2014 USLAW Retail Compendium of Law

STATE OF VERMONT RETAIL COMPENDIUM OF LAW

Prepared by R. Matthew Cairns

Gallagher Callahan & Gartrell, P.C. 214 North Main Street

P.O. Box 1415 Concord, NH 03302-1415

800-528-1181 Email: cairns@gcglaw.com

www.gcglaw.com

Retail, Restaurant, and Hospitality

Guide to Vermont Premises Liability

Vermont State Court Systems 1

A. Judicial Selection 1

B. Structure 1

i. Supreme Court 1

ii. Superior Courts 1

iii. Small Claim Courts 1

C. Other Judicial Venues/Court 1

i. Judicial Bureau 1

ii. Environmental Court 2

D. Vermont Federal Courts 2

Negligence 2

a. General Negligence Principles 2

Premises Liability 2

ii. Duty Owed to Trespasser 2

ii. Duty Owed to Licensee 2

iii. Duty Owed to Business Invitee 3

iv. Business Owner Duty to Inspect

for Dangerous Conditions 3

Comparative Fault 3

Apportionment Among Multiple Defendants 3

b. Elements of a Cause of Action of Negligence 3

c. The “Out of Possession Landlord” 4

“Slip and Fall” Type Cases 4

a. Snow and Ice – The “Storm in Progress” Doctrine 4

b. “Black Ice” 4

c. Liability of Snow Removal Contractors 4

d. Slippery Surfaces – Cleaner, Polish, and Wax 4

e. Defenses 5

Liability for Violent Crime 5

Claims Arising From the Wrongful Prevention of Thefts 5

a. False Arrest and Imprisonment 5

b. Malicious Prosecution 5

c. Defamation 5

d. negligent Hiring, Retention, or Supervision of Employees 5

Food Poisoning 6

Indemnification and Insurance-Procurement Agreements 7

a. Generally 7

i. Express or Implied 7

ii. Indemnification for own negligence 7

b. Insurance Procurement Agreements 7

c. The Duty to Defend 7

Damages 8

a. Introduction 8

b. Compensatory Damages 8

i. General Damages 8

ii. Special Damages 9

c. Nominal Damages 9

d. Punitive Damages 9

e. Wrongful Death 9

i. Pecuniary Loss 9

ii. Survivor Action 10

1

1. The Vermont State Court System.

A. Judicial selection. Candidates for the Vermont Supreme and Superior Courts are

initially selected by a nominating board based on applications. A final list of candidates

is sent to the Governor. The Governor’s selection(s) are then sent to the Vermont Senate

for an up or down vote. If approved, the Justice will serve a 6 year term and then will

have to face review by the Senate which can vote to retain or dismiss the Justice.

B. Structure. Vermont's judicial system is configured as follows:

Most significant to this publication are the Supreme Court and the Superior Courts.

i. Supreme Court. The Supreme Court is Vermont’s only appellate court. There

are 5 Justices on the Court, though most cases are heard by only 3 justices, who

must reach a unanimous decision or else the case goes to the full bench. Only

decisions issued by all 5 Justices can be cited as controlling authority. VRAP

33.1.

ii. Superior Courts. Each county has its own Superior Court. The Civil Division is

the trial court for all civil matters and has exclusive original jurisdiction over all

civil actions except cases that belong in the environmental court, the family court

or the judicial bureau. The Civil Division also hears appeals from Small Claims

Court.

iii. Small Claim Courts. Damages are less than $5000.

C. Other Judicial Venues/Courts

i. Judicial Bureau. This adjudicatory venue has jurisdiction over such things as

sale of alcohol or pseudophedrine to minors, and some statutes dealing with

conditions of employment.

2

ii. Environmental Court. This court conducts trials de novo to review the actions

of municipal boards in approving or denying permits pursuant to municipal

zoning, building and development ordinances and procedures. It also enforces the

comprehensive Vermont Land Use Law.

See www.vermontjudiciary.org

D. Vermont Federal Courts

Vermont has only 1 Federal District Court which is principally based in Burlington.

There are also courthouses in Rutland and Brattleboro. There are 3 full time Article III

judges and 1 United States Magistrate Judge. Vermont is a member of the Second

Circuit.

2. Negligence.

a. General Negligence Principles

Premises Liability.

As a general rule, an owner has a duty to use reasonable diligence to maintain its

property in a reasonably safe and suitable condition, and to remedy conditions

that he is or should be aware of. McCormack v. State, 150 Vt. 443, 446 (1988);

Wakefield v. Tygate Motel Corp., 161 Vt. 395, 398 (1994). Landlord has duty to

remedy dangerous conditions even if tenant rented with knowledge of the

condition. Favreau v. Miller, 156 Vt. 222 (1991).

i. Duty Owed to Trespasser. As to a trespasser, the property owner’s only

duty is to avoid willful or wanton conduct (intentional conduct that the

actor knows or should have known has the tendency to injure) that might

cause harm to the trespasser. However, if the trespasser’s presence is

known or should reasonably have been anticipated, then the landowner

must act with reasonable care toward the trespasser. Keegan v. Lemieux

Security Services, 177 Vt 575 (2004); Baisley v. Mississquoi Cemetery

Association, 167 Vt. 473 (1998). Vermont has NOT adopted the concept

of attractive nuisance for both adults and children. Baisley v. Mississquoi

Cemetery Association, 167 Vt. 473, 477 (1998); Trudo v. Lazarus, 116 Vt.

221, 223 (1950)

ii. Duty Owed to Licensee. Licensee can recover where his injury is the

result of active and affirmative negligence of the Licensor while the

Licensee was known to be on the premises or if there is such a hidden

defect on the property that it amounts to a trap or pitfall, and which the

Licensor has not removed, or warned the Licensee about. See Cameron v.

Abaitell, 127 Vt. 111 (1968); Lomberg v. Renner, 121 Vt. 311 (1959)

3

iii. Duty Owed to Business Invitee. A business owner owes a duty to the

public to see that the property open to the invitee is kept in a reasonably

safe condition. The owner is responsible for injuries that are caused by

conditions that the owner actually knew existed, unless the dangers were

obvious. The owner is also responsible for injuries caused by a condition

that existed long enough so that the owner should have known about it and

should have known that it could be unreasonably dangerous. Forcier v.

Grand Union, 390 Vt. 389 (1970) (citing Dooley v. Economy Stores, Inc.,

109 Vt. 138 (1937)).

iv. Business Owner Duty to Inspect for Dangerous Conditions. A business

owner must take reasonable care to know the conditions of his premises.

If he discovers a dangerous condition, he must either tahke reasonable

steps to make it safe or sufficiently warn about it for reasonable time until

it can be fixed. Forcier v. Grand Union, 390 Vt. 389 (1970) (opening

premises to public carries with it some measure of assurance of safety,

which the owner make good, by active care, if necessary); see also Smith

v. Monmaney & Spano, 127 Vt. 585 (1969) (duty extends to danger

incident to accumulations of snow and ice). “The owner of premises is not

liable to one who goes thereon as an invitee for injuries resulting from a

danger that was obvious to the latter or should have been observed in the

exercise of ordinary care.” Wall v. A. N. Deringer, 119 Vt. 36 (1955).

Comparative Fault. Contributory negligence not a bar if negligence was not

greater that causal total negligence but damages diminished in proportion to the

amount of attributable negligence. Vt. Stat. Ann. Title 12 §1036

Apportionment Among Multiple Defendants. An independent right of

contribution does not exist among tortfeasors. Murray v. J & B International

Trucks, Inc., 146 Vt. 458 (1986). Joint tortfeasors are not jointly and severally

liable, but rather are only severally liable. Vt. Stat. Ann. tit. 12 § 1036. Thus, a

joint tortfeasor is liable only for that portion of a judgment which is equal to the

proportion the tortfeasor’s fault bears to the joint tortfeasors’ combined fault.

b. Elements of a Cause of Action of Negligence

i. Duty to exercise the same care as a reasonable person would have done in

the same circumstances taking into account the foreseeable risk of injury

caused by his actions;

ii. Breach of that duty;

iii. Causation – both “but for” and proximate causation must be shown.

Collins v. Thomas, 182 VT 250 (2007); and

iv. Damages.

4

c. The “Out of Possession Landlord”

Vermont landlords may be held liable for exposing their tenants to unreasonable

risks of harm in the leased premises, whether or not they retain “control” of the

dangerous condition. Favreau v. Miller, 156 Vt. 222 (1991). In Favreau, the

Supreme Court did away with landlord immunity for injuries occurring in areas

outside of the landlord’s possession and control.

3. “Slip and Fall” Type Cases

a. Snow and Ice – The “Storm in Progress” Doctrine

The Vermont Supreme Court has not explicitly recognized this doctrine.

However, as the Chittenden County Superior Court found in Turmel v. University

of Vermont, 2004 WL 5460386 (Vt.Super.), it has been implied in at least 2

supreme court cases: McCormack v. State, 150 Vt. 443, 446 (1988)(holding that

State's normal plowing procedures satisfied its duty and did not include insuring

against snow “sloughing off” into the road); Wakefield v. Tygate Motel Corp., 161

Vt. 395, 398 (1994)(refusing to create an affirmative duty for snow removal).

b. “Black Ice”

There are no reported cases in Vermont dealing explicitly with “black ice.”

Therefore, resort would be made to the general standard of care to remedy

conditions that he is or should be aware of. McCormack v. State, 150 Vt. 443,

446 (1988).

c. Liability of Snow Removal Contractors

The Vermont Supreme Court has held that Restatement (Second) Torts §324A

applies to independent snow plow operators and permits a cause of action against

the operator as well as the property owner for negligently removing snow or

maintaining a parking lot. Perry v. Green Mtn. Mall, 177 Vt. 109 (2004).

d. Slippery Surfaces – Cleaner, Polish, and Wax

Under Vermont law, the existence of a reasonably foreseeable dangerous

condition effectively notifies the store owner of the dangerous condition, making

the critical issue whether the store owner responded reasonably to protect its

customers from the danger. Malaney v. Hannaford Bros. Co., 177 Vt. 123 (2004).

Though this case involved issues of self-service stores, such as grocery stores

where fruit may fall on the floor, the rule should apply to other reasonably

foreseeable conditions.

5

e. Defenses

That the owner acted reasonably under the circumstances (considering awareness,

timing and nature/length) of condition, and comparative fault are the standard

defenses used in these cases.

4. Liability for Violent Crime

There are no reported decisions addressing a landlord or landowner’s liability for the

violent acts of third persons (e.g. failure to provide adequate security). In refusing to find

a landlord liable in a dramshop case, the Court held that the owner's presence when the

activity occurs is a prerequisite for the owner's ability and opportunity to exercise control

over the person engaging in the activity. Knight v. Rower, 170 Vt. 96, 103 (1999).

Query whether if the landlord was or should have been aware of over-serving by the bar,

the court would have allowed a negligence claim to go forward. The same query should

apply to other violent crimes or risk of violent crime. In other words, if the landlord

knew or should have known that the condition of his property (physical or the tenants

therein) created a dangerous condition, liability could attach.

5. Claims Arising From the Wrongful Prevention of Thefts

a. False Arrest and Imprisonment

13 VSA §2576 provides:

(a) Any merchant who has reasonable cause to believe that a person has committed or

attempted to commit retail theft may detain the person on or in the immediate vicinity of

the premises of a retail mercantile establishment, affording the person the opportunity to

be detained in a place out of public view if available, in a reasonable manner which may

include the use of reasonable force and for a reasonable length of time for any of the

following purposes:

(1) To request and verify identification;

(2) To make reasonable inquiry as to whether the person has in his or her

possession unpurchased merchandise and, if unpurchased, to recover the

merchandise;

(3) To inform a law enforcement officer of the detention of the person and

surrender that person to the custody of a law enforcement officer; and

(4) In the case of a minor, to inform a law enforcement officer, and, if known or

determined, the parent or parents, guardian or other person having supervision of

the minor of his or her detention and to surrender custody of the minor to the law

enforcement officer, parent, guardian or other person.

6

(b) Any person detained under subdivision (a)(3) or (4) of this section shall, if a

telephone is available, have the right to make one local telephone call of reasonable

duration. The merchant shall advise the person detained of this right.

Civil liability will attach if the merchant acted unreasonably in effectuating the detention

as described above.

b. Malicious Prosecution

In order to recover for malicious prosecution, a plaintiff must demonstrate that a party

instituted a proceeding against the individual without probable cause, that the party

did so with malice, that the proceeding terminated in that individual's favor, and that

the individual suffered damages as a result of the proceeding. Chittenden Trust Co. v.

Marshall, 146 Vt. 543, 549 (1986).

c. Defamation

Before a defamation charge can be brought before a jury, the court must first

determine if the statement was “libel as a matter of law.” This is NOT the same as

“libel per se.” If there is any doubt in the court’s mind, then the defamatory nature of

the statement is submitted to the jury. A statement is defamatory if it is (a) false, (b)

tended to lower the person in the opinion of a substantial respectable group or tended

to deter other people from dealing with the defamed person. Fault is determined by

whether or not the person making the publication (a) knew it to be false, (b) knew it

was probably false or had serious doubts about its truthfulness, or (c) acted without

learning if it was true or false. Ryan v. Herald Assoc., Inc., 152 Vt. 275, 283 (1989);

Burgess v. Reformer Publishing Corp., 146 Vt. 612, 619 (1986). Damages are

allowable for actual harm and pecuniary loss.

d. Negligent Hiring, Retention, or Supervision of Employees

For negligent hiring/supervision/retention claims, Vermont looks to the Restatement

of Agency. Plaintiff must prove that: (1) the employer had a duty to forbid or prevent

negligent or other tortious conduct by persons upon its premises; (2) the employer

breached that duty [by failing to properly hire, negligently retaining retain or

negligently supervising]; (3) such a breach was the proximate cause of plaintiff's

injury; and (4) there was actual loss or damage as a result of the injury. Haverly v.

Kaytec, Inc., 169 Vt 350 (1999). There must be an underlying tort that resulted from

the employer’s negligence. Id.

6. Food Poisoning

Food poisoning cases would be treated as products liability cases. See O’Brien v.

Comstock Foods, Inc., 125 Vt. 158 (1965).

7

7. Indemnification and Insurance-Procurement Agreements

a. Generally.

i. Express or implied. Vermont law recognizes a right of indemnity if (1)

there is an express agreement by one party to indemnify the other, or (2)

the circumstances are such that the law will imply such an undertaking.

Peters v. Mindell, 159 Vt. 424, 427 (1992). Implied indemnfication is a

right accruing to a party who, without active fault, has been compelled by

some legal obligation, such as a finding of vicarious liability, to pay

damages occasioned by the negligence of another. There must be a legal

relationship between the indemnitors and the indemnitee. Id. Peters v.

Mindell, 159 Vt. 424, 428, 620 A.2d 1268, 1270 (1992)

ii. Indemnification for own negligence.

Vermont has declined to apply the rule that it is against public policy for

an indemnification clause to cover liability for the indemnitee’s own

negligence unless the agreement specifically applies. Hamelin v. Simpson

Paper, 161 Vt. 17 (1997). Even if the agreement specifically states that

such indemnification exists, the court will also need to consider the

relative bargaining power of the contracting parties. Furlon v. Haystack

Mountain Ski Area, Inc., 136 Vt. 266, 268 (1978)(declined to apply the

rule in that case, where the parties, a ski resort and a manufacturer of ski

lifts, were not marked by a disparity in bargaining power, and the contract

merely allocated the cost of liability insurance).

b. Insurance Procurement Agreements

A requirement to obtain and maintain insurance contained in a lease or other

agreement would be addressed under standard contract principles.

c. The Duty to Defend

An insurer's duty to defend is broader than its duty to indemnify. See Garneau v.

Curtis & Bedell, Inc., 158 Vt. 363, 366 (1992). Generally, the insurer's duty to

defend is determined by comparing the allegations in the complaint of the

underlying suit to the terms of coverage in the policy. See Cooperative Fire Ins.

Ass'n v. Gray, 157 Vt. 380, 382 (1991); Commercial Union Ins. Co. v. City of

Montpelier, 134 Vt. 184, 185 (1976). If any claims are potentially covered by the

policy, the insurer has a duty to defend. See Garneau, 158 Vt. at 366. Conversely,

where there is no possibility that the insurer might be obligated to indemnify,

there is no duty to defend. Id.

8

8. Damages

a. Introduction – the Importance of Understanding Damages

Like most jurisdictions, but for punitive damages, the purpose of damages in

Vermont is to put the plaintiff as nearly as possible in the position she would have

occupied if the tortious event had not occurred. A prevailing plaintiff is entitled to

compensation for any bodily injury and any pain and suffering, disability,

disfigurement, mental anguish, and loss of enjoyment of life experienced in the

past, or probably to be experienced by her in the future. Vt. Model Jury

Instruction 11.2.

b. Compensatory Damages

i. General Damages

Disfigurement. Disfigurement is part of the standard damages jury

instruction in personal injury cases. Vt. Model Jury Instruction 11.2.

Disability. Disability is part of the standard damages jury instruction in

personal injury cases. Vt. Model Jury Instruction 11.2.

Past and Future pain and suffering. Past and future pain and suffering is

part of the standard damages jury instruction in personal injury cases. Vt.

Model Jury Instruction 11.2.

Emotional Distress. Intentional infliction of emotional distress damages

are allowed when there has been “outrageous conduct, done intentionally or

with reckless disregard of the probability of causing emotional distress,

resulting in the suffering of extreme emotional distress, actually or

proximately caused by the outrageous conduct.” Birkenhead v. Coombs,

143 Vt. 167 (1983). For negligent infliction of emotional distress claims the

plaintiff must establish that he was in the “zone of danger” and offer proof

of actual harm or reasonable fear of immediate physical injury. Goodby v.

Vetpharm, 186 Vt. 63 (2009).

Hedonic damages. Loss of enjoyment of life, or “hedonic damages” is part

of the standard damages jury instruction in personal injury cases. Vt. Model

Jury Instruction 11.2. Failure to award such damages can be the subject of a

motion for additur. See Wetmore v. State Farm Mut. Auto. Ins. Co., 182 Vt.

610 (2007).

9

ii. Special Damages

Past medical bills. Past medical bills are recoverable and are not subject to

set-off for insurance proceeds received under the collateral source rule. Hall

v. Miller, 143 Vt. 135, 141 (1983). As of April 1, 2014, the Vermont

Supreme Court is considering whether a plaintiff is entitled to put before the

jury the entire medical bill for services, or only that amount which her

insurer paid. Heco v. Johnson Controls, Inc., No. 2013-473.

Future medical bills. Future medical bills are recoverable if the plaintiff

proves by a preponderance of the evidence that such expenses will probably

be required and given in the future. Vt. Model Jury Instruction 11.3.

c. Nominal Damages

Vermont permits Nominal Damages, but the instruction is usually given only in

instances where punitive damages are sought or statutory attorneys’ fees or

penalties are available. Vt. Model Jury Instruction 11.17.

d. Punitive Damages

In Vermont, punitive damages are allowed if the jury finds that the defendant

acted recklessly or wantonly without regard for the plaintiff’s rights, or if the

defendant showed personal ill will to the plaintiff. The acts must be characterized

as outrageous, as is frequently associated with criminal conduct. For a

corporation to be liable for punitive damages, the conduct must be “corporate

acts.” See generally Brueckner v. Norwich University, 169 Vt. 118 (1999);

Clymer v. Webster, 156 Vt. 614 (1991); Glidden v. Skinner, 142 Vt. 644 (1983).

e. Wrongful Death

i. Pecuniary Loss

An administrator of the estate of a decedent in a wrongful death action may

seek to recover the mental and physical pain suffered by the deceased in

consequence of the injury, the reasonable medical and funeral expenses

occasioned to the estate by the injury, the probable duration of life but for

the injury, and the capacity to earn money during the deceased party's

probable working life, may be considered as elements of damage in

connection with other elements allowed by law, in the same manner as if the

deceased had survived. Vt. Model Jury Instructions 11.5-11.8.

10

ii. Survivor Action

A decedent’s next of kin is entitled to seek economic and non-economic

damages on account of a wrongful death. Economic damages include the

decedent’s income that would have benefited the next of kin, and other

economic support and services to the present (i.e. trial date) and into the

future based on the decedent’s life expectancy. Non-economic damages

include grief and mental anguish to date and in the future on account of the

death, and traditional “loss of consortium” damages including loss of

society, companionship and affection. Vt. Model Jury Instructions 11.7-

11.11.