United States District Court, D. Vermont
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
SUMMARY JUDGEMENT (DOC. 58)
CHRISTINA REISS, DISTRICT JUDGE UNITED STATES DISTRICT COURT
Mark and Janelle Spooner, a married couple from Keeseville,
New York, bring this lawsuit alleging a premises liability
theory of negligence and loss of consortium arising out of
Mr. Spooner's fall from a loading dock at Defendant Todd
Transportation Co.'s warehousing and trucking facility
located at 25 Curtis Avenue in Rutland, Vermont (the
"Facility"). Mr. Spooner suffered injuries to his
cervical spine which left him almost fully paralyzed from his
neck down, and for which he requests an award in excess of
$75, 000 exclusive of interest and costs.
August 27, 2015, Plaintiffs filed their Complaint which
Defendant answered on November 4, 2015. On January 9, 2018,
the court granted Plaintiffs leave to file an Amended
Complaint which they filed the following day. Plaintiffs'
Amended Complaint withdraws a theory of liability based upon
the wet surface of the loading dock from which Mr. Spooner
pending before the court is Defendant's motion for
summary judgment, filed on July 26, 2017, which is based on
the allegations in Plaintiffs' original Complaint. In its
motion. Defendant contends that it owed no duty to protect
Mr. Spooner from an open and obvious danger as a matter of
Vermont law. Defendant also contends that Mr. Spooner's
comparative negligence was sufficient to preclude
Defendant's liability as a matter of law. On September
15, 2017, Plaintiffs opposed summary judgment, arguing that
Defendant had a duty to protect Mr. Spooner because it knew
or should have anticipated that Mr. Spooner would fail to
protect himself from an open and obvious danger and that Mr.
Spooner's own negligence does not eliminate
Defendant's liability. The court heard oral argument on
November 17, 2017, after which it took the pending motion
are represented by Mark A. Schneider, Esq., R. Drew Palcsik,
Esq., and Todd D. Schlossberg, Esq. Defendant is represented
by John T. Pion, Esq., Meredith M. Lasna, Esq., Ralph Suozzo,
Esq., Stephen E. Geduldig, Esq., and William A. Staar, Esq.
The Undisputed Facts.
early 2011, Mr. Spooner, a fifty-eight year old man, was
employed as a delivery driver for Denton Publications, Inc.
("Denton"), a New York publisher of several
regional newspapers. In addition to publishing its own
papers, Denton provided printing services to other
newspapers, including the Mountain Times. As part of these
services, Denton delivered copies of the Mountain Times to
Defendant's Facility where local delivery drivers
collected them for distribution in Vermont. Defendant is in
the business of moving, storage, and transfer of goods.
Facility's main building has three loading docks, all
built in 1978 prior to Defendant's acquisition of the
property. Two of the docks measure approximately eight and
half feet wide. The third dock is designed for oversized
trailers and is approximately twelve feet wide (the
"oversize loading dock"). Defendant's President
Douglas Todd acknowledged that the oversize loading dock may
be "unusually wide[.]" (Doc. 72-7 at 95.)
Defendant's purchase of the property forty years ago, it
has used the Facility at least five days per week and has not
altered it in any way except to replace worn-out overhead
doors. Douglas Todd could not recall an instance of an
employee reporting "a safety concern around the loading
docks or warehouse" during Defendant's ownership.
(Doc. 58-5 at 18.) Vice President of Operations Richmond Todd
observed "Mr. Spooner inside of and along the edge of
[the oversize loading dock] bay approximately one dozen
times." (Doc. 58-6 at 3, ¶ 7.)
Spooner's job at Denton required him to transport pallets
of printed papers in an eight foot wide box truck from Denton
to the Facility. At the Facility, Richmond Todd typically
used a forklift to remove the pallets of newspapers from Mr.
Spooner's box truck and load them into a Mountain Times
delivery van parked in one of the two remaining bays. Mr.
Spooner's practice was to back his truck into the middle
of the oversize loading dock, leaving an approximately two
foot gap between each side of his eight foot box truck and
the edge of the deck of the oversize loading dock.
Spooner also usually collected two empty pallets from the
Mountain Times driver for return to Denton which reused them.
In the event that an empty pallet returned by a Mountain
Times driver was damaged, Mr. Spooner's practice was to
dispose of it in a discard pile of broken pallets adjacent to
the oversize loading dock. In the approximately eleven months
of Mr. Spooner's employment at Denton, he disposed of
broken pallets at the Facility approximately six times.
disposing of broken pallets in the discard pile, Mr. Spooner
and Defendant's employees, including Richmond Todd and
Warehouse Foreman Joseph LaPoint, occasionally threw them
from the oversize loading dock deck. In his previous use of
this practice, Mr. Spooner experienced no "difficulty
with discarding a broken pallet onto the [discard] pile"
and never notified any of Defendant's employees of
conditions he thought were "unsafe[.]" (Doc. 58-7
at 17.) Mr. Spooner engaged in this activity with
Defendant's knowledge and consent.
chose not to throw broken pallets off the oversize loading
dock deck, Defendant's employees would lay discarded
pallets on the loading dock deck, walk outside to the lower
level of the oversize loading dock bay, and then carry the
pallets to the discard pile.
September 5, 2012, Mr. Spooner arrived at the Facility with a
shipment of Mountain Times newspapers for distribution. A
rainstorm prior to Mr. Spooner's arrival had left the
metal edge of the loading dock wet. After Richmond Todd
unloaded the pallets carrying Mountain Times papers, Mr.
Spooner received two pallets for return to Denton: one
re-usable and one broken. The broken wooden pallet measured
forty inches by forty-eight inches by six inches and weighed
between fifty-five and seventy-five pounds. It had sustained
damage to two "runners" or "skids[, ]"
which were protruding about six inches. (Doc. 58-10 at 9.)
Mr. Spooner placed the re-useable pallet in his box truck for
return to Denton. He planned to leave the broken pallet in
the discard pile adjacent to the oversize loading dock.
Spooner acknowledges that he had three choices for disposing
of the broken pallet. First, he could have loaded the broken
pallet into his box truck, returned it to Denton, and
disposed of it there. Second, he could have laid the pallet
on the oversize loading dock deck, walked outside the
Facility building to the exterior of the oversize loading
dock bay fifty-four inches below the deck level, and then
carried the broken pallet to the discard pile. Third, he
could have thrown the pallet from the oversize loading dock
deck to the discard pile below. Mr. Spooner rejected the
first option because he was ultimately responsible for
disposing of the broken pallet and would have had to bring it
home from the Denton warehouse in New York as Denton required
him to clean out broken materials from its building. He
rejected the second option because he "already had it
there on top of the dock, and [had] decided at the time [he]
was going to throw it over." (Doc. 58-10 at 15.) He
therefore chose the third option.
the broken pallet on its end, Mr. Spooner positioned his left
foot on a platform extending from the end of his box truck
and his right foot on the metal edge of the oversize loading
dock deck. He then placed his left hand on the front of the
pallet and his right hand on the back and threw it through
the gap between the side of his box truck and the edge of the
oversize loading dock in the direction of the discard pile, a
maneuver he had performed successfully in the past. As Mr.
Spooner threw the pallet through the gap, the pallet hit him,
his right foot lost its grip, and he lost his balance. He
fell head first to the pavement fifty-four inches below and
sustained significant injuries including almost total
paralysis below his neck.
were no protective railings or other guards in place on the
oversize loading dock deck to prevent a fall. Adding a
protective barrier that blocked the two foot gaps between the
edge of the oversize loading dock deck and an eight foot wide
box truck would not interfere with Defendant's use of the
to his injury, Mr. Spooner did not believe he was "doing
something hazardous[, ]" (Doc. 72-10 at 26), or that
throwing the pallet "was unsafe." Id. at
25. Defendant similarly acknowledged that, at the time of Mr.
Spooner's injury, it did not believe he was "doing
anything dangerous" and that it regarded Mr. Spooner as
a "good conscientious and safe guy[.]" (Doc. 72-6
at 46.) Defendant further conceded that it believed its own
employees' practice of throwing pallets from the oversize
loading dock deck was safe.
did not ask Mr. Spooner to dispose of the broken pallet,
direct him to do so in the manner he chose, or force him to
perform any activity on the deck of the oversize loading
Spooner believes he is approximately thirty percent
responsible for his injuries. He alleges that Defendant is
seventy percent responsible for them.
The Disputed Facts.
parties agree on the facts culminating in Mr. Spooner's
injury, but dispute the extent to which Defendant knew the
unguarded drop from the oversize loading dock was an open and
obvious danger which Defendant should have anticipated Mr.
Spooner would not protect himself against. Plaintiffs assert
that Defendant should have anticipated Mr. Spooner would fail
to protect himself from an unguarded fifty-four inch drop
from the oversize loading dock, especially in light of
Defendant's placement of the discard pile adjacent to and
accessible from the oversize loading dock deck and Mr.
Spooner's practice of throwing broken pallets from the