Demag v. Better Power Equipment, Inc.
102 A.3d 1101
Vt.2014Background
- Plaintiff Rodney Demag routinely picked up and returned vehicles for BPE’s general manager and wife from BPE’s parking lot over ~10 years; he parked in a habitual spot next to their car when performing that service.
- On the day in question Demag parked, spoke briefly with the general manager, returned to his car, stepped, and fell into an uncovered storm drain that had been dislodged and buried in a nearby snowbank.
- BPE (by lease) was responsible for premises maintenance; neither BPE nor its employees knew the drain cover had been dislodged before the accident.
- Evidence showed prior awareness of a rocking drain cover, some concrete deterioration, and that plow drivers sometimes checked for dislodged covers; plow activity likely dislodged the cover by frost heave.
- Plaintiff sued for negligence; the superior court granted summary judgment to BPE after finding Demag was a licensee, not an invitee, and thus owed only protection from active negligence.
- The Vermont Supreme Court reviewed de novo and reconsidered the governing duty standard for lawful entrants on another’s land.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Demag was an invitee or licensee (controls duty) | Demag: he was a business visitor/ invitee entitled to reasonable care | BPE: Demag was a licensee entitled only to protection from active negligence | Court did not rest on status; abolished invitee/licensee distinction for lawful entrants and applied ordinary reasonable-care standard |
| Whether the licensee/invitee distinction remains good law in VT | Abolish or expand invitee status so lawful visitors get reasonable care | Maintain traditional tripartite classification and lower duty to licensees | Court abolished the distinction as to lawful entrants and imposed a single duty of reasonable care |
| Whether summary judgment was proper under the traditional licensee standard | Even under licensee rule, there were factual disputes making summary judgment improper (alternative) | Under licensee rule, no duty to inspect so summary judgment proper | Court (having changed the law) found factual disputes about foreseeability raising triable issues under reasonable-care standard; reversed and remanded |
| Scope of change: commercial owners only? | Plaintiff urged applying to all lawful entrants | BPE implicitly urged limiting change; maintain categories | Court applied the single reasonable-care duty to all lawful entrants (not addressing trespassers); land type may be considered in reasonableness analysis |
Key Cases Cited
- Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (U.S. 1959) (refused to adopt invitee/licensee distinction in admiralty; endorsed single reasonable-care duty)
- Rowland v. Christian, 443 P.2d 561 (Cal. 1968) (abolished status distinctions; emphasized reasonable care and modern social values)
- Poulin v. Colby College, 402 A.2d 846 (Me. 1979) (Maine adopted reform abolishing distinctions; neighbor-state precedent)
- Mounsey v. Ellard, 297 N.E.2d 43 (Mass. 1973) (Massachusetts precedent adopting reasonable-care standard for visitors)
- Farnham v. Inland Sea Resort Properties, Inc., 824 A.2d 554 (Vt. 2003) (Vermont precedent on summary-judgment review and premises-liability analysis)
- Cameron v. Abatiell, 241 A.2d 310 (Vt. 1968) (discussed historical origins of status classifications in Vermont)