*1 273.16(f)(2)(ii) that no ad clearly establishes Section disqualifica is available after the procedure appeal ministrative case, In the Department’s the instant imposed. penalty tion from food petitioner receiving stamps to disqualify decision for relief. Accord to the Board applied issued before petitioner Al jurisdiction. Board did not have we hold that ingly, merits, do not reach the we are we therefore though forms are at best con Department’s to add that the constrained circumstances, and, peti well violate might different fusing process rights.3 due tioner’s
Reversed. v. Donald Miller
Pamela Favrеau [591 68] No. 87-085 Allen, J., Peck, Gibson, Dooley Morse, C JJ. Present:
Opinion Filed March Department’s correspondence petitioner forms waiver vari superior ously Supreme directed her to the Vermont Court and to court. Clearly, Department’s disqualify petitioner directly is not decision to appealable Department’s correspondence to this Court. The forms and also assistance, conflicting regarding legal provided information sources nature, signing matter was or and whether whether the criminal civil allegations. admission of the waiver constituted an *2 Marks, R. Burlington, Libby, Jr., and James M. Ver- William Inc., Aid, Legal mont for Montpelier, Plaintiff-Appellant. Tonelli, Miller & Randolph, Defendant-Appellee. Morse, J. brought Plaintiff suit to for her injuries recover fell apartment after she down stairs she rented from in Burlington, the defendant Vermont. The found for de- fendant, error in- plaintiff appeals, claiming affirm. structions. We
In December plaintiff and roommaté rented the apartment second and of a third floors house —from de- —the fendant. Defendant lived the first floor. interior in question led from the main apartment’s living area on the third, second floor to a on the large bedroom an area that was *3 handrail, the formerly attic. The was no had steep, headroom at top inadequate. the Defendant knew of these the problems, parties had discussed for plans renovations. Thereafter, 19,1984, stairs, plaintiff on March fell down the dis- her locating hip.
The court instructed the on the negligence landlord’s as follows:
First, you should understand that a landlord is not a guarantor tenants, of safety the of his nor is he liable for every injury that his may tenants suffer premises. on the may liable, He found however, be injuries where personal to tenants are caused by his in caring for the prop- erty. The landlord is to use required in reasonable care upkeep of his and to apartments in keep them reasonably for his safe condition tenants. Failure to use reasonable in care of upkeep may the property be negligence, which the can be held liable if a injured. tenant is
Negligence doing is of some act which a reasonably do, prudent person would not or the failure to do something which a reasonably person do, prudent would when prompted by considerations which ordinarily regulate words, failure to is, It in other affairs. of human conduct manage- in the the circumstances care undеr ordinary use care care is that Ordinary or person property. of one’s ment in manage- exercise persons reasonably prudent which injury to them- to avoid affairs order of their own ment or of person property or to the property, or their selves others. house, negligence an apartment here to applied
As the prop- of ordinary upkeep care lack of means the ten- injury of to unreasonable risk to avoid an order erty ants. to repair to steps is take reasonable required
A landlord is had notice. He for which he has dangerous condition any which, any dangerous to know of condition required also care, learned he would have of reasonable the exercise be- to know of all conditions that required He is not about. time, ordinary lack from time absent come to dangerous Where, of the condition of his property. care knowing course, to the tenant acknowledged the landlord has condition, may you consider dangerous existence of of notice. as evidence notice, with due landlord has should diligence
Where a or safety ten- dangerous to have known a condition ants, carе to required ordinary prop- he to use make is, That must as steps safe. he take such reasonable erty take within a necessary problem are care of reason- able time. prompt so measures are
Some conditions are serious not can to be taken. Others are so serious and required them. What reason- get await convenient moment upon particular able will the circumstances depend case.
Therefore, following each of the plaintiff prove must *4 by of her preponderance essential elements case evidence:
1. That the condition thé under considera- stairway tion was unreasonаbly dangerous; knew,
2. That Donald Miller or with the exercise known, care should have that there a dan- reasonable stairway leading respect condition with to the gerous floor; third he steps
3. That failed to within a take reasonable rea- appropriately sonable time make them safe the ten- ants;
4. That the dangerous unreasonable condition was the injuries to proximate plaintiff. cause of well to might by It be define what we mean the term “un- reasonably dangerous.” Something unreasonably is dan- gerous tendency when it cause injury beyond has ordinarily to be degree expected reasonably prudent user. A knowledgeable stairway unreasonably dan- its gerous when likelihood of causing injury beyond ordinarily be and which expected, should not be expected safely to be negotiated by use of ordinary care. There has been evidence introduced here concerning the Minimum Burlington Housing requires Code. The Code stairways rental apartments kept to be a safe condi- tion. Those that are unsafe do not with comply the Code. It will you not, be for the jury to determine whether or on the here, presented evidence question complied (cid:127)with If you not, the Codе. find it did you then may such consider fact as evidence that the stairs were unrea- sonably If dangerous. the defendant knew or should have known Code, that the stairs were in violation and he failed to take steps reasonable to bring them into compli- ance, you may consider such fact as evidence of negligence.
Old often buildings have been modified for uses different than what was originally intended. Apartments old build- ings often are not as convenient or as safe inas modern Where buildings. a tenant voluntarily rents an apartment with that it has knowledge a less than convenient stairway which some requires аdditional care to negotiate, the ten- ant if he complain cannot or she fails to use the care re- quired to descend the successfully. stairs
Where the unreasonably however, stairs are dangerous, and cannot be negotiated safely ordinary care ex- of one pected living apartment, such an then the tenant is not held to have assumed the risk of injury that is caused by the dangerous unreasonably condition. will It be for you the jury to determine from the evidence whether the stairs here were unreasonably dangerous. *5 were jury that the instructions deficient complains
Plaintiff First, objection, respects. plaintiff’s in over general two that landlord for jury liability refused to instruct the trial court implied be based a breach of the injury upon could personal negli- of the landlord’s warranty habitability, regardless Second, on jury claims that instructions plaintiff gence. argues she that the inadequate. Specifically, were jury to find that by permitting plaintiff court erred assumed an old stairway by renting apartment the risk of the defective condition; stairway’s of the She claims further knowledge into that dan- jury believing the instructions misled the require that are “not so serious” do not gerous conditions maintains that repair by Finally, plaintiff the landlord. prompt with an code es- noncompliance applicable housing evidence of case of the court instructed prima negligence; tablishes a facie of the code could be used only housing that a violation the landlord’s negligence. as evidence of I. case, in the outset that the instructions this We note at in ordinary a to exercise care requiring upkeep landlord the rental in the property, represent significant development tenants, common law of landlords because landlords had liability any injury been immune from for to a tenant occurring possession an area not within the landlord’s and control. Thus, 585, 588, Monmaney, Smith v. 127 Vt. (1969), we wrote: in ascertaining responsibility
The determinant issue landlord], negligence [by arising from a condi- dangerous land, possession tion on the and control of the area which gives rise to It injury. duty landlord’s to exercise reasonable care to maintain entrances and re- passageways tained his control for the common use of tenants in multi- ple dwelling premises. omitted.)
(Citations
Brown,
20, 25,
See also Waite v.
(1973) (“The
that unless the
parties agree
porch
possession
were
and control of the
.under
land-
duty
lord there was no
on the landlord to еxercise reasonable
them.”).
care maintain
As
present
the stairs
case were
leading
living space
inside the
from
the sec-
apartment,
floor,
on the
ond floor of the house to the bedroom
third
immunity
would have
under the old law.
enjoyed
properly
The trial court here
shunned the common-law
treatise,
As stated
“it is no
categories.
leading
part
*6
law of
to exonerate
defendant
be
general
negligence
simply
cause the condition attributable to his
has passed
2
beyond
injury____”
his control before it causes
F. Harper &
(1956).
James,
27.16,
§
F.
The Law of Torts
at 1509
The New
Hampshire Supreme Court
1973 called the rule of landlord
immunity
anomaly, manifesting
tort
an
“untoward favoritism”
Ross,
388, 391,
528,
v.
N.H.
Sargent
to landlords.
308 A.2d
(1973).
“We think that now is the time for the landlord’s
immunity
limited tort
relegated
history
to be
to the
books
396,
where it
properly belongs.”
more
Id. at
Hilder, trend, following national see Restatement (Second) Property, ch. introductory (1977), note sought recast the terms of law. landlord-tenant landlords and tenants between
Historically, relations
these tra-
property.
the law of
Under
by
defined
have been
a lease was viewed
concepts,
property
law
ditional common
relationship
The
between
of real
conveyance
property.
aas
the doctrine of cav-
was controllеd
and tenant
landlord
is,
of the de-
lessee;
possession
the tenant
took
eat
disrepair.
state of
of their
irrespective
premises
mised
possession
was to deliver
only covenant
landlord’s
no
to render the
duty
landlord was under
. . . The
tenant.
was an
covenant to
express
unless there
habitable
premises
written lease.
repair
(citations omitted). Hilder
discarded
a con-
essentially
that a lease is
which
approach
recognizes
new
and the tenant wherein
between the landlord
tract
in hab-
premises
and maintain the demised
to deliver
promises
rent for such
promisеs
pay
and the tenant
itable condition
158-59,
A.2d at 208 (quoting
Id. at
premises.’”
habitable
184,198,
v.
363 Mass.
Housing Authority
Hemingway,
Boston
*7
(1973)).
“in
831,
that
the rental of
N.E.2d
We concluded
implied warranty
unit an
exists
any
dwelling
residential
written,
lease,
that
landlord will deliver
whether oral or
maintain, throughout
period
tenancy, prem-
over and
safe,
159,
ises that are
clean and fit for human habitation.” Id. at
only notify
We
that
concepts
from
of tort and
personal injury,
neg
suit for relief
straightforward way
law
the more
describe
ligence
provide
parties.
duties and liabilities of the
Where
ten
respective
ought
she
recover from the
premises,
ant leases substandard
consequential
her excess rental
hеr
dam-
payments,
and,
instances,
in certain
“annoyance
and discomfort”
ages
Id. at
We contention the court erred by refusing jury they to instruct find might defendant injuries liable for without plaintiff’s considering negligence. The question-remains whether the court’s charge was proper.
III. In instructions, reviewing adequacy we piecemeal.” State v. look at “the as a whole rather than charge (1989). Valley, 380, 398, “If as a whole ‘breathes the true and doctrine of spirit the law’ and fair ground say misled, there is no has been there is *8 1986, legislation applicable In Vermont enacted to leases entered into or 1, 1986, July providing renting renewed aftеr contract remedies to tenants dwellings. statute, §§ allowing 4457-4459. substandard V.S.A. The while damages repairs to tenant recover the landlord “fails to make within a noncompliance materially time reasonable and the affects health and 4458(a), safety,” § appear contemplate personal does not to an action for injury. Norton, State v. (quoting Id. no error.” (1986)). view, court’s instruction on In our the whole, correctly. the law viewed as a states negligence, not be absolved that a landlord should contends Plaintiff If We an agree. “assumes the risk.” a tenant liability because of in the apаrtment, exists condition unreasonably dangerous correct the condition steps must take reasonable premises knowledge rented the not the tenant whether or by negli conduct is measured The tenant’s the condition. of of the risk. standards, assumption of not on doctrine gence correct princi here stated the jury charge § 1036. The 12 V.S.A. clearly repeatedly. and ple however, paragraphs final two
Plaintiff, insists that rule and intro- contradict charge general from the quoted The court disagree. the risk.” We “assuming concept duce Thus, key charge. “[something terms its to define sought to сause in- tendency it has a when unreasonably dangerous a reasona- expected by to be ordinarily jury beyond degree degree danger user.” What knowledgeable and bly prudent This, course, de- stairway? of a “ordinarily expected” to be stairs, to an at- leading on the circumstances. Where pends headroom, bedroom, short of visibly steep tic are travel them a some- would expect careful user reasonably the stairs to a hotel manner than she would what different unreasonably dangerous though If not lobby. they are —even the landlord can- wanting are headroom —then thеy steep Whether are unrea- injuries. they for the tenant’s not be liable The question jury. paragraph is a for the last sonably dangerous principle. states this quoted instructions may assume the risk of that a tenant given impression not conditions. treasonably dangerous an is likewise at- buildings appropriate The reference to old of art and flesh give content terms tempt role. A find condition jury might particular for the its out circumstance, a brand new unreasonably dangerous one to be another, an old house renovated where it would not building, Ross, the Sargent leading Hamp- v. New apartments. for rental should have been followed plaintiff argues case which shire here, principles the trial court states: “General closely by more injuries upon persons ordinarily impose liability of tort law *9 failure to care caused their exercise reasonable under all the 113 N.H. at at 530 (emphasis circumstances.” added). is age The of the house one of the circumstances. isSo fact stairs led an attic that the to bedroom. plaintiff
We with that the court’s a agree language —“Where voluntarily an apartment knowledge tenant rents it that requires a stairway has less than conveniеnt which some addi- negotiate, tional care to cannot complain tenant he or she fails to the care to use descend stairs required suc- unfortunate, cessfully” but context the overall —is charge it is not error. It is a transition from the charge on the liability charge landlord’s to the on contributory negligence, Ross, not which we have quoted.2 Sargent See v. 113 N.H. at (“The at 533 obviousness of the risk is primarily relevant to the basic a plaintiff’s contributory issue of negli- gence.”). language merely begins The to explain that the ten- ant’s own must be considered in the final negligence account. quibbles
Plaintiff оver the use of the term “unreasona bly that a dangerous,” arguing duty the landlord has to remedy staircase, all dangerous Any conditions. no matter how well de signed, however, has inherent dangers, and a landlord is liable only for that are unreasonably those as dangerous, that term was defined in the charge. court’s
Plaintiff also complains the sixth language para graph charge, of the distinguishing serious conditions from Here, ones “not so serious.” We find no error. the court sought give content “reasonable steps” required the land lord A previous broken paragraph. step, example, should be reрaired “promptly”; flaw the design such as a ceiling requires low more planning time and to repair. The merely required, instructed, as the court “take such reasonable are steps as to take necessary care of the problem within reasonable time. . . . isWhat reasonable will depend upon of the particular circumstances case.” portion That appeal. jury of the in this not issue never because, negligence tenant’s own interroga considered the on the verdict form, tory jury question: you answered “no” to the first “Do find that negligent negligence proximate was that his wаs a defendant cause injuries?”; plaintiff’s required proceed of the it was not further. in its the court erred that contends
Finally, plaintiff of applicable of a violation evidence import discussion say that the the court to wished Plaintiff codes. housing found, subject violation once presume should told the instead The court rebuttal. to defendant’s one, as evi violation, if found they consider a code may they Under unreasonably dangerous. were the stairs dence *10 jury instruct the however, must not 301(c)(3), the court V.R.E. (“existence presumed of the negligence of presumption burden” fact”) production met his “has the defendant when support finding to (“burden evidence sufficient producing of 301(a)). exist,” The de V.R.E. does not fact presumed that cor and the court of production, his burden here met fendant reference by making not jury instructed rectly 301(c)(3). V.R.E. presumption,
Affirmed.
Peck, only. I the result J., concur concurring. Dooley, rejection warranty J., I of dissenting. concur I not decide whether would injury damages. theory personal of We have not had the benefit brief- the control test. to abolish that parties agreed on that issue since argument ing is the law of this case. How- unnecessary and that control evеr, I that the instructions contain two substantial jury believe standards to this case. negligence errors the application trial. I would reverse for a new Accordingly, that, in order to show jury neg- The trial instructed the court landlord, prove must that part plaintiff on the of the ligence stairway under consideration was unrea- “the condition of the “stairway that a is unrea- sonably dangerous.” The court stated causing injury when its likelihood of sonably dangerous not ordinarily to be and which should be beyond expected, safely by ordinary the use of care.” negotiated to be expected old are modified and buildings The court that when explained “as convenient or into not be as they may converted apartments court, to when buildings. According safe” as more modern knowl- buildings these older with the tenant chooses to rent than has a “less convenient building edge to requires negotiate, which some additional care tenant use complain required or she fails to the care cannot he added.) In successfully.” (Emphasis the stairs such a descend effect, case, in risk injury” posed by the tenant “assumes the stairway. the hazardous states, we reverse majority
As the do not for errors a jury it long spirit as as breathes the true and doctrine of fair ground say is, law and there no was misled. It however, the the court duty charge fully and correctly every indicated the evidence. upon point See Nauceder v. (1968). Howard, The charge a confusing negligence here contains and contribu- merger tory negligence concepts, assumption of risk. including- On confusion, top significant there are two deviations from well-established law. Accordingly, there are more grounds than fair to believe that the could have been mis- led. first in charging error was that the of a age building was which the degree
a factor lowers of care that a landlord must *11 The states exрlicitly exercise. in apartments old do buildings apartments not have to be as safe as in new build- majority accepts this ings. specific, unique emphasis the age building simply as an of application the principle that care in light reasonable is determined of “all the circum- stances,” Ross, 391, v. quoting Sargent 388, 113 N.H. (1973). 528, 530 The more quote Sargent relevant from comes in opinion: later the “Alandlord act must as a reasonable person under all of the including circumstances the of likelihood injury others, the of probable injuries, seriousness such and the 397, burden of reducing avoiding or the Id. 308 risk.” at A.2d at 534. law This statemеnt of the has generally accepted. been See (D.C. Restaurant, Inc., 97,100 Smith v. Arbaugh’s 469 F.2d Cir. 1972) (“A landowner must act as a in reasonable man maintain- his in ing property reasonably safe condition in of view all the circumstances, including others, the of injury likelihood the injury, avoiding risk.”); seriousness and the burden (Alaska 1982) (landowner State, 205, Moloso v. P.2d 644 219
235
act as reasonable
“‘in
person
maintaining property
must
circumstances,
view of all the
including the likelihood of injury
others,
injury,
the seriousness of the
and the burden on the
risk’”)
parties of
v.
respective
avoiding
(quoting
City
Webb
(Alaska
Sitka,
1977));
When one considers the of a age building relation to these factors, basic one can see that it cut inway can either specific If cases. increase the consequences age likelihood of in- jury to tenants and likely seriousness of an injury, increase and these increased risks are an not offset increаse avoiding injury, burden of then the landlord might have to safety If, take additional in an precautions older building. case, another the increased risks are more than outweighed by burdens, the increased the landlord not have might to take as many safety as in a In precautions newer building. case in- an volving older an building, always instruction that age re- duces landlord’s responsibility respect to safety is simply wrong clearly prejudicial to the tenant.
Even if general principles of landlord and tenant law were in conflict not with the court’s I charge, believe it cannot stand in light of the applicable code. housing requires The code prem- safe, ises to be obviously establishing standard of care. It does not provide older can buildings be less safe or unsafe. Thus, the charge on the age of the conflict building with the *12 charge on violation of code, the municipal housing and the jury way had no to reconcile the conflict.
The major in second defect the is charge acknowledged by the In majority. part of the charge ostensibly defining de- fendant’s standard of trial liability, the court added language
236 an apart- rents “voluntarily a tenant who that stating
clearly as- stairway” convenient a “less than it has knowing ment” the care “fails to use tenant injury risk of sumes I find two errors successfully.” the stairs descend required of the risk assumption “secondary” a It adds statement. this of the risk of assumption have held defense, we although See contributory negligence. an aspect type simply this 304, 398, 293, 404 390 A.2d 136 Vt. Corp., Sunday v. Stratton is irrel- language of risk (1978). assumption “use of Accordingly, negli- on jury comparative in a instruction confusing evant 142 Vt. Id.; Hospital Corp., Perkins v. Windsor see also gence.” (1982) (use of risk 810, assumption 310, 305, to a were entitled “parties error because reversible language confusion”). and possible free from irrelevancies the standard for Farther, directly undercuts language this case. As one trial court this by the liability adopted landlord immunity: landlord abandoning stated court rule has been to discour- of this archaic result practical knowl- landlord with of rented repairs premises.... [A] age it. And repair a defect has less incentive edge of lease, funds, limited tenant, has a short-term who often defects, will not be such experience dealing limited work a he will soon be place pay expensive inclined to leaving. Mass, Garwacki, 168, N.E.2d at 1049. The at v.
Young that a tenant who confronts trial court’s import make it оr use building in an old must safe stairway an unsafe its unsafe condition. despite care to it extraordinary negotiate essence, in the situation where the puts us back language In little, if because the tenant any, liability accepts has directly rejected We by renting apartment. risk Dutra, v. Beck theory
(1971), not assume the risk of where we held that a tenant does stairway a because use of injury dangerous from act involving action ... and not deliberate was a “necessitous within of the doctrine.” meaning choice voluntary the error majority acknowledges assump- Although that it does not warrant rever- risk it finds language, tion contributory merely it was transition because sal contributory did not find and the discussion *13 written with The instructions here were negligence. appropri- they subtitles to what were guide considering. ate headed, at a section language precedes distinctly issue and there is no indication that it “contributory negligence,” part a transition to that section or was of the contributory neg- it ligence placement, very possible discussion. Because its that the dealt of the risk as assumption part its that defendant was not without negligent, determination having contributory negligence. reached the issue of Even the as- sumption language of the risk were included with the contribu- discussion, it tory negligence confusing jury, would be as Hospital Corp.. Windsor we held not a This is ease where the whole, understandable, taken as a charge, clearly though not worded as the appealing party desires. On the contrary, the correctly does not state the law and is confusing.
I would reverse and remand for a new trial. I am authorized to state that Chief Justice joins Allen this dissent. Dodge
Deborah A. Wade H. v. Richard [591 77] No. 89-315 Allen, C.J., Gibson, Dooley Morse, JJ., Barney, (Ret.), Present: and C.J. Specially Assigned
Opinion Filed March J. Eric (On Ben, Anderson M. Patricia Law Clerk Fitts, Olson, Brief), Carnahan, Anderson & Bump, Brat- tleboro, for Plaintiff-Appellee.