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LeClair v. LeClair

Supreme Court of Vermont

May 12, 2017

Joseph L. LeClair
Hector LeClair

         On Appeal from Superior Court, Chittenden Unit, Civil Division, Helen M. Toor, J.

          Robert J. Kaplan of Kaplan and Kaplan, Burlington, for Plaintiff-Appellant.

          Leo A. Bisson of Primmer Piper Eggleston & Cramer PC, Montpelier, for Defendant-Appellee.

          PRESENT: Reiber, C.J., Dooley, Skoglund, Robinson and Eaton, JJ.

          DOOLEY, J.

         ¶ 1. Plaintiff Joseph LeClair appeals from the trial court's grant of summary judgment to defendant Hector LeClair, plaintiff's grandfather, in this negligence action. Plaintiff argues that the trial court erred by concluding that defendant owed him no duty and that the court abused its discretion by denying his motion to amend his complaint to add a new liability theory. We reverse and remand.

         ¶ 2. Defendant is experienced in construction and has developed several properties around the state. In 2011, defendant approached his son, Ricky LeClair, who also worked in construction, about replacing the roof on the building in which defendant has his office. Defendant's son, Ricky, then approached his twenty-seven-year-old son, plaintiff, about working on defendant's roofing project. Plaintiff had also worked in construction and was an experienced roofer, but was unemployed at the time. According to plaintiff's deposition testimony, his father told him he would make "good money" for working on defendant's roof. Plaintiff's father supplied the tools, equipment, and materials for the roof job.

         ¶ 3. On October 7, 2011, plaintiff arrived at the property with another person to work on the roof. They had already removed the shingles from the roof, leaving only the underlayment, which on that October morning was covered with dew and early frost. Plaintiff claims that he initially decided not to work on the roof because the frost made it slippery but changed his mind when defendant arrived at the property and ordered him to begin work. According to his complaint, plaintiff climbed a ladder onto the property's porch roof to reach the second-story roof of the house. Plaintiff fell from the second-story roof and landed on the paved driveway below, sustaining serious and permanent head and spinal injuries.

         ¶ 4. Plaintiff brought this action against defendant for injuries sustained in his fall. His original complaint, filed in August 2014, included a single negligence claim, in which he alleged that defendant owed a duty of reasonable care in the design, condition, and maintenance of his premises to those lawfully on his property; that the frost-covered roof presented an unreasonable risk of harm; and that defendant breached his duty of care by demanding that plaintiff work on the roof when it presented an unreasonable risk.[1] Defendant's answer listed five defenses, including failure to state a claim, lack of privity between plaintiff and defendant, negligence by plaintiff that was the sole proximate cause of the injury, and conduct by plaintiff's father that was a supervening cause of the accident.

         ¶ 5. The parties agreed by stipulation to conclude all discovery by November 13, 2015, and to present any legal challenge to liability by motions for summary judgment to be filed on or before December 31, 2015. Defendant filed a motion for summary judgment on January 4, 2016. He argued that he had no duty to warn plaintiff not to go on the frosty roof because plaintiff knew the roof was not safe, that plaintiff assumed the risk of injury by knowingly going on the slippery roof, and that plaintiff's injury resulted from the nature of plaintiff's work and not the condition of the premises. In making these arguments, defendant relied primarily on the allegations in plaintiff's complaint that plaintiff saw that the roof was covered with frost when he arrived and decided to delay starting work until the frost melted, that defendant ordered him to commence work immediately even though it was dangerous to work on the roof at that time, and that plaintiff commenced work as ordered to please defendant.[2]

         ¶ 6. In his January 29, 2016 response to defendant's motion for summary judgment, plaintiff asserted that the motion attempted to characterize the arrangement to replace the roof as a traditional arms-length transaction between an otherwise uninvolved homeowner and the employee of a contractor. He contended that, instead, the evidence developed during discovery indicated that defendant was the ultimate employer on the roofing job and directed plaintiff with regard to how to perform that work. Plaintiff argued that the instant action arose from premises liability in the sense that defendant owned the property, which was also the work site, and that the property was in an unsafe condition for doing work on the roof. According to plaintiff, defendant's status as the ultimate employer on the project placed upon him a duty to provide a safe workplace for plaintiff. Plaintiff argued that he was not precluded from suing defendant because defendant's only disclosed insurance excluded workers' compensation coverage and thus defendant was not entitled to the exclusive remedy protections of workers' compensation law. Plaintiff further argued that defendant breached his duty as a landowner because he increased the foreseeable risk of harm by demanding that plaintiff work on the frosted roof.

         ¶ 7. Three days after filing his response to defendant's motion for summary judgment, plaintiff filed a motion to amend his complaint to add distinct counts entitled premises liability and negligence/safe workplace. On February 12, 2016, defendant filed an opposition to plaintiff's motion to amend, as well as a memorandum in response to plaintiff's response to defendant's motion for summary judgment. In his response, defendant directly addressed plaintiff's "employment claim, " as well as the premises liability claim.

         ¶ 8. On March 25, 2016, the trial court granted defendant summary judgment on plaintiff's premises liability claim based on its conclusion as a matter of law that defendant did not breach any duty imposed on landowners. The court reasoned as follows:

There is no dispute that Grandson was completely aware of the dangerous condition on the roof, and went on the roof anyway. Under such circumstances, there was no duty to warn. Restatement (Second) of Torts § 343 (1965) (Possessor of land is liable for a dangerous condition only if he "should expect that [the invitee] will not discover or realize the danger"). Nor has Grandson pointed to any authority for the position he is really positing: that there is a duty not to tell someone to do something they already know is dangerous. Nor is there any duty to clear ice off a roof to protect invitees. There being no duty, there can be no negligence.

         The court also denied plaintiff's motion to amend his complaint, stating that: (1) it would be unfair to require defendant to respond to an entirely new claim after he had already filed a motion for summary judgment, particularly considering that the case had been pending for eighteen months; (2) the amendment was not merely a clarification of the original complaint, but rather a completely different theory of the case based on different facts; and (3) the amendment would be futile because plaintiff had conceded that any agreement to complete the roof was between him and his father, and not him and defendant.

         ¶ 9. On appeal, plaintiff first argues that the trial court erred by finding that defendant had no duty with respect to his premises liability theory. He contends that the facts alleged in the complaint and that emerged through discovery presented a jury question as to whether he breached his duty to exercise reasonable care in demanding that plaintiff get on the frost-covered roof. He acknowledges that defendant had no duty to warn plaintiff of the open and obvious condition of the roof, but asserts that, by demanding that plaintiff go onto the frost-covered roof, he breached his duty of preventing the risk of foreseeable harm to plaintiff. As for any assumption of risk on plaintiff's part, [3] plaintiff argues there is a jury question as to whether plaintiff's decision to go onto the roof in the face of defendant's demand to do so was voluntarily made.

         ¶ 10. Given the circumstances of this case, we agree that the trial court erred in concluding, as a matter of law on summary judgment, that defendant owed no duty to plaintiff. See Burgess v. Lamoille Housing P'ship, 2016 VT 31, ¶ 17, __Vt.__, 145 A.3d 217 ("In reviewing a decision granting summary judgment, this Court applies the same standard as that applied by the trial court-the decision will be upheld if, viewing the evidence most favorably to the nonmoving party, there are no genuine disputed issues of material fact and the prevailing party is entitled to judgment as a matter of law."). To support a negligence claim, a plaintiff must show that the defendant owed the plaintiff a duty that was breached, which proximately caused injury to the plaintiff. Endres v. Endres, 2008 VT 124, ¶ 11, 185 Vt. 63, 968 A.2d 336. Whether or not one party owes a duty to another is an expression of policy considerations about when people are entitled to legal protection. Id. Thus, whether a duty is owed is primarily a legal question in which the Legislature or courts "apply general categorical rules" establishing or withholding liability. Restatement (Third) of Torts § 7 cmt. a (2010); see Kuligoski v. Brattleboro Retreat, 2016 VT 54A, ¶ 19, __Vt.__, __A.3d__.

         ¶ 11. Here, in considering the question of duty, the trial court was correct in examining plaintiff's premises liability theory under § 343 of the Restatement (Second) of Torts[4]; however, the court failed to make a complete analysis under that section. Section 343 provides that a "possessor of land" is liable "for physical harm caused to his invitees by a condition on the land if" the possessor satisfies three requirements: (1) knows or should know that the condition presents an unreasonable risk of harm to invitees; (2) "should expect that they will not discover or realize the danger, or will fail to protect themselves against it"; and (3) does not exercise reasonable care to protect the invitees from the danger.[5] Restatement (Second) of Torts § 343 (1965) (emphasis added). The critical criterion in this case is the second one, particularly whether defendant, under the circumstances, should have expected that plaintiff would not protect himself from the danger that was open and obvious to both of them.

         ¶ 12. Section 343 "should be read together with § 343A, which deals with the effect of the fact that the condition is known [or obvious] to the invitee." Restatement (Second) of Torts, § 343 cmt. a. In relevant part, § 343A provides that "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts § 343A (emphasis added). The scope of the section is explained more fully in comments e and f:

e. In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes. If he knows the actual conditions, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that he will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so. Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them.
f. There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.

Id. § 343A cmt. e, f (emphasis added).[6]

         ¶ 13. In light of the above law, we conclude that the trial court's determination that defendant had no duty as a matter of law towards plaintiff on this summary judgment record was erroneous. The facts of this case, as alleged, do not preclude a finding of duty under § 343 and § 343A, as set forth above. The key alleged fact in this case is that defendant, in a position of authority vis-à-vis plaintiff, ordered him to go onto the frosted roof despite the obvious danger involved. A jury could conclude that, in ordering plaintiff to climb onto the roof despite its dangerous condition acknowledged by both defendant and plaintiff, defendant should have anticipated that the condition of the roof presented an unreasonable risk of harm to plaintiff. Cf. Wisdom, 410 F.Supp.2d at 346 (concluding that genuine issue of material fact existed as to degree of parties' respective negligence in plaintiff tripping over clothing rack in store because even though "the danger posed by the rack was obvious as a matter of law, [plaintiff] has established the existence of disputed facts sufficient to require a jury finding as to whether [defendant] should have anticipated the harm despite its obviousness"); Dos Santos v. Coleta, 987 N.E.2d 1187, 1198 (Mass. 2013) (holding that there was jury question as to whether defendant landlord should have anticipated plaintiff tenant would be injured as result of jumping off trampoline into shallow inflatable pool placed next to trampoline by landlord). Accordingly, the trial court erred by not denying defendant's motion for summary judgment with respect to plaintiff's premises liability claim.

         ¶ 14. The dissent asserts that this is not a premises liability case at all because the claim is not tied to defendant's status as a landowner and does not rest on any evidence or argument that defendant is liable for an unreasonably dangerous condition on the premises. According to the dissent, plaintiff, as a professional roofer, is in a better position than defendant to assess the danger from the frost-covered roof and either eliminate or avoid it.

         ¶ 15. The record does not support these assertions. Plaintiff made a viable premises liability claim based on his contention that, by directing him to encounter a dangerous condition on defendant's property, defendant should have anticipated that he would encounter that dangerous condition and might be injured as a result. The dissent asks what defendant was supposed to do to prevent the danger to plaintiff. The answer is as open and obvious as the dangerous condition- not demand that plaintiff, who had decided not to go up on the roof because of its dangerous condition, encounter the dangerous condition on defendant's property.

         ¶ 16. In support of its position that defendant is entitled to judgment as a matter of law on the premises liability claim, the dissent suggests, incorrectly, that there was no dispute as to plaintiff's superior knowledge of the danger presented by the frost-covered roof. Plaintiff asserted that defendant himself was an experienced homebuilder; that defendant directed him daily on the roof replacement project; and that on the day of the accident when plaintiff indicated he did not want to go up on the frost-covered roof, defendant directed him to hose it down and then go up on the roof. Viewing the evidence most favorably to plaintiff as the nonmoving party, a jury could have concluded that defendant, as plaintiff's grandfather and customer, [7] was in a position to pressure plaintiff into encountering the dangerous condition on the premises, and thus should have anticipated that plaintiff might be injured in doing so. It is for the jury as factfinder, not this Court, to determine whether defendant breached a duty to prevent plaintiff from being injured by a dangerous condition on the property that defendant should have anticipated plaintiff would encounter.

         ¶ 17. The dissent correctly states that this is not a case where plaintiff's attention may have been distracted from the dangerous condition, [8] but incorrectly states that this case does not fall within the open-and-obvious exception in which the "property owner should not expect that a reasonable roofer, mid-job, will climb on to a frost-covered, underlayment-clad roof despite the obvious and recognized dangers." Post, ¶ 51. To the contrary, given the alleged facts, the jury could have concluded, to quote § 343A, comment f, that defendant "had reason to expect that [plaintiff would] proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk." See Cracchiolo v. E. Fisheries, Inc., 740 F.3d 64, 71 (1st Cir. 2014) (stating that "a landowner can and should anticipate a particular harm on a finding that a reasonable man in plaintiff's position would conclude that the advantages of encountering the danger would outweigh the apparent risk"); cf. Lucasey v. Plattner, 2015 IL App (4th) 140512, ¶¶ 40-42, 28 N.E.3d 1046 (discussing "deliberate-encounter" exception to open-and-obvious doctrine, which courts apply when "a plaintiff is forced to make a choice between either facing the danger or neglecting his duties").

         ¶ 18. The dissent cites three cases in support of its position, none of which have much relevance here. The two older Missouri intermediate appellate court cases involved situations where the undisputed evidence demonstrated that the defendant commercial landowners had no direct control over the work on their property by the plaintiffs, one of whom was an independent contractor and the other an employee of an independent contractor. See Kelly v. Dairy Queen Enters., Inc., 581 S.W.2d 903, 905-06 (Mo. 1979) (reversing jury verdict for plaintiff repairman, who was injured after falling off ladder on defendant's premises, where there was no evidence that defendant's conduct caused ladder to slip and plaintiff worked independently with his own equipment and "was not a servant ordered by defendant to go where he did"); Hokanson v. Joplin Rendering Co., 509 S.W.2d 107, 110-14 (Mo. 1974) (reversing jury verdict for plaintiff employee of independent contractor injured at defendant's business where plaintiff had superior knowledge of dangerous condition and was "[a] skilled workman following his own devices" who was "actually in charge of the operation in which he [was] engaged [and had] control over the area of the premises where he [was] injured"). Similarly, in the other case cited by the dissent, which does not even mention ยง 343A, the court affirmed summary judgment in favor of the defendant commercial landowner on a premises liability claim arising from the plaintiff's injury while ...

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