Appeal from Superior Court, Washington Unit, Civil Division
Mary Miles Teachout, J.
Miles Teachout, J. Andrew B. Delaney and Thomas M. Kester (On
the Brief) of Martin & Associates, P.C., Barre, for
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,
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
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. 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
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 ...