LECLAIR v LECLAIR

169 A. 3d 743 (Vt. 2017)

Law 204 Tort Law for Paralegals 6th ed by Neal R Bivans

1. How was the plaintiff injured in this case?
2. Was the plaintiff unknown to the defendant or did the court consider it to be important the parties were actually related to one another?
3. Why does the appellate court conclude that the trial court was incorrect in its premises liability theory?
4. What did the appellate court consider to be the "key" factor in this case?
5. Is it significant that there was no agreement between the parties about how the work was to be done?

LECLAIR V. LECLAIR 169 A.3d 743 (Vt. 2017) Opinion the roof. They had already removed the shin- DOOLEY, J. gles from the roof, leaving only the underlay Plaintiff Joseph LeClair appeals from the trial ment, which on that October morning was court's grant of summary judgment to defen- covered with dew and early frost. Plaintiff dant Hector LeClair, plaintiff's grandfather, in claims that he initially decided not to work on this negligence action. Plaintiff argues that the the roof because the frost made it slippery but trial court erred by concluding that defendant changed his mind when defendant arrived at owed him no duty and that the court abused the property and ordered him to begin work, its discretion by denying his motion to amend According to his complaint, plaintiff climbed a his complaint to add a new liability theory. We ladder onto the property's porch roof to reach reverse and remand. the second-story roof of the house. Plaintiff Defendant is experienced in construction fell from the second-story roof and landed on and has developed several properties around th the paved driveway below, sustaining serious state. In 2011, defendant approached his son, and permanent head and spinal injuries. Ricky LeClair, who also worked in construction, Plaintiff brought this action against defen about replacing the roof on the building in which dant for injuries sustained in his fall. His orig- defendant has his office. Defendant's son, Ricky, inal complaint, filed in August 2014, included then approached his twenty-seven-year-old son, a single negligence claim, in which he alleged plaintiff, about working on defendant's roofing that defendant owed a duty of reasonable care project. Plaintiff had also w construction in the design, condition, and maintenance of and was an experienced roofer, but was unem- his premises to those lawfully on his prop- ployed at the time. According to plaintiff's depo- erty; that the frost-covered roof presented an sition testimony, his father told him he would unreasonable risk of harm; and th at defendant make "good money" for working on defendant's breached his duty of care by demanding that roof. Plaintiff's father supplied the tools, equip- plaintiff work on the roof when it presented an ment, and materials for the roof job. unreasonable risk. Defendant's answer listed On October 7, 2011, plaintiff arrived at five defenses, including failure to state a claim, the property with another person to work on lack of privity between plaintiff and defendant, 132 Chapter 4 negligence by plaintiff that was the sole prox- defendant's only disclosed insurance excluded imate cause of the injury, and conduct by workers' compensation coverage and thus plaintiff's father that was a supervening cause defendant was not entitled to the exclusive COL dut of the accident. remedy protections of workers' compensa- He The parties agreed by stipulation to con- tion law. Plaintiff further argued that defen- plai clude all discovery by November 13, 2015, and dant breached his duty as a landowner because sent to present any legal challenge to liability by he increased the foreseeable risk of harm by his . motions for summary judgment to be filed on demanding that plaintiff work on the frosted ing or before December 31, 2015. Defendant filed roof. He : a motion for summary judgment on January 4, On March 25, 2016, the trial court granted war. 2016. He argued that he had no duty to warn defendant summary judgment on plaintiff's tion plaintiff not to go on the frosty roof because premises liability claim based on its conclu that plaintiff knew the roof was not safe, that plain- sion as a matter of law that defendant did not brea tiff assumed the risk of injury by knowingly breach any duty imposed on landowners. The seeal going on the slippery roof, and that plaintiff's court reasoned as follows: of ris injury resulted from the nature of plaintiff's a jur work and not the condition of the premises. There is no dispute that Grandson was to gc In making these arguments, defendant relied completely aware of the dangerous con- demi primarily on the allegations in plaintiff's com- dition on the roof, and went on the roof plaint that plaintiff saw that the roof was cov- anyway. Under such circumstances, agree ered with frost when he arrived and decided there was no duty to warn. Restatement as a 1 to delay starting work until the frost melted, (Second) of Torts $ 343 (1965) (Possessor defen that defendant ordered him to commence of land is liable for a dangerous condition port : work immediately even though it was danger- only if he "should expect that [ the invitee] that I ous to work on the roof at that time, and that will not discover or realize the danger"). that v plaintiff commenced work as ordered to please Nor has Grandson pointed to any author- injury defendant. ity for the position he is really positing: owes : In his January 29, 2016 response to defen- that there is a duty not to tell someone to icy co dant's motion for summary judgment, plaintiff do something they already know is dan- tled to asserted that the motion attempted to charac- gerous. Nor is there any duty to clear ice owed terize the arrangement to replace the roof as off a roof to protect invitees. There being Legisl a traditional arms-length transaction between" no duty, there can be no negligence. cal rul an otherwise uninvolved homeowner and the Restate employee of a contractor. He contended that, The court also denied plaintiff's motion to H. instead, the evidence developed during dis- amend his complaint, stating that: (1) it would the trii covery indicated that defendant was the ulti- be unfair to require defendant to respond to lift's p mate employer on the roofing job and directed an entirely new claim after he had already filed the Re plaintiff with regard to how to perform that a motion for summary judgment, particularly the col work. Plaintiff argued that the instant action considering that the case had been pending under arose from premises liability in the sense that for eighteen months; (2) the amendment was a pos: defendant owned the property, which was also not merely a clarification of the original com- harm he work site, and that the property was in an plaint, but rather a completely different theory on the unsafe condition for doing work on the roof. of the case based on different facts; and (3) the require According to plaintiff, defendant's status as amendment would be futile because plaintiff the con he ultimate employer on the project placed had conceded that any agreement to complete of harn upon him a duty to provide a safe workplace the roof was between him and his father, and they wil or plaintiff. Plaintiff argued that he was not not him and defendant. will fail precluded from suing defendant because (3) does 133 introduction to Negligence On appeal, plaintiff first argues that the trial the invitees from the danger. Restatement court erred by finding that defendant had no (Second) of Torts $ 343 (1965). The critical duty with respect to his premises liability theory. criterion in this case is the second one, partic- He contends that the facts alleged in the com- ularly whether defendant, under the circum- plaint and that emerged through discovery pre- stances, should have expected that plaintiff "sented a jury question as to whether he breached would not protect himself from the danger his duty to exercise reasonable care in demand- that was open and obvious to both of them. ing that plaintiff get on the frost-covered roof. In the ordinary case, an invitee who enters He acknowledges that defendant had no duty to land is entitled to nothing more than knowl- warn plaintiff of the open and obvious condi- edge of the conditions and dangers he will tion of the roof, but asserts that, by demanding encounter if he comes. If he knows the actual that plaintiff go onto the frost-covered roof, he conditions, and the activities carried on, and breached his duty of preventing the risk of fore- the dangers involved in either, he is free to seeable harm to plaintiff. As for any assumption make an intelligent choice as to whether the of risk on plaintiff's part, plaintiff argues there is advantage to be gained is sufficient to jus- a jury question as to whether plaintiff's decision tify him in incurring the risk by entering or to go onto the roof in the face of defendant's remaining on the land. The possessor of the demand to do so was voluntarily made. land may reasonably assume that he will pro- Given the circumstances of this case, we tect himself by the exercise of ordinary care, or agree that the trial court erred in concluding, that he will voluntarily assume the risk of harm as a matter of law on summary judgment, that if he does not succeed in doing so. Reasonable defendant owed no duty to plaintiff. To sup- care on the part of the possessor therefore does port a negligence claim, a plaintiff must show not ordinarily require precautions, or even that the defendant owed the plaintiff a duty warning, against dangers which are known to that was breached, which proximately caused the visitor, or so obvious to him that he may be injury to the plaintiff. Whether or not one party expected to discover them. owes a duty to another is an expression of pol- In light of the above law, we conclude that icy considerations about when people are enti- the trial court's determination that defendant iled to legal protection. Thus, whether a duty is had no duty as a matter of law towards plain- owed is primarily a legal question in which the tiff on this summary judgment record was Legislature or courts "apply general categori- erroneous. The facts of this case, as alleged, cal rules" establishing or withholding liability. do not preclude a finding of duty under $ 343 Restatement (Third) of Torts $ 7 cmt. a (2010). and $ 343A, as set forth above. The key alleged Here, in considering the question of duty, fact in this case is that defendant, in a position the trial court was correct in examining plain- of authority vis-a-vis plaintiff, ordered him to tiff's premises liability theory under $ 343 of go onto the frosted roof despite the obvious the Restatement (Second) of Torts; however, danger involved. A jury could conclude that, the court failed to make a complete analysis in ordering plaintiff to climb onto the roof under that section. Section 343 provides that despite its dangerous condition acknowledged "possessor of land" is liable "for physical by both defendant and plaintiff, defendant harm caused to his invitees by a condition should have anticipated that the condition on the land if" the possessor satisfies three of the roof presented an unreasonable risk of requirements: (1) knows or should know that harm to plaintiff. Accordingly, the trial court the condition presents an unreasonable risk erred by not denying defendant's motion for of harm to invitees; (2) "should expect that summary judgment with respect to plaintiff's they will not discover or realize the danger, or premises liability claim. will fail to protect themselves against it"; and Here, the evidence was disputed as to (3) does not exercise reasonable care to protect the extent defendant directed plaintiff's134 Chapter 4 Int work and how plaintiff was to be compen- Hosp., 119 Vt. 336, 338, 125 A.2d 796, 798 sated. Depending on the evidence presented (1956). at trial on these and other disputed facts, a To understand how the definitions play out jury could conclude that defendant breached in this case, we return to the narratives of the a duty to protect plaintiff from encounter- parties as summarized above. Plaintiff relies pri- ing an open-and-obvious dangerous condi- marily on who controlled his work and his depo- tion on his property by demanding that he sition testimony that the work was controlled by encounter the dangerous condition, in which defendant, who had replaced roofs as part of his case he should have anticipated that defen- business in the past, and not by defendant's son, dant might be injured as a result of the con- who was not present at all when the work was dition. Accordingly, in this case the superior being done. Defendant relies primarily on other court's grant of summary judgment to defen- facts: the agreement between defendant and his dant on plaintiff's premises liability claim was son; the son's supplying of the tools, equipment inappropriate. and materials; the son's hiring of plaintiff and Plaintiff's theory of liability is based on the uncertainty of compensation. In our view, "the common law obligation of a master to the presence of contradictory factors, the lim- This furnish his servant a reasonably safe place in itations and factual conflicts in the summary which to work and to keep such place in rea- judgment record, and the range of inferences STA sonable repair." Landing v. Town of Fairlee, 112 that could be drawn from the factual statements COL Vt. 127, 129, 22 A.2d 179, 180 (1941). A simi- prevent a conclusion that there is no genuine lar duty is now codified in 21 V.S.A. $ 223(a), issue of material fact and one party is entitled Lisa although no private right of action is created to judgment as a matter of law on the common to enforce it. For our purposes, the terms mas- law claim. Thus, as with the original complaint, Plain ter and servant and employer and employee summary judgment could not be awarded to are synonymous. Because plaintiff alleges defendant on the common law count added by VS that defendant was obligated to have workers' the proposed amendment. compensation insurance covering plaintiff as For the above reasons, we hold that the an employee, pursuant to 21 V.S.A. $ 687, and superior court erred both in denying plaintiff's Marv failed to have such insurance, plaintiff argues motion to amend his complaint and in grant; Delia that 21 V.S.A. $ 618(b) applies and shifts the ing summary judgement to plaintiff. Defen burden of proof on negligence and proximate Reversed and remanded. cause to defendant and prevents defendant from relying, as a defense, on assumption of Questions about the case: COM the risk or the negligence of the plaintiff under defenc 12 V.S.A. $ 1036. See id. $ 618(b)(1), (2), (3). 1. How was the plaintiff injured in this The trial court ruled as a matter of law that case? defendant was not plaintiff's employer because 2. Was the plaintiff unknown to the That of the absence of an agreement between plain- defendant or did the court consider it Barnes tiff and defendant and plaintiff's concession to be important that the parties were that there was an agreement between defen- actually related to one another? dant's son and defendant. With respect to 3. Why does the appellate court conclude Upon i plaintiff's common law claim that defendant that the trial court was incorrect in its "deferic had a duty to provide a safe place to work premises liability theory? and negligently violated that duty, we look to 4. What did the appellate court consider the common law definitions of employer and to be the "key" factor in this case? Upon i employee. We have held that the "essential ele- 5. Is it significant that there was no agre "defend ment in the relationship of master and servant ment between the parties about how is the right of control." Minogue v. Rutland the work was to be done