Lead Opinion
¶ 1. Plaintiff Joseph LeClair appeals from the trial court's grant of summary judgment to defendant Hector LeClair, plaintiff's grandfather, in this negligence action. Plaintiff argues that the trial court erred by concluding that defendant owed him no duty and that the court abused its discretion by denying his motion to amend his complaint to add a new liability theory. We reverse and remand.
¶ 2. Defendant is experienced in construction and has developed several properties around the state. In 2011, defendant approached his son, Ricky LeClair, who also worked in construction, about replacing the roof on the building in which defendant has his office. Defendant's son, Ricky, then approached his twenty-seven-year-old son, plaintiff, about working on defendant's roofing project. Plaintiff had also worked in construction and was an experienced roofer, but was unemployed at the time. According to plaintiff's deposition testimony, his father told him he would make "good money" for working on defendant's roof. Plaintiff's father supplied the tools, equipment, and materials for the roof job.
¶ 3. On October 7, 2011, plaintiff arrived at the property with another person to work on the roof. They had already removed the shingles from the roof, leaving only the underlayment, which on that October morning was covered with dew and early frost. Plaintiff claims that he initially decided not to work on the roof because *745the frost made it slippery but changed his mind when defendant arrived at the property and ordered him to begin work. According to his complaint, plaintiff climbed a ladder onto the property's porch roof to reach the second-story roof of the house. Plaintiff fell from the second-story roof and landed on the paved driveway below, sustaining serious and permanent head and spinal injuries.
¶ 4. Plaintiff brought this action against defendant for injuries sustained in his fall. His original complaint, filed in August 2014, included a single negligence claim, in which he alleged that defendant owed a duty of reasonable care in the design, condition, and maintenance of his premises to those lawfully on his property; that the frost-covered roof presented an unreasonable risk of harm; and that defendant breached his duty of care by demanding that plaintiff work on the roof when it presented an unreasonable risk.
¶ 5. The parties agreed by stipulation to conclude all discovery by November 13, 2015, and to present any legal challenge to liability by motions for summary judgment to be filed on or before December 31, 2015. Defendant filed a motion for summary judgment on January 4, 2016. He argued that he had no duty to warn plaintiff not to go on the frosty roof because plaintiff knew the roof was not safe, that plaintiff assumed the risk of injury by knowingly going on the slippery roof, and that plaintiff's injury resulted from the nature of plaintiff's work and not the condition of the premises. In making these arguments, defendant relied primarily on the allegations in plaintiff's complaint that plaintiff saw that the roof was covered with frost when he arrived and decided to delay starting work until the frost melted, that defendant ordered him to commence work immediately even though it was dangerous to work on the roof at that time, and that plaintiff commenced work as ordered to please defendant.
¶ 6. In his January 29, 2016 response to defendant's motion for summary judgment, plaintiff asserted that the motion attempted to characterize the arrangement to replace the roof as a traditional arms-length transaction between an otherwise uninvolved homeowner and the employee of a contractor. He contended that, instead, the evidence developed during discovery indicated that defendant was the ultimate employer on the roofing job and directed plaintiff with regard to how to perform that work. Plaintiff argued that the instant action arose from premises liability in the sense that defendant owned the property, which was also the work site, and that the property was in an unsafe condition for doing work on the roof. According to plaintiff, defendant's status as the ultimate employer on the project placed upon him a duty to provide a safe workplace for plaintiff. Plaintiff argued that he was not precluded from suing defendant because defendant's only disclosed *746insurance excluded workers' compensation coverage and thus defendant was not entitled to the exclusive remedy protections of workers' compensation law. Plaintiff further argued that defendant breached his duty as a landowner because he increased the foreseeable risk of harm by demanding that plaintiff work on the frosted roof.
¶ 7. Three days after filing his response to defendant's motion for summary judgment, plaintiff filed a motion to amend his complaint to add distinct counts entitled premises liability and negligence/safe workplace. On February 12, 2016, defendant filed an opposition to plaintiff's motion to amend, as well as a memorandum in response to plaintiff's response to defendant's motion for summary judgment. In his response, defendant directly addressed plaintiff's "employment claim," as well as the premises liability claim.
¶ 8. On March 25, 2016, the trial court granted defendant summary judgment on plaintiff's premises liability claim based on its conclusion as a matter of law that defendant did not breach any duty imposed on landowners. The court reasoned as follows:
There is no dispute that Grandson was completely aware of the dangerous condition on the roof, and went on the roof anyway. Under such circumstances, there was no duty to warn. Restatement (Second) of Torts § 343 (1965) (Possessor of land is liable for a dangerous condition only if he "should expect that [the invitee] will not discover or realize the danger"). Nor has Grandson pointed to any authority for the position he is really positing: that there is a duty not to tell someone to do something they already know is dangerous. Nor is there any duty to clear ice off a roof to protect invitees. There being no duty, there can be no negligence.
The court also denied plaintiff's motion to amend his complaint, stating that: (1) it would be unfair to require defendant to respond to an entirely new claim after he had already filed a motion for summary judgment, particularly considering that the case had been pending for eighteen months; (2) the amendment was not merely a clarification of the original complaint, but rather a completely different theory of the case based on different facts; and (3) the amendment would be futile because plaintiff had conceded that any agreement to complete the roof was between him and his father, and not him and defendant.
¶ 9. On appeal, plaintiff first argues that the trial court erred by finding that defendant had no duty with respect to his premises liability theory. He contends that the facts alleged in the complaint and that emerged through discovery presented a jury question as to whether he breached his duty to exercise reasonable care in demanding that plaintiff get on the frost-covered roof. He acknowledges that defendant had no duty to warn plaintiff of the open and obvious condition of the roof, but asserts that, by demanding that plaintiff go onto the frost-covered roof, he breached his duty of preventing the risk of foreseeable harm to plaintiff. As for any assumption of risk on plaintiff's part,
¶ 10. Given the circumstances of this case, we agree that the trial court *747erred in concluding, as a matter of law on summary judgment, that defendant owed no duty to plaintiff. See Burgess v. Lamoille Housing P'ship,
¶ 11. Here, in considering the question of duty, the trial court was correct in examining plaintiff's premises liability theory under § 343 of the Restatement (Second) of Torts
*748Restatement (Second) of Torts § 343 (1965) (emphasis added). The critical criterion in this case is the second one, particularly whether defendant, under the circumstances, should have expected that plaintiff would not protect himself from the danger that was open and obvious to both of them.
¶ 12. Section 343"should be read together with § 343A, which deals with the effect of the fact that the condition is known [or obvious] to the invitee." Restatement (Second) of Torts § 343 cmt. a. In relevant part, § 343A provides that "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts § 343A (emphasis added). The scope of the section is explained more fully in comments e and f:
e. In the ordinary case, an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers he will encounter if he comes. If he knows the actual conditions, and the activities carried on, and the dangers involved in either, he is free to make an intelligent choice as to whether the advantage to be gained is sufficient to justify him in incurring the risk by entering or remaining on the land. The possessor of the land may reasonably assume that he will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so. Reasonable care on the part of the possessor therefore does not ordinarily require precautions, or even warning, against dangers which are known to the visitor, or so obvious to him that he may be expected to discover them.
....
f. There are, however, cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger. In such cases the possessor is not relieved of the duty of reasonable care which he owes to the invitee for his protection. This duty may require him to warn the invitee, or to take other reasonable steps to protect him, against the known or obvious condition or activity, if the possessor has reason to expect that the invitee will nevertheless suffer physical harm.
Id.§ 343A cmt. e, f (emphasis added).
¶ 13. In light of the above law, we conclude that the trial court's determination that defendant had no duty as a matter of law towards plaintiff on this summary *749judgment record was erroneous. The facts of this case, as alleged, do not preclude a finding of duty under § 343 and § 343A, as set forth above. The key alleged fact in this case is that defendant, in a position of authority vis-à -vis plaintiff, ordered him to go onto the frosted roof despite the obvious danger involved. A jury could conclude that, in ordering plaintiff to climb onto the roof despite its dangerous condition acknowledged by both defendant and plaintiff, defendant should have anticipated that the condition of the roof presented an unreasonable risk of harm to plaintiff. Cf. Wisdom, 410 F.Supp.2d at 346 (concluding that genuine issue of material fact existed as to degree of parties' respective negligence in plaintiff tripping over clothing rack in store because even though "the danger posed by the rack was obvious as a matter of law[, plaintiff] has established the existence of disputed facts sufficient to require a jury finding as to whether [defendant] should have anticipated the harm despite its obviousness"); Dos Santos v. Coleta,
¶ 14. The dissent asserts that this is not a premises liability case at all because the claim is not tied to defendant's status as a landowner and does not rest on any evidence or argument that defendant is liable for an unreasonably dangerous condition on the premises. According to the dissent, plaintiff, as a professional roofer, is in a better position than defendant to assess the danger from the frost-covered roof and either eliminate or avoid it.
¶ 15. The record does not support these assertions. Plaintiff made a viable premises liability claim based on his contention that, by directing him to encounter a dangerous condition on defendant's property, defendant should have anticipated that he would encounter that dangerous condition and might be injured as a result. The dissent asks what defendant was supposed to do to prevent the danger to plaintiff. The answer is as open and obvious as the dangerous condition-not demand that plaintiff, who had decided not to go up on the roof because of its dangerous condition, encounter the dangerous condition on defendant's property.
¶ 16. In support of its position that defendant is entitled to judgment as a matter of law on the premises liability claim, the dissent suggests, incorrectly, that there was no dispute as to plaintiff's superior knowledge of the danger presented by the frost-covered roof. Plaintiff asserted that defendant himself was an experienced homebuilder; that defendant directed him daily on the roof replacement project; and that on the day of the accident when plaintiff indicated he did not want to go up on the frost-covered roof, defendant directed him to hose it down and then go up on the roof. Viewing the evidence most favorably to plaintiff as the nonmoving party, a jury could have concluded that defendant, as plaintiff's grandfather and customer,
¶ 17. The dissent correctly states that this is not a case where plaintiff's attention may have been distracted from the dangerous condition,
¶ 18. The dissent cites three cases in support of its position, none of which have much relevance here. The two older Missouri cases involved situations where the undisputed evidence demonstrated that the defendant commercial landowners had no direct control over the work on their property by the plaintiffs, one of whom was an independent contractor and the other an employee of an independent contractor. See Kelly v. Dairy Queen Enters., Inc.,
*751Armstrong v. Cerestar USA, Inc.,
¶ 19. Far more relevant to this case are two longshoreman cases from the Second Circuit Court of Appeals. Under the then-current applicable workers' compensation act, longshoreman could sue ship owners for negligence, and the federal courts applied § 343A to address such claims. In the first case, Napoli v. Hellenic Lines, Ltd.,
¶ 20. Even more similar to our case is Lubrano v. Royal Neth. S.S. Co.,
¶ 21. Here, the evidence was disputed as to the extent defendant directed plaintiff's work and how plaintiff was to be compensated. Depending on the evidence presented at trial on these and other disputed facts, a jury could conclude that defendant breached a duty to protect plaintiff from encountering an open-and-obvious dangerous condition on his property by demanding that he encounter the dangerous condition, in which case he should have anticipated that defendant might be injured as a result of the condition. See
¶ 22. We next address whether the trial court abused its discretion by denying plaintiff's motion to amend his complaint. The proposed amended complaint alleged two additional negligence counts. The first of these alleged that defendant "was negligent in ordering Plaintiff to work on the roof at the property despite the danger posed by the condition of the roof and Defendant used his position of authority and influence over Plaintiff to induce Plaintiff to comply with Defendant's order to work on the roof despite Plaintiff's reservation about doing so." The second additional count alleged that defendant was plaintiff's employer and, as a result, had a duty to provide a safe place to work, which he breached. It also alleged that defendant did not have workers' compensation insurance coverage. Because the first additional count raises essentially the same premises liability claim that was in the original complaint, and further because the trial court ruled only on the substantive validity of the second additional count, we limit our analysis to the latter count.
¶ 23. Although the theory that defendant was plaintiff's employer was formally introduced in plaintiff's motion to amend, its genesis lies in defendant's answer, discovery, and motion for summary judgment. As we noted above, defendant pled as affirmative defenses that there was no privity between plaintiff and defendant and that the conduct of plaintiff's father, Richard LeClair, was a "supervening efficient cause of the accident." Defendant used his pretrial discovery to explore the employment relationships among plaintiff, plaintiff's father, and defendant. These defenses were fleshed out in the motion for summary judgment. In his first ground for summary judgment, defendant argued that plaintiff was his father's employee, not his grandfather's. On that basis, defendant argued: "[a]s owner, Defendant had no duty to plaintiff to assure a safe work place." In his fourth ground, defendant argued that even if he encouraged plaintiff to work on the frosty roof, as plaintiff complained, such encouragement created no legal duty.
¶ 24. Plaintiff's opposition to summary judgment focused on his new argument that defendant was his "ultimate employer" and as such he had a duty to provide a safe workplace. Plaintiff recounted defendant's characterization, in his summary judgment motion, of the roof-repair job as an arms-length transaction that cast defendant as an uninvolved homeowner, plaintiff's father as contractor, and plaintiff as contractor's employee and argued that his complaint included facts giving rise to the question of who employed plaintiff. Plaintiff stated that his original negligence action included an unsafe workspace claim and should not be limited to premises liability. He argued: "Defendant was on notice of this claim since Defendant has specifically defended against the claim that Plaintiff was his employee in the present motion." In connection with his response, plaintiff specifically argued that summary judgment was unavailable because there were disputed issues of material fact on the issue of whether he was the employee of defendant.
¶ 25. Plaintiff filed his motion to amend his complaint less than a week after filing his response to defendant's motion for summary judgment. Defendant's opposition to plaintiff's motion to amend argued that the original complaint included only general negligence and premises liability claims, and permitting plaintiff to add an employment claim would prejudicially change the nature of the action. Defendant also argued that the record included no *753support for plaintiff's claim that he was defendant's employee and that the amendment was therefore frivolous.
¶ 26. On March 25, 2016, the trial court granted defendant summary judgment and denied plaintiff's motion to amend on two grounds. First, it held that the motion to amend came too late because the case had been pending for eighteen months, discovery had been concluded, there was no good cause for the delay, and "the new cause of action is actually entirely contrary to his original claim, and asserts a different theory of the case based on different facts, apparently designed to avoid the clear result of the summary judgment motion." Second, the court held that plaintiff's claim that defendant was his employer "could not succeed" because the allegation in the amended complaint "still says only that [plaintiff] ... was 'expecting' payment from [defendant] ..., but not that they had any agreement or contract at all" and plaintiff "conceded that any agreement was between [defendant] ... and Ricky."
¶ 27. We first address the prejudice ground underlying the trial court's decision to deny plaintiff's motion to amend his complaint. We review denial of a motion to amend a pleading for abuse of discretion. Lillicrap v. Martin,
¶ 28. Applying this liberal standard, we have summarized the limit on the trial court's discretion to deny a motion to amend a pleading as follows: "When there is no prejudice to the objecting party, and when the proposed amendment is not obviously frivolous nor made as a dilatory maneuver in bad faith, it is an abuse of discretion to deny the motion." Bevins,
¶ 29. The trial court based its prejudice determination on three factors: (1) the claim in the amendment was entirely new and based on different facts; (2) the plaintiff did not show good cause for the delayed timing of the amendment; and (3) the case had been pending for eighteen months, discovery had closed, and defendant had filed a motion for summary judgment. The second factor-the absence of good cause for the delay-does not implement a requirement under Bevins and it is not a ground to deny the motion to amend. The first factor is relevant to the extent it caused prejudice to plaintiff.
¶ 30. We conclude that this case is similar to Lillicrap v. Martin, although in that case the trial court granted a motion to amend an answer that added a statute-of-limitations defense six days after the beginning of trial and we affirmed that decision.
¶ 31. Just as the statute-of-limitations issue entered the case in Lillicrap through the motion for summary judgment, the employment-based-liability issue entered this case in the motion for summary judgment. By the time the trial court considered the motion to amend, the issue of who was plaintiff's employer, and the effect of that determination, was squarely at issue in the case. It is clear from the summary judgment record that defendant did extensive discovery on the issue so the fact that discovery was closed when the court considered the motion to amend the complaint should not have weighed in favor of denying the motion. Nor should the fact that the case had reached the summary judgment stage have been determinative.
¶ 32. We recognize that we have previously affirmed a trial court's decision not to allow an amendment to pleadings after the other party has filed for summary judgment; indeed, the court below cited our recent decision in Gauthier v. Keurig Green Mountain, Inc. to that effect.
¶ 33. Here, in contrast, plaintiff's claim in the motion to amend was addressed at length in defendant's own summary judgment motion, and addressing the motion became an application of the policy in Rule 15(b) for claims "tried by express or implied consent of the parties." When a party, such as defendant here, impliedly consents to trial of issues not raised in the pleadings, Rule 15(b) states that "amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time." Although we have never addressed the precise issue of the application of Rule 15(b) to the summary judgment stage of a case, at least two federal circuit courts have held that "when 'both parties squarely address a claim in their summary judgment briefs,' it may be argued that the complaint was constructively amended." Handzlik v. United States,
¶ 34. In Whitaker, the plaintiff was injured in a workplace accident when her hand was caught in a seam welder. Her original complaint included a single claim under a warranty theory. Defendant filed a motion for summary judgment that briefed not only that issue but also a strict liability theory of the case, which plaintiff did not raise. Because both plaintiff and defendant subsequently "squarely addressed the strict liability theory in their summary judgment briefs, the complaint was constructively amended to include that claim." Whitaker,
¶ 35. We concur with these cases and hold that when an issue enters a case during the summary judgment phase in part through the party later opposing its consideration, as here, the issue is effectively being tried based on the implied consent of the parties, and thus a contemporaneous motion to amend a pleading to include that issue should be freely granted. Indeed, the application of Rule 15(b) here is less likely to result in prejudice to the opposing party than the situation where, as occurred in Lillicrap, the motion to amend is made at trial. The amendment here occurred prior to trial.
*756¶ 36. This brings us to the second ground the trial court used to deny the motion to amend the complaint-that the claim in the amendment to the complaint could not succeed because plaintiff failed to allege any agreement between plaintiff and defendant and conceded there was an agreement between defendant and his son, plaintiff's father. It is clear from the arguments and supporting materials that plaintiff and defendant had two different narratives to describe the relationship between plaintiff and defendant and each was based on depositions and answers to interrogatories proper to consider at summary judgment. Defendant's narrative was that defendant hired his son to replace the surface materials on the roof of the building in which he had his office; his son in turn hired plaintiff and a friend of plaintiff to do the work; his son provided the tools, equipment, and materials necessary to do the work; and the son appeared daily to supervise the work. Plaintiff's narrative was that his father was an intermediary to get plaintiff and his friend to do work for defendant; plaintiff was promised "good money" for doing the work; defendant was himself an experienced roofer; after delivering the equipment, tools, and materials to complete the job, plaintiff's father never appeared again at the work site and never supervised the work; and defendant closely supervised plaintiff's work and controlled the manner and means of completing the job.
¶ 37. Plaintiff's theory of liability is based on "the common law obligation of a master to furnish his servant a reasonably safe place in which to work and to keep such place in reasonable repair." Landing v. Town of Fairlee,
¶ 38. The trial court ruled as a matter of law that defendant was not plaintiff's employer *757because of the absence of an agreement between plaintiff and defendant and plaintiff's concession that there was an agreement between defendant's son and defendant.
¶ 39. Although the right to control test is the primary indicator of an employer-employee relationship, it cannot govern where the proposed employee has specialized expertise that the proposed employer does not have. For example, in RLI Insurance Co., the proposed employee was a certified flight instructor, but the airport manager at the airport at which the proposed employee worked did not have flight instructor skills and could not supervise how the proposed employee provided flight instruction. RLI Ins. Co.,
¶ 40. To understand how the definitions play out in this case, we return to the narratives of the parties as summarized above. Plaintiff relies primarily on who controlled his work and his deposition testimony that the work was controlled by defendant, who had replaced roofs as part of his business in the past, and not by defendant's son, who was not present at all when the work was being done. Defendant relies primarily on other facts: the agreement between defendant and his son; the son's supplying of the tools, equipment and materials; the son's hiring of plaintiff and the uncertainty of compensation. In our view, the presence of contradictory factors, the limitations and factual conflicts in the summary judgment record, and the range of inferences that could be drawn from the factual statements prevent a conclusion that there is no genuine issue of material fact and one party is entitled to judgment *758as a matter of law on the common law claim. Thus, as with the original complaint, summary judgment could not be awarded to defendant on the common law count added by the proposed amendment.
¶ 41. We also address, at least in brief, the applicability of 21 V.S.A. § 618(b) because that provision affects the strength of the common law claim. For example, the statute reverses the burden of proof and makes any negligence of plaintiff irrelevant to the jury's consideration of the case. Plaintiff has alleged that defendant was his employer and failed to comply with 21 V.S.A. § 687, the trigger for the applicability for § 618(b).
¶ 42. The definition of employer for purposes of the Workers' Compensation Act is contained in 21 V.S.A. § 601(3). We have consistently held that the statutory definition is broader than the common law definition. See, e.g., Frazier v. Preferred Operators, Inc.,
¶ 43. For the above reasons, we hold that the superior court erred both in denying plaintiff's motion to amend his complaint and in granting summary judgment to defendant.
Reversed and remanded.
It also contained a count alleging negligent infliction of emotional distress. The content of that count sought damages for "emotional distress" caused by the fall from the roof. We view that count as a specification of damages and thus do not separately consider it in this decision.
The complaint also alleged that defendant instructed plaintiff to spray water on the roof to melt the frost and plaintiff did so. In his deposition, plaintiff stated that defendant instructed him to do so, but that he thought it was a dumb idea and did not do it.
Defendant has raised assumption of risk only in support of his argument that defendant has no duty with respect to plaintiff's premises liability theory. He has not raised assumption of risk as an affirmative defense in this case. V.R.C.P. 8(c) (listing assumption of risk as affirmative defense that must be pled).
As we noted in Langlois v. Town of Proctor, we have generally followed applicable provisions of Restatements unless there is a strong rationale not to do so.
In Demag v. Better Power Equipment, Inc.,
The subject is covered by the Restatement (Third) of Torts: Liability for Physical & Emotional Harm § 51 (2012). This section imposes liability for conditions that "pose risks to entrants on the land" under a "duty of reasonable care" to all entrants irrespective of the status of the entrant.
Plaintiff's premises liability theory does not necessarily depend, as the dissent suggests, on the jury finding that defendant was plaintiff's employer. Rather, defendant's liability could result from the jury concluding that defendant was aware of the risk the dangerous condition on his property posed to plaintiff and that his conduct in demanding plaintiff encounter the risk demonstrated that he anticipated plaintiff would not be able to avoid the risk and consequently be injured.
The dissent examines the illustrations accompanying § 343A and concludes that none of them apply, but "[t]he illustrations accompanying § 343A comment f are clearly meant to be illustrative, not exhaustive." Dos Santos,
Defendant also asserted prejudice because the defense was funded by an insurer acting under a nonwaiver agreement that did not extend to employment claims. We understand that if the amendment were allowed defendant would be partially uninsured but we do not see how defendant is prejudiced by the timing of the claim. Defendant would be in the exact same situation if plaintiff had explicitly alleged that defendant was his employer in the original complaint.
In Colby v. Umbrella, Inc., the trial court denied a motion to amend the plaintiff's complaint and dismissed the complaint deciding that, even if the complaint were amended as requested, it failed to state a claim on which relief could be granted.
This case is unusual because, as explained below, the question whether defendant was plaintiff's employer was already in the case in the arguments for and against summary judgment. As a result, the trial court's analysis appears closer to answering whether summary judgment would still be granted for defendant, despite plaintiff's complaint amendment, rather than whether the theory stated in the complaint amendment was "obviously frivolous." As we hold in the following text, we cannot agree with the trial court's analysis even under the standard of whether summary judgment against plaintiff would be granted on the new claim in the amendment. Thus, we do not have to address whether the trial court used the wrong standard.
There is also an obvious relationship between our resolution of the first issue, where we are remanding for trial, and this issue which involves the content of that trial. In view of our ultimate conclusion that a trial is required, Rule 15(b) is explicitly controlling, and Lillicrap is on point.
We recognize that in Landing and in other cases to which this Court considered applying Landing, the plaintiff did not prevail because of assumption of the risk. See Landing,
The decision is worded in terms of the "allegations" in plaintiff's complaint and plaintiff's concession. If looked at solely based on the language of the complaint, we find it to be an overly narrow reading of that language. For example, paragraph ten of the complaint says "Plaintiff agreed to work on the roof at the property for defendant for monetary compensation." Fairly read, this sentence says that plaintiff agreed to work for defendant for monetary compensation. Further, plaintiff's allegation in the new count, paragraph thirty-four, was that "defendant was Plaintiff's employer on the roof project at the property." These allegations are sufficient to meet notice pleading requirements. See Colby,
Concurrence in Part
¶ 44. I cannot join the majority's conclusion that defendant, as the property owner, can be held liable pursuant to the common law of premises liability for injuries resulting when a roofer climbed onto a frost-covered roof, stripped of shingles and covered with underlayment, thereby encountering dangers that were obvious and acknowledged by plaintiff before he climbed onto the roof. The majority's analysis suffers from two critical flaws: First, it misconstrues the scope of a landowner's common law duties concerning the condition of the premises in circumstances like this. Second, it rests on the assertion that defendant's familial relationship with plaintiff gave defendant "authority" over plaintiff such that defendant was legally accountable as landowner for plaintiff's choices.
¶ 45. With respect to the scope of defendant's common law duties as a matter of premises liability law, it cannot be the case that a roofer who has stripped a roof of shingles and voluntarily climbs on to an obviously frost-covered underlayment can sue the property owner on account of the dangerous condition of the roof. In general, a possessor of land has no duty to protect an invitee from obvious dangers known to the invitee. The majority's understanding of the exception to this rule is not grounded in the reasoning of the Restatement, and would impose on a landowner the incongruous duty to a professional roofer to eliminate dew and frost from the stripped underlayment of the roof of the landowner's home. Such a duty would make no sense because a roofer who has stripped the shingles from the roof and is in the middle of working on it is in a far superior position to the landowner to assess the risks of working on the roof and take measures to mitigate or avoid the *759risk. The reality is, plaintiff's claim here is not a premises liability claim at all; it does not rest on any evidence or argument that defendant is liable for unreasonably dangerous conditions on the premises, but instead hinges on the fact that defendant urged plaintiff to do something dangerous.
¶ 46. The two Restatement sections relied upon by the majority affirm that a landowner ordinarily has no duty to protect an invitee from obvious dangers. Section 343 of the Restatement (Second) of Torts provides that a possessor of land is subject to liability for physical harm caused to invitees by a condition on the land, but only if the possessor (a) knows or should discover the condition, and should realize that it involves an unreasonable risk of harm to invitees, (b) "should expect that they will not discover or realize the danger, or will fail to protect themselves against it," and (c) fails to exercise reasonable care to protect them against the danger. Restatement (Second) of Torts § 343 (1965). Section 343A elaborates, explaining that a possessor of land is not liable to invitees "for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness."
¶ 47. The common law exception to this general rule imposes liability on the landowner in certain circumstances in which the landowner should anticipate the harm notwithstanding the obviousness of the danger. Both §§ 343 and 343A contemplate that a landowner may be liable for injuries to invitees who encounter a known and obvious danger if the landowner should expect that the invitees would not discover or realize the danger, or would not protect themselves. As the commentary explains, in the ordinary case, "an invitee who enters land is entitled to nothing more than knowledge of the conditions and dangers" the invitee will encounter on the property. Id.§ 343A cmt. e. However, there are "cases in which the possessor of land can and should anticipate that the dangerous condition will cause physical harm to the invitee notwithstanding its known or obvious danger." Id.§ 343A cmt. f.
¶ 48. The Restatement explains that this exception applies where the landowner has reason to expect that the invitee may be distracted or may forget the obvious danger.
2. The A Department Store has a weighing scale protruding into one of its aisles, which is visible and quite obvious to anyone who looks. Behind and about the scale it displays goods to attract customers. B, a customer, passing through the aisle, is intent on looking at the displayed goods. B does not discover the scale, stumbles over it, and is injured. A is subject to liability to B.
3. The A Drug Store has a soda fountain on a platform raised six inches above the floor. The condition is visible and quite obvious. B, a customer, discovers the condition when she ascends the platform and sits down on a stool to buy some ice cream. When she has finished, she forgets the condition, misses her step, falls, and is injured. If it is found that this could reasonably be anticipated by A, A is subject to liability to B.
4. Through the negligence of A Grocery Store a fallen rainspout is permitted to lie across a footpath alongside the store, which is used by customers as an exit. B, a customer, leaves the store with her arms full of bundles which obstruct her vision, and does not see the spout. She trips over it, and is injured. If it is found that A should reasonably have *760anticipated this, A is subject to liability to B.
Id.§ 343A illus. 2-4.
¶ 49. The exception also may apply where the possessor has reason to expect that the invitee will proceed to encounter the known or obvious danger because a reasonable person would conclude that the advantages of doing so would outweigh the apparent risks.
5. A owns an office building, in which he rents an office for business purposes to B. The only approach to the office is over a slippery waxed stairway, whose condition is visible and quite obvious. C, employed by B in the office, uses the stairway on her way to work, slips on it, and is injured. Her only alternative to taking the risk was to forgo her employment. A is subject to liability to C.
Id.§ 343A illus. 5.
¶ 50. This case clearly does not fall within the first class of cases subject to the exception. This is not a case in which plaintiff alleges that he forgot about the danger of the frost-covered roof because he was distracted or failed to remember the danger. Even considering the evidence in the light most favorable to plaintiff, he recognized the danger presented by the frost-covered roof and was planning to stop working for the day. These circumstances are nothing like those in which an invitee can reasonably be expected to be distracted from or forget about an obvious danger.
¶ 51. Nor does this case fall within the second kind of exception described in the Restatement involving risks a reasonable person would encounter because the advantages outweigh the disadvantages. A property owner should not expect that a reasonable roofer, mid-job, will climb on to a frost-covered, underlayment-clad roof despite the obvious and recognized dangers.
¶ 52. If we held otherwise, it is difficult to imagine what the landowner's duty would be in this case. It clearly isn't a duty to warn, because there is no dispute that plaintiff was fully on notice of the danger. But if a landowner's premises are unreasonably dangerous because in the middle of a roofing job a coating of dew and early frost settles on the underlayment remaining on the otherwise-stripped roof, how is the landowner to prevent that danger? The roof is not like an excessively slippery waxed stairway that the landowner can strip and refinish with a more textured coating. Nor is it like a slippery ship's deck lacking the customary cover of sufficient plywood for workers to stand on, see ante, ¶20 (citing Lubrano v. Royal Neth. S.S. Co.,
¶ 53. If anything, a roofer who has been and will continue to work on the roof, rather than the landowner, is in a far superior position to take steps to prevent, mitigate, or eliminate the danger from the frost on the roof. The general risk of a stripped, wet roof is peculiarly within the knowledge of a professional roofer and not necessarily a landowner. Courts have generally rejected similar claims. For example, where a plaintiff, who was an equipment mechanic working as an independent contractor, was injured when his ladder slipped on the greasy floor in the defendant business's rendering plant, the Missouri Supreme Court ruled that the defendant *761had no duty to the plaintiff relative to the slippery floor. Hokanson v. Joplin Rendering Co.,
The ordinary care which an invitee must exercise to know and apprehend danger ... on premises to which [the invitee] is invited must be considered in the light of the unusual circumstances surrounding cases such as this, where the invitee is actually in charge of the operation in which he is engaged, has control over the area of the premises where he is injured, is an experienced and skilled workman following his own devices in performing the work he has undertaken, and knows and appreciates the dangers involved in the use of ladders on a greasy floor .... In such case he is expected to employ his superior skill and knowledge to avoid injury to himself.
¶ 54. Similarly, the Indiana Court of Appeals concluded that a business property owner had violated no duty to the employee of an independent contractor who was injured when falling from atop a tanker trailer while loading sludge from defendant's business into trucks. Armstrong v. Cerestar USA, Inc.,
¶ 55. The reality is, this is not really a premises liability case at all. That is, plaintiff's claim is not really predicated on unreasonably dangerous conditions of the premises. This Court faced a similar circumstance in connection with a case in which a contractor's employee sued a property owner after falling on a dirt mound serving as an access ramp to the contractor's trailer. Gero v. J.W.J. Realty,
¶ 56. That brings me to my second objection to the majority opinion: It hinges on defendant's asserted "position of authority"
*762over plaintiff. See ante, ¶13. To the extent that authority arises from defendant's position as direct or "statutory employer" of plaintiff pursuant to the workers' compensation laws, plaintiff's theory is encompassed in his separate claim that he was injured in the workplace and defendant is liable as his employer. But in connection with the premises liability claim, the argument seems to be that by virtue of his personal grandfather-grandson relationship with plaintiff, defendant was in a position of authority over plaintiff that impacted defendant's duties as a property owner. As noted above, it's hard to understand how such a relationship would be relevant to a true premises liability claim. But the majority's reliance on this relationship is troubling for another reason. Plaintiff was undisputedly a mature, twenty-seven-year-old man at the time of the accident. There is no evidence that he was not competent, or had a special, cognizable vulnerability. If there is a tort theory that supports liability when a defendant urges another competent adult to undertake dangerous activity, plaintiff has not pled or argued it.
¶ 57. For these reasons, I dissent from the majority's analysis of the premises liability claim. I would affirm that claim. I concur in the majority's analysis of the trial court's denial of plaintiff's motion to amend his complaint and join the majority decision reversing that order.
¶ 58. I am authorized to state that Justice Eaton joins this dissent.