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Bernasconi v. City of Barre Hope Cemetery

Supreme Court of Vermont

January 25, 2019

Jay Bernasconi
City of Barre: Hope Cemetery

          On Appeal from Superior Court, Washington Unit, Civil Division Mary Miles Teachout, J.

          Mary Miles Teachout, J. Andrew B. Delaney and Thomas M. Kester (On the Brief) of Martin & Associates, P.C., Barre, for Plaintiff-Appellant.

          Marikate E. Kelley and Philip C. Woodward of Woodward & Kelley, PLLC, North Ferrisburgh, for Defendant-Appellee.

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

          ROBINSON, J.

         ¶ 1. Plaintiff Jay Bernasconi appeals from the Superior Court's grant of summary judgment to defendant City of Barre. Plaintiff fell into a hole and injured his knee while visiting family graves at Hope Cemetery, which the City owns. He contends that the City's negligent maintenance of the Cemetery caused his injury. We conclude that even if the City was negligent in its inspection and maintenance practices, because plaintiff produced no evidence from which it is possible to determine how long the hole existed, he cannot show that the City would have found the hole if it followed different inspection and maintenance practices. Thus, he cannot establish that any breach of the City's duty of care caused his injuries. We accordingly affirm.[1]

         ¶ 2. The evidence in the summary-judgment record viewed in the light most favorable to plaintiff reflects the following. One day in the spring of 2014, plaintiff visited Hope Cemetery in Barre, Vermont to place flowers on family members' graves. After visiting the graves of his parents, sister, and grandparents, plaintiff asked someone working at the Cemetery where plaintiff's great-grandfather's gravestone was located; the employee pointed plaintiff toward the "old section" of the cemetery. Plaintiff walked on the grass looking for his great-grandfather's gravestone. He went on the grass because the road was busy and he did not want to have to look out for traffic, and there was a grate in the road that would have funneled him off the road in any event. Plaintiff stepped in the hole before he reached the old section of the Cemetery, while he was walking in a heavily travelled walking area. He did not notice the hole because he was not looking directly at the ground. The hole was "kind of like a booby trap." It was about the size of his foot and was deep enough that plaintiff fell into it down to his knee. The hole would have been visible to someone mowing the lawn and looking directly at the ground to avoid obstacles. When he dropped into the hole, he bent forward at the waist and his head hit the ground. He was shocked and dazed, and he walked back to his car and left the Cemetery.

         ¶ 3. Plaintiff returned the next day to look at the hole. There he found two Cemetery workers standing and talking about fifty feet from it. When he told them there was a deep hole and pointed to where it was, they said they already knew about it and were going to fill it in. They did not give plaintiff any information or reason to believe how long they had known about the hole. Plaintiff told the workers he had stepped in the hole the day before, and one of them smiled and said, "Call your lawyer." Subsequently, two of the City's employees whom plaintiff deposed could not remember whether they had notice of the hole before plaintiff stepped in it.

         ¶ 4. Holes sometimes appear at the Cemetery. As one of the City's employees explains, "We dig holes in there. From time to time there [are] sinkholes." Holes are particularly likely to develop after a hard rain because the rain causes the earth, which has been disturbed by the digging of graves, to collapse. The lawnmowers can also cause holes, as can burrowing animals.

         ¶ 5. The City relies on the on-site observations of its maintenance staff to inspect the grounds and address observed problems as they do regular mowing and related grounds work. The work leader testified that he is "constantly checking" for holes, and he tries to drive around the Cemetery daily to look for them. Sometimes visitors report holes to the staff. Sometimes a worker would see, but not report, a hole. The work leader addresses holes by filling them in or by putting plywood or an orange cone over them.

         ¶ 6. Plaintiff filed this action in October 2015 alleging premises liability and negligence by the City's workers.[2] He sought compensatory damages, prejudgment interest, and attorney's fees and costs. The crux of plaintiff's negligence claims was then, and remains, that the City was negligent in failing to eliminate or warn of the danger arising from the unmarked hole.

         ¶ 7. The City moved for summary judgment, arguing that plaintiff's negligence claim failed because the record was insufficient to support findings of duty, breach, or proximate causation. Plaintiff opposed summary judgment, arguing that there was a genuine issue of material fact as to the foreseeability of his injury, which he argued should be left to the jury to decide.

         ¶ 8. The trial court granted the City's motion for summary judgment on both counts. It explained that while the "complaint superficially includes two claims, negligence and premises liability, they describe the same tort. [Plaintiff's] claim is that the grounds of the Cemetery included a concealed, dangerous condition-a hole in the ground-that injured him. This is a basic premises liability claim." The court held that plaintiff had failed to produce sufficient evidence that the City knew or should have known of the hole to support a negligence claim.

         ¶ 9. On appeal, plaintiff argues that the grant of summary judgment to the City was inappropriate because there were genuine issues of material fact as to whether his injury was foreseeable and as to what duty the City owed him.[3] Plaintiff argues that a jury could conclude his injury was foreseeable because there was evidence that holes regularly formed in the Cemetery, visitors had previously encountered them, the City had at least constructive notice of the hole at issue because of this past history of hole formation, and a reasonably careful inspection would have revealed it. He argued that a jury could infer the City had actual notice that the hole existed at the time of the accident because there was evidence that the City's workers did not always fix holes after finding them, and the workers knew about the hole on the day after plaintiff fell into it. Plaintiff argued that there was also a genuine issue of material fact as to whether the City breached its duty of care. The City's duty to exercise ...

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