Realty, the owner of the  construction site; Wiemann-Lamphere, an
  architectural firm hired by J.W.J. to coordinate the  construction work;
  Jeffrey and William Savoie, principals of J.W.J.; and Saturn of Vermont,
  Inc. (FN2)   Defendants indemnified Mahl.  A jury trial commenced, and for
  three days, plaintiff  introduced evidence intended to support his
  allegation that the dirt mound was unsafe and that  defendants J.W.J. and
  Wiemann-Lamphere knew about the dirt mound, should have recognized its 
  danger, and could have rectified the danger it posed.  

       With two of plaintiff's witnesses yet to testify, the court engaged in
  a lengthy discussion with  counsel regarding the relevant law and the
  evidence already presented.  The court invited plaintiff's  counsel to make
  an offer of proof with respect to any remaining evidence relevant to
  liability issues.   After plaintiff's proffer, the court concluded that
  there was no possible way that, given plaintiff's  case, it could give any
  instructions that would allow a reasonable jury to find liability against
  J.W.J.  or Wiemann-Lamphere.  Consequently, the court granted defendants'
  motions for judgment as a  matter of law, and plaintiff appealed to this
  Court.

 


       Judgment as a matter of law may be granted where "there is no legally
  sufficient evidentiary  basis for a reasonable jury to find for [the
  nonmoving] party."  V.R.C.P. 50(a)(1); Brueckner v.  Norwich Univ., __ Vt.
  __, __, 730 A.2d 1086, 1090 (1999).  We review judgment as a matter of law 
  under the same standard as the trial court: the evidence is viewed in the
  light most favorable to the  nonmoving party, and we exclude the effects of
  any modifying evidence.  See Brueckner, __ Vt. at  __, 730 A.2d  at 1090. 
  "If evidence exists that may fairly and reasonably support all elements of
  the  nonmoving party's claim, judgment as a matter of law is improper." 
  Id.  However, V.R.C.P. 50  authorizes a trial court to enter judgment as a
  matter of law against a party "at any time before  submission of the case
  to the jury," V.R.C.P. 50(a)(2), if the party's claim cannot be maintained 
  under controlling law.  See V.R.C.P. 50(a)(1).


                                     I.


       Plaintiff first argues that the court erred because plaintiff's case
  had not been fully heard on  the issue of liability.  Plaintiff contends
  that had William Savoie, a principal of J.W.J., been allowed  to testify,
  he would have told the jury of his frequent presence at the construction
  site and of the  times he had required that various dirt mounds be removed. 
  This, plaintiff argues, would have  bolstered his theory that J.W.J. had
  possession and control of the construction site and the requisite 
  awareness of the dirt mound's dangerousness to render J.W.J. liable. 
  Plaintiff also claims that a  physician would testify to the severity of
  plaintiff's injury, and to the dirt mound's dangerousness.  
	
       Plaintiff's argument is not persuasive.  First, in his proffer,
  plaintiff made no reference to the  physician.  Thus, he has waived his
  argument with regard to this witness, since we will not consider  issues
  not properly raised and preserved below.  See Rubin v. Sterling Enters.,
  Inc., 164 Vt. 582, 587,  674 A.2d 782, 785 (1996).

 
        
       As for the unheard testimony of William Savoie, we note that plaintiff
  had previously  deposed this witness, at which time he denied seeing the
  dirt mound at issue.  Thus, plaintiff's  contention that at trial, the
  witness would have bolstered plaintiff's theory that J.W.J. had the 
  requisite awareness of the dirt mound and its dangerousness was, at best,
  speculative.  In any event,  the trial court considered plaintiff's proffer
  that J.W.J. was involved in the decision making and had  contractors move
  other dirt piles in determining whether the testimony would have been
  sufficient to  support plaintiff's theory of liability against either or
  both defendants.

       The court determined that the proffered testimony would not alter its
  conclusion that J.W.J.  did not, as a matter of law, owe a legal duty to
  plaintiff.  The existence of a duty is a question of law  to be decided by
  the court.  See Denis Bail Bonds, Inc. v. State, 159 Vt. 481, 487, 622 A.2d 495, 499  (1993).  Therefore, once the court found that no legal duty
  existed, it was correct to grant defendants'  motions, because plaintiff's
  tort action was without a legal basis.  See Reporter's Notes, V.R.C.P. 50 
  ("[V.R.C.P. 50] authorizes the court to perform its duty to enter judgment
  as a matter of law at any  time during the trial, as soon as it is apparent
  that either party is unable to carry a burden of proof  that is essential
  to that party's case.") (quoting Fed. R. Civ. P. 50 Advisory Committee's
  Note);  Baisley v. Missisquoi Cemetery Ass'n., 167 Vt. 473, 477, 708 A.2d 924, 926 (1998) ("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.").  


                                     II.


       At issue, then, is plaintiff's second argument that the court erred in
  holding that defendants  owed plaintiff no duty regarding the alleged
  dangerousness of the dirt mound ramp.  Duty "is not  sacrosanct in itself,
  but only an expression of the sum total of those considerations of policy
  which 

 

  lead the law to say that the plaintiff is entitled to protection."  W.
  Keeton et al., Prosser and  Keeton on Torts § 53, at 358 (5th ed. 1984). 
  Plaintiff's legal theory is based upon § 343 of the  Restatement of Torts:  

     Dangerous Conditions Known to or Discoverable by Possessor
     A possessor of land is subject to liability for physical harm caused to 
     his invitees by a condition on the land if, but only if, he
          (a) knows or by the exercise of reasonable care would 
     discover the condition, and should realize that it involves an 
     unreasonable risk of harm to such invitees, and 
          (b) should expect that they will not discover or realize the 
     danger, or will fail to protect themselves against it, and
          (c) fails to exercise reasonable care to protect them against the 
     danger.

  Restatement (Second) of Torts § 343 (1965).  Plaintiff argues that both the
  landowner, J.W.J., and its  construction manager, Wiemann-Lamphere, knew
  about the dirt mound, should have recognized its  danger, and could have
  rectified it, and that their failure to do so renders both liable. 
  Plaintiff argues  that J.W.J. is a "possessor of land" under § 343, and
  that Wiemann-Lamphere, because it acted on  J.W.J.'s behalf in coordinating
  the project, was similarly liable under § 383 of the Restatement of 
  Torts. (FN3)


                                 A.  J.W.J.


       The essence of plaintiff's theory of liability pursuant to Restatement
  § 343 is that plaintiff  "was injured on account of a condition on the
  land, a dirt mound over which J.W.J. could exercise 

 

  control."  Defendants, however, contend that the dirt mound was not a
  condition of the land,  but rather a "construction means or method" created
  by plaintiff's employer, Mahl, to facilitate its  work. (FN4)  We agree
  with defendants.

       The trial court concluded that plaintiff could not, as a matter of
  law, establish that the dirt  mound was "a condition on the land" under §
  343.  On appeal, plaintiff contends that the court erred  because the
  mound's dirt was a "part of the land - even though the result of an
  artificial alteration of  the land's topography."  Plaintiff cites Lombardi
  v. Stout, 604 N.E.2d 117 (N.Y. 1992), to support  his argument, but we
  agree with defendants' assessment that Lombardi supports rather than 
  discredits the trial court's analysis.  In Lombardi, the plaintiff, an
  employee of a general contractor, 

 

  was injured when an inattentive co-worker failed to hold a rope with the
  result that the tree  branch the plaintiff was cutting swung out and struck
  the ladder on which the worker was standing.   The plaintiff sued the
  landowner, contending that his injuries had been caused by a dangerous 
  condition on the land and not by the co-worker's negligence.  The New York
  Court of Appeals  rejected this contention, stating:


     It is settled law that where the alleged defect or dangerous condition 
     arises from the contractor's methods and the owner exercises no 
     supervisory control over the operation, no liability attaches to the 
     owner under the common law . . . . 


  Id. at 119.  From this, plaintiff argues that the owner would have been
  liable had the injury been  caused by a dangerous condition of the premises
  over which the owner had control.  See Ross v.  Curtiss-Palmer
  Hydro-Electric Co., 618 N.E.2d 82, 88 (N.Y. 1993); Ogle v. Shell Oil Co.,
  913 F. Supp. 490, 493 (E.D. Tex. 1995).

       We fail to see the relevance of the fact that the mound was composed
  of dirt from J.W.J.'s  property to an analysis of the applicability of §
  343.  Here, the record contains ample evidence  establishing that Mahl
  constructed the mound itself and decided, of its own accord, to use the
  dirt  mound ramp to access its trailer.  There is no evidence to indicate,
  nor does plaintiff argue, that  J.W.J. exercised any supervisory control or
  input over any part of the ramp's construction.  See  Lombardi, 604 N.E.2d 
  at 119 ("[T]here is no evidence that defendant [landowner] exercised 
  supervisory control or had any input into how the branch was to be
  removed.").

       Nor is this a situation where the landowner has altered the natural
  condition of the premises  to create liability for damages resulting from
  any negligence.  See W. Keeton, supra, § 57 at 390-91.   The dirt mound
  ramp can be analogized to a wooden staircase that alternatively might have
  provided  access to Mahl's trailer.  In fact, plaintiff testified that Mahl
  had used wooden stairs on this same 

 

  trailer on another job.  Moreover, plaintiff testified that at some point
  Mahl used wooden  stairs to provide access to its trailer on the Saturn
  project in question, but that Mahl had plaintiff  remove the stairs so it
  could move the trailer.  Clearly, such a staircase would not fall under §
  343's  definition of "a condition on the land," even if the boards used to
  construct the staircase were made  from trees felled on J.W.J.'s land.  See
  Lombardi, 604 N.E.2d  at 119 ("Plaintiff's account of the  accident
  establishes that there was no dangerous condition on the premises which
  caused the  accident, but rather that it was caused by the manner in which
  removal of the branch was  undertaken.").  The dirt mound was merely a
  means or method chosen exclusively by Mahl to access  its trailer, not "a
  condition on the land" under the meaning of § 343.

       Plaintiff's evidence and proffered testimony were insufficient as a
  matter of law to prove his  theory of liability.  See Green v. Unity School
  of Christianity, 991 S.W.2d 201, 205 (Mo. Ct. App.  1999) ("Since
  Appellants cannot prove that there was a condition on the land that caused
  harm to the  decedents, there can be no liability under § 343.").  V.R.C.P.
  50 authorizes judgment as a matter of  law when "it is apparent that either
  party is unable to carry a burden of proof that is essential to that 
  party's case."  Reporter's Notes, V.R.C.P. 50 (quoting Fed. R. Civ. P. 50
  Advisory Committee's  Note).  We therefore affirm the superior court's
  grant of judgment as a matter of law.


                            B.  Wiemann-Lamphere


       Plaintiff similarly argues that Wiemann-Lamphere owed plaintiff a duty
  under § 343, since it  acted as J.W.J.'s representative in coordinating the
  construction project.  However, our decision  regarding plaintiff's claim
  against J.W.J. also disposes of his claim against the construction manager 
  and architect, since plaintiff's liability theory for Wiemann-Lamphere
  ultimately rests on § 343's  applicability to J.W.J.




       Affirmed.

                                       FOR THE COURT:



                                       _______________________________________
                                       Chief Justice




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                                  Footnotes


FN1.  We hereinafter refer to Robert Gero as plaintiff.

FN2.  The court granted the Savoies' and Saturn of Vermont's motions for
  summary judgment  prior to trial.

FN3.  Section 383 provides:

     One who does an act or carries on an activity upon land on behalf of 
     the possessor is subject to the same liability and enjoys the same 
     freedom from liability, for physical harm caused thereby to others 
     upon and outside of the land as though he were the possessor of the 
     land.


FN4.  We note that the contract between owner J.W.J., construction
  manager and architect Wiemann-Lamphere, and contractor Mahl Construction,
  imposes responsibility for the actual performance of  the work solely upon
  Mahl.  In Article 2.3.5, the contract states that Wiemann-Lamphere,
  J.W.J.'s  representative during the construction phase of the project, see
  Article 2.3.2, has no "responsib[ility]  for or . . . control or charge of
  construction means, methods, techniques, sequences or procedures, or  for
  safety precautions and programs in connection with the Work."  Nor, this
  article continues, do  J.W.J. or Wiemann-Lamphere hold any
  "responsib[ility] for or have control over the acts or  omissions of the
  Contractor."  Article 4.3.1 states that the contractor shall be "solely
  responsible for  all construction means, methods, techniques, sequences and
  procedures."  Article 10.1.1 states that  the contractor "shall be
  responsible for initiating, maintaining, and supervising all safety
  precautions  and programs in connection with the Work."  Article 10.2.1.
  continues this by requiring the  contractor to "take all reasonable
  precautions for the safety of, and [to] provide all reasonable  protection
  to prevent damage, injury or loss to . . . all employees on the Work and
  all other persons  who may be affected thereafter."

       It is thus clear that the plain, explicit language of the contract
  assigns responsibility for and  control over the means and methods of
  construction to Mahl, including safety issues that flow from  those means
  and methods.  See Ross v. Curtis-Palmer Hydro-Electric Co., 618 N.E.2d 82,
  88-89  (N.Y. 1993) (concluding that contract between landowner and general
  contractor is potential  evidence of actual control general contractor
  exercises over subcontractor's construction methods  and safety of
  subcontractor's employees); Ogle v. Shell Oil Co., 913 F. Supp. 490, 493
  (E.D. Tex.  1995) (same); Nicholson v. Turner/Cargile, 669 N.E.2d 529,
  533-34 (Ohio Ct. App. 1995) (no  contractual duty for general contractor or
  subcontractor to advise contractor of hazardous  construction procedures or
  make work site safe).