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Demag v. Better Power Equipment, Inc.

Supreme Court of Vermont

July 18, 2014

Rodney W. Demag
v.
Better Power Equipment, Inc

Page 1102

[Copyrighted Material Omitted]

Page 1103

Editorial Note:

This Opinion is subject to motion for reargument or formal revision before publication. See V.R.A.P. 40

On Appeal from Superior Court, Chittenden Unit, Civil Division. Geoffrey W. Crawford, J.

R. Jeffrey Behm, Jon T. Alexander and Eric S. Miller of Sheehey Furlong & Behm P.C., Burlington, for Plaintiff-Appellant.

Robin Ober Cooley of Pierson Wadhams Quinn Yates & Coffrin, LLP, Burlington, for Defendant-Appellee.

Present: Reiber, C.J., Dooley, Skoglund and Robinson, JJ., and Eaton, Supr. J., Specially Assigned.

OPINION

Page 1104

Dooley, J.

[¶1] Plaintiff Rodney Demag appeals a summary judgment decision of the superior court against him in this personal injury case. Consistent with our current negligence law, the trial court found that plaintiff was a licensee of defendant, Better Power Equipment, Inc. (BPE), rather than an invitee. It then concluded that plaintiff was entitled to a lesser standard of care from BPE, which allowed for summary judgment against him. We determine that the time has come to abolish Vermont's common-law negligence distinction between licensees and invitees and reverse and remand.

[¶2] As found by the trial court, the undisputed facts are as follows. Plaintiff worked for a car dealership which also provided automobile service. As a convenience for customers, he picked up vehicles belonging to customers, leaving his own vehicle and returning the customer's vehicle at the end of the day. Plaintiff provided this service to BPE's general manager and his wife, picking up their cars from BPE's parking lot. This occurred five to six times a year. The arrangement had existed for approximately ten years.

[¶3] In January 2009, plaintiff drove to BPE for the scheduled service, parking in his usual spot next to the vehicle of the general manager and his wife. Although this area was not generally used for parking by BPE customers, the general manager and his wife typically parked there, and other employees sometimes parked there in the winter. Plaintiff spoke briefly with the general manager about the service needed for his vehicle. Plaintiff then returned to his own vehicle, retrieved a few items, took a step and fell into an uncovered storm drain. He filed this case to recover damages for the injuries he suffered as a result of that fall.

[¶4] Under the terms of its lease, BPE is responsible for maintaining all buildings and surface areas of the premises. The parties agree that BPE and its employees were not aware that the storm drain was uncovered until plaintiff fell into it. Recent snowfall had obscured the drain so that its opening was not obvious, although a BPE employee had plowed the area around the drain the day before plaintiff's fall. The general manager, who had worked for BPE for twenty-five years, stated in a deposition that the storm drain cover had never come off before. However, he

had noticed that the cover rocked in place when he drove over it, and that there was some minor deterioration in the raised concrete ring around the storm drain cover... . In his opinion, the cover had heaved and tilted above its proper position ...

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