Opinion
Case No. 5:18-cv-200
2022-03-15
Bruce E. MERRITT, Plaintiff, v. UNITED STATES of America, Ethan Darling, and Gloria Hammond, Defendants.
Bruce E. Merritt, Hartland Four Corners, VT, Pro Se. Jason M. Turner, AUSA, United States Attorney's Office District of Vermont, Burlington, VT, for Defendants United States of America. Susan J. Flynn, Esq., Clark Werner & Flynn, P.C., Burlington, VT, for Defendant Gloria Hammond. Kristin C. Wright, Esq., Pietro J. Lynn, Esq., Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, VT, for Defendant Ethan Darling.
Bruce E. Merritt, Hartland Four Corners, VT, Pro Se.
Jason M. Turner, AUSA, United States Attorney's Office District of Vermont, Burlington, VT, for Defendants United States of America.
Susan J. Flynn, Esq., Clark Werner & Flynn, P.C., Burlington, VT, for Defendant Gloria Hammond.
Kristin C. Wright, Esq., Pietro J. Lynn, Esq., Lynn, Lynn, Blackman & Manitsky, P.C., Burlington, VT, for Defendant Ethan Darling.
ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
Geoffrey W. Crawford, Chief Judge
Plaintiff Brace Merritt, representing himself, has filed suit under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346(b)(1) against the United States of America, Gloria Hammond, and Ethan Darling for damages sustained in a fall in the Hartland Four Corners United States Post Office parking lot on December 1, 2015. The United States moved to dismiss Plaintiff's claims asserting sovereign immunity and arguing that Plaintiff had failed to state a plausible claim for relief. (Docs. 46, 101.) On June 26, 2020, the court granted in part and denied in part the United States’ motion to dismiss, ruling that Plaintiff could proceed with his claims for failure to supervise the parking area, failure to maintain the parking area, negligence, and failure to warn of hazards. (Doc. 111 at 19.)
The court has dismissed Plaintiff's claims against the United States for failure to repair deficient gutters; failure to require proof of insurance and tax identification information under federal contracts; failure to hire a qualified contractor; failure to follow USPS internal guidelines; and negligence per se. (Doc. 111 at 19–20.)
In October 2021, all three Defendants moved for summary judgment. (Docs. 153, 154, 155.) In support of its motion for summary judgment, the United States argues that Plaintiff's claims are barred by sovereign immunity under the FTCA or are otherwise without merit. (Doc. 153.) Defendants Ethan Darling and Gloria Hammond invoke the "Storm in Progress" rule, arguing that Defendants had no duty to keep the premises free of hazards until the storm had ended. (Doc. 153 at 4–8; Doc. 154.)
Plaintiff responds that the court should find that Defendants had a duty to maintain a safe, ice-free parking lot at the Post Office or to warn visitors of hazards, regardless of the ongoing nature of the storm. Plaintiff further argues that Defendants breached this duty by failing to sand or salt the parking lot on the day of the fall. (Docs. 156, 157, 158.)
The four remaining claims against the United States are (1) failure to supervise the parking area; (2) failure to maintain the parking area; (3) failure to warn; and (4) negligence. (Doc. 111 at 19.) The claims against Mr. Darling are: (1) failure to maintain (Doc. 97 ¶ 19(a)); (2) failure to provide salt and sand to the Post Office (id. ¶ 19(e)); and (3) negligence. (Id. ¶ 19.) Last, the claims against Ms. Hammond are: (1) failure to maintain gutters (Doc. 97 ¶ 17(a)–(b)); (2) failure to professionally grade the parking area (id. ¶ 17(d)); and (3) negligence. (Id. ¶ 17.)
I. Facts
The following facts are undisputed unless noted otherwise.
A. December 1, 2015 Slip and Fall
On the morning of December 1, 2015, Mr. Merritt checked the weather report on his computer, which anticipated "a possibility of drizzle and freezing rain depending on location." (Doc. 154-6 at 5–6.) He drove to work. Around 3:00 p.m., Mr. Merritt decided to leave his worksite early to lessen the risk of returning home on icy roads as forecasted. (Id. at 8–9, 14.) After leaving work, he drove to the Hartland Four Corners Post Office. (Id. at 9.) As Mr. Merritt stepped out of his truck, he slipped and fell on the ground in the Post Office parking lot. (Id. at 9; Doc. 154-4 at 1.) He sustained injuries in the fall. (Doc. 96 ¶ 12.)
The court notes that several pages of the deposition transcripts are omitted from exhibits; all pagination refers to the page number of the document as filed.
An onlooker, Ms. Tanya Blood, observed Mr. Merritt's fall and alerted Ms. Kelly Tancreti, the postal clerk who was working at the Post Office. (Doc. 154-4 at 1; Doc. 153-4 at 2.) Ms. Tancretti then telephoned the Postmaster, Ms. Patricia Courtemanche, to report the incident. (Doc. 153-4 at 36, 45; Doc. 153-5 at 2–3.)
Sometime later, Mark Hampton, a U.S. Postal Service employee, arrived at the Post Office and salted the parking lot with salt he picked up from the nearby Hartland Three Corners Post Office. (Doc. 153-4 at 47; Doc. 154-11 at 4.) Mr. Hampton testified that the parking area was icy when he arrived to sand. (Doc. 154-11 at 8.) The presence of ice in the parking lot is confirmed by the U.S. Postal Service accident report. (Doc. 102-3 ("[W]eather factors: raining hard with sudden temperature drop ice on unpaved parking lot.").)
B. Snow Removal Arrangements at the Hartland Four Corners Post Office
At the time of Mr. Merritt's fall, Defendant Gloria Hammond owned the Hartland Four Corners Post Office building and leased it to the U.S. Post Office. (Doc. 96 ¶ 3; Doc. 99 ¶ 3.) The U.S. Postal Service's lease with Ms. Hammond specified that the U.S. Postal Service was responsible for removal of snow and ice from the parking lot. (Doc. 96 ¶ 4; Doc. 154-2 ¶ 8; Doc. 156-1 ¶ 8; Doc. 158-8 at 12 ("The Postal Service agrees to furnish and pay for the timely removal of snow and ice from the sidewalks, driveway, parking and maneuvering areas, and any other areas providing access to the postal facility for use by postal employees, contractors, or the public.").) Ms. Hammond was responsible for removing snow and ice from the roof and for "regular cleaning of any gutters, downspouts, troughs, scuppers, roof drains, etc." (Doc. 158-8 at 8.) The terms of the lease did not specifically require Ms. Hammond to grade the parking lot but did generally impose a duty to maintain the premises "in good repair and tenantable condition." (Doc. 158-8 at 8.) Ms. Hammond broadly denies any obligation to grade the parking area. (See Doc. 99 ¶ 17.) Mr. Darling did not have a written agreement with the U.S. Post Office to grade the parking area. (Doc. 154-8 ¶ 10.)
The U.S. Postal Service entered into a verbal agreement with Defendant Ethan Darling to remove snow and ice from the parking lot "as needed" for the 2015 winter season. (Doc. 154-2 ¶ 9; Doc. 156-1 ¶ 9; Doc. 154-8 ¶ 6.) Mr. Darling stated that he "was expected to use [his] best judgment regarding when to plow and sand the four-space parking lot at the Hartland Four Corners Post Office." (Doc. 154-8 ¶ 15.) Neither Mr. Darling nor the U.S. Postal Service sanded the parking lot the morning of Mr. Merritt's fall.
Mr. Darling lived 3.8 miles from the Hartland Four Corners Post Office. (Doc. 154-8 ¶ 9.) Typically, Mr. Darling would plow the U.S. Post Office parking lot "when there was one inch or more of accumulated snow, and would apply sand if it was icy at my house." (Id. ) On the morning of December 1, 2015, Mr. Darling drove to the Hartland Four Corners Post Office where he inspected the parking lot and decided that there were no icing conditions and that the parking lot didn't need sand at that time. (Doc. 154-9 at 6; Doc. 154-2 ¶ 11; Doc. 156-1 ¶ 11.) Mr. Darling testified that it was "pouring rain," and that "sand would have essentially been pointless in the pouring rain, because it's going to be icy within another five minutes after, depending on the temperature." (Id. ) He did not return to the Post Office until the following morning to sand the parking lot "when the storm was said and done." (Id. at 9–10.)
When Ms. Tancretti arrived for her afternoon shift at the Hartland Four Corners Post Office around 2:30 p.m. on December 1, 2015, she checked the exterior condition of the premises. (Doc. 102-8 at 3.) Ms. Tancretti was "informally aware of the freezing rain conditions by her own personal visual observation of weather conditions and informal conversations with postal customers." (Id. ) Sometime later in the afternoon of December 1, Ms. Courtemanche drove to the Post Office. (Doc. 154-12 at 4.) When she arrived, she noticed that the parking lot was icy. (Id. ) She was unsure whether the parking lot had been sanded because she "would not have been able to tell because everything washed off everywhere." (Id. ) Ms. Tancretti testified that she had never salted or sanded the walkway at the Hartland Four Corners Post Office and that it was not the responsibility of postal clerks to salt or sand, and that there was no sand or salt kept at the Post Office for this purpose. (Doc. 153-4 at 25.)
Analysis
I. Standard of Review
Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). At this stage, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "[T]he court must draw all reasonable inferences in favor of the nonmoving party." Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Put another way, "[s]ummary judgment is appropriate [w]here the record taken as a whole could not lead a rational trier of the fact to find for the [non-movant]." Johnson v. Killian , 680 F.3d 234, 236 (2d Cir. 2012) (third alteration in original) (internal citation omitted). However, "to show a genuine dispute, the nonmoving party must provide hard evidence, from which a reasonable inference in its favor may be drawn. Conclusory allegations, conjecture, and speculation ... are insufficient to create a genuinely disputed fact." Hayes v. Dahlke , 976 F.3d 259, 267–68 (2d Cir. 2020) (cleaned up). And although the court "must disregard all evidence favorable to the moving party that the jury is not required to believe," the court credits "evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses." Id.
A document filed pro se is "to be liberally construed." Estelle v. Gamble , 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). "[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus , 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). Further, a pro se complaint must be construed as raising the strongest arguments it suggests. Harris v. Miller , 818 F.3d 49, 56–57 (2d Cir. 2016) (per curiam). "Nonetheless, proceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party's bald assertions unsupported by evidence ... are insufficient to overcome a motion for summary judgment." Houston v. Teamsters Loc. 210, Affiliated Health & Ins. Fund-Vacation Fringe Ben. Fund , 27 F. Supp. 3d 346, 351 (E.D.N.Y. 2014) (cleaned up).
II. Duty of Care
The definition—and thus existence—of a duty relationship is a question of law. O'Connell v. Killington, Ltd. , 164 Vt. 73, 76, 665 A.2d 39, 42 (1995). However, whether a defendant's conduct breached that duty is usually a jury question. See LeClair v. LeClair , 2017 VT 34, ¶ 16, 204 Vt. 422, 169 A.3d 743 ("It is for the jury as factfinder, not this Court, to determine whether defendant breached a duty to prevent plaintiff from being injured by a dangerous condition on the property that defendant should have anticipated plaintiff would encounter."); See also Kennery v. State , 2011 VT 121, ¶ 41, 191 Vt. 44, 64, 38 A.3d 35, 48 (whether a defendant's conduct rises to the level of "gross negligence is ordinarily a question of fact for the jury"). The court begins by discussing the relevant provisions of the FTCA and by defining the duty relationships of each Defendant.
A. The United States
The U.S. Postal Service took possession of the Hartland Four Corners Post Office by executing a lease with Gloria Hammond, the owner of the property. (Doc. 158-8.) The terms of the lease assigned the duty to remove snow and ice to the U.S. Postal Service. (Id. at 12.)
The FTCA gives federal courts jurisdiction over civil actions against the United States "for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). The law of the state where the alleged tort occurred—in this case, Vermont—governs FTCA actions. 28 U.S.C. § 1346(b)(1) ; Makarova v. United States , 201 F.3d 110, 114 (2d Cir. 2000).
Vermont courts have developed a robust jurisprudence on slip-and-fall cases for one simple reason—Vermont has "character-building" winters. B. Harrison, Tourism, farm abandonment, and the ‘typical’ Vermonter, 1880– 1930 , 31 J. of Hist. Geography 478, 479 (2005). The Vermont Supreme Court's analysis of winter injuries reflects a pragmatic spirit of rugged self-reliance, recognizing that "[w]inter weather is a reality of life in this area. On the one hand slippery conditions cannot be wholly prevented, but on the other they are foreseeable." Wakefield v. Tygate Motel Corp. , 161 Vt. 395, 397, 640 A.2d 981, 982 (1994). Certainly, the ubiquity of slippery conditions in Vermont winters has some bearing on "the reasonableness of protective measures, or the lack of them, in a particular situation." Stearns v. Sugarbush Valley Corp. , 130 Vt. 472, 474, 296 A.2d 220, 222 (1972). Nevertheless, the foreseeability of snow and ice during the winter does not wholly absolve Vermont businesses of the responsibility to adopt reasonable safety measures to mitigate risks of slipping. See Hoar v. Sherburne Corp. , 327 F. Supp. 570, 571 (D. Vt. 1971) ("[A] person ... having control of land, has the duty to have taken reasonable steps to obviate the danger as by sanding the pathway.") (cleaned up).
As the lessee of the Hartland Four Corners Post Office premises, the United States had a duty to take reasonable steps to prevent slippery conditions caused by ice and snow, to warn visitors of unforeseeable risks, and to take care to ensure the premises were reasonably safe for visitors.
The United States argues it has delegated these duties to an independent contractor in their entirety and therefore that any claims of negligence are barred by the FTCA's Independent Contractor Exception. (Doc. 154 at 2.) The court turns to the nature of this delegation and considers whether the United States retained any shared duty of care over ice and snow removal in the Post Office parking lot.
B. Ethan Darling
1. Duty
Ethan Darling was bound by his verbal contract with the United States to clear snow from the Four Corners Post Office parking lot "as needed." (Doc. 154-2 ¶ 9; Doc. 156-1 ¶ 9; Doc. 154-8 ¶ 6.) This contract delegated at least a portion of the United States’ duty to remove snow and ice in the parking lot to Mr. Darling. The claims against Mr. Darling are: (1) Failure to maintain (Doc. 97 ¶ 19(a)); (2) Failure to provide salt and sand to the Post Office (Id. ¶ 19(e)); and (3) Negligence (Id. ¶ 19.) The court considers the degree of shared responsibility between the U.S. Postal Service and Mr. Darling to supervise and maintain the parking area.
2. The Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq.
An important exception to the FTCA's grant of jurisdiction over civil tort actions is known as the "Independent Contractor Exception." Under this exception, "[i]f the injuries alleged in a complaint were caused by an independent contractor, the FTCA does not waive sovereign immunity for that claim, and it must be dismissed for lack of subject matter jurisdiction." Fisko v. U.S. Gen. Servs. Admin. , 395 F. Supp. 2d 57, 62 (S.D.N.Y. 2005) ; see also Roditis v. United States , 122 F.3d 108, 111 (2d Cir. 1997). However, even where the United States has delegated certain tasks to an independent contractor, the United States cannot escape liability under the FTCA for its own tortious acts or omissions. See, e.g. , Haskin v. United States , 569 F. App'x 12, 15–16 (2d Cir. 2014) (Where USPS employees and independent contractors retained some responsibility for inspecting sidewalks and removing snow and ice, dismissal for lack of subject matter jurisdiction under the Independent Contractor Exception was improper); see also Roditis , 122 F.3d at 112 ("[W]here the United States is wholly without fault , the federal government may not be held liable for a negligent or wrongful act or omission of an independent contractor.") (emphasis added). So long as a plaintiff alleges direct negligence on the part of government employees, "[s]overeign immunity does not shield the Government from such claims." Haskin , 569 F. App'x at 16 ; see also Logue v. United States , 412 U.S. 521, 532, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973) (vacating dismissal of FTCA claim and remanding to determine whether government employee's negligence—separate from independent contractor's negligence—caused plaintiff's injuries).
3. Shared Responsibility to Inspect and Maintain the Parking Area
It is undisputed that Mr. Darling is an independent contractor. The parties agree as a matter of law that if the U.S. Postal Service had delegated all snow and ice removal duties to Mr. Darling, the United States would be shielded from liability under the FTCA by the Independent Contractor Exception. The parties disagree on whether the United States retained a duty to inspect and maintain the parking area and to warn visitors of hazards.
If the United States and Mr. Darling shared responsibility to maintain the parking area, the Independent Contractor Exception would not shield the United States from liability. Haskin , 569 F. App'x at 15 ; Hentnik v. United States , No. 02 Civ. 9498(DC), 2003 WL 22928648, at *4 (S.D.N.Y. Dec. 10, 2003). "Only upon a finding that the government delegated its entire duty of care may the court dismiss the claim for lack of jurisdiction under the FTCA's independent contractor exception." Edison v. United States , 822 F.3d 510, 518 (9th Cir. 2016) ; see also Harvey v. United States , No. 14 Civ. 1787 (PAC), 2017 WL 2954399, at *1 (S.D.N.Y. Jul. 10, 2017) ("When, as here, there is a distinct question regarding the direct negligence of federal employees, jurisdiction is appropriate."). If the U.S. Postal Service has "no contractual right to control the contractor's physical performance or supervise its day-to-day operations, but instead reserves the right to inspect the contractor's performance, the Government cannot be held liable for the acts of its independent contractors." Hentnik , 2003 WL 22928648, at *4. Moreover, if the United States bore an independent duty to supervise the parking area and to warn visitors of hazards, and this duty was not delegated to Mr. Darling, then the United States would not be shielded from liability for this claim. See Szydlo v. United States , No. 3:16-cv-0127 (VLB), 2017 WL 125016, at *7 (D. Conn. Jan. 12, 2017) ("Since [Plaintiff] has established USA did not delegate the duty to inspect and monitor the Post Office, the Court turns to whether USA in fact breached that duty ... by failing to provide a ‘reasonably safe’ premises for invitees.").
The United States argues that because the government delegated the responsibility to treat the parking lot for snow and ice to an independent contractor, any allegations of a failure to inspect, supervise, or maintain are barred by the jurisdictional limitations of the FTCA. (Doc. 154 at 8.) In support of this proposition, the United States cites several cases where the United States delegated all maintenance responsibilities to independent contractors.
In Crawford v. United States , No. 1:14-CV-1336 (LEK/CFH), 2016 WL 7190567 at *6 (N.D.N.Y. Dec. 12, 2016), the court concluded that the responsibility to clear snow from a government-owned parking lot was fully delegated to an independent contractor; unlike this case, government employees themselves never salted or sanded outdoor areas. Because government employees had no role in snow removal and de-icing other than occasionally calling the contractor to do so, there was no direct negligence on the part of U.S. employees.
In Squicciarini v. United States , No. 12 Civ. 2386 (ER), 2013 WL 620190, at *3 (S.D.N.Y. Feb. 15, 2013), the government never "performed any grounds maintenance or repairs ... since [defendant] assumed possession and responsibility ... for the day-to-day operation and maintenance of the [property]." There, government employees rarely, if ever, set foot on the property, having completely delegated maintenance duties to third parties. Id. ; See also Yesina v. United States , 911 F. Supp. 2d 217, 221 (E.D.N.Y. 2012) (because the government had delegated the duty to inspect and "be on the grounds" to the independent contractor, it was shielded from liability by the Independent Contractor Exception).
These cases demonstrate mat when the United States delegates a duty in its entirety to an independent contractor, the United States cannot later be liable if the independent contractor breaches that duty. This remains true even if the United States exercises an "overseer" or supervisory role. See Leone v. United States , 910 F.2d 46, 50 (2d Cir. 1990). These cases do not, however, speak to a situation where the United States has delegated certain duties to an independent contractor but shared responsibility for those duties. Neither do they speak to a situation where the United States declined to delegate a duty to a contractor in the first place.
The evidence before the court, viewed in the light most favorable to Mr. Merritt, does not support a finding that U.S. Postal Service employees played no role in supervising the premises, deciding whether to sand, and treating the parking area. Nor does the evidence indicate that the United States delegated its duty to warn visitors of hazardous or slippery conditions to an independent contractor. See e.g. , Szydlo , 2017 WL 125016 at *7. U.S. Postal Service employees occasionally inspected the parking area and applied salt or sand around the Post Office. (Doc. 102-8 at 3 (Ms. Tancretti checked exterior condition of the Post Office and noted icy conditions); Doc. 158-11 (Mr. Hampton salted the parking lot).) At least one local Post Office location kept shovels, sand, or salt on site for treating slippery conditions. (Doc. 158-17 at 2.) And following Mr. Merritt's fall, a U.S. Postal Service employee—not Mr. Darling—was contacted to treat the parking area with sand and salt. (Doc. 158-11 (Mr. Hampton sanded the parking lot approximately one hour after Mr. Merritt's fall).) Although Mr. Hampton's treatment of the icy parking lot might only show "that in unique circumstances a USPS employee was willing to go above and beyond his duty to do a kind deed," all reasonable inferences and ambiguities must be resolved in Mr. Merritt's favor. (Doc. 154 at 10–11.) A factfinder might reasonably infer from the fact that U.S. Postal Service employees contacted a U.S. Postal Service employee to salt the parking lot—but did not contact independent contractor Mr. Darling—demonstrates shared responsibility over snow and ice removal.
Courts may consider evidence at summary judgment that would be admissible in some form at trial. See Fed. R. Civ. P. 56(c). The United States is correct that Rule 407 of the Federal Rules of Evidence would bar the admission of subsequent remedial measures—here, evidence of Mr. Hampton salting the parking lot after Mr. Merritt's fall—for the purpose of proving negligence. However, this evidence is admissible for other purposes, including to prove ownership or control over the parking area. The court references this evidence to indicate the U.S. Postal Service did, at least on this occasion, share some responsibility with Mr. Darling to sand or salt the parking area. This evidence of subsequent remedial measures would be admissible at trial under Rule 407 for this limited purpose.
Mr. Darling was not given the sort of "day-to-day management" role giving rise to the application of the Independent Contractor Exception in other cases. See, e.g. , Yesina , 911 F. Supp. 2d at 222. A reasonable factfinder could find that the U.S. Postal Service had delegated some portion of its duties to inspect, maintain, and warn to Mr. Darling, but retained others, and may be held liable for its residual portion of responsibility.
There remains some doubt as to the exact contours of this shared responsibility. For instance, Ms. Tencretti stated that it was not her responsibility to apply salt and sand, and that the Hartland Four Corners Post Office did not have salt or sand on site for this purpose. (Doc. 153-4 at 25.) Mr. Darling stated that he did not share responsibility for plowing with "any other postal employee, contractor, or agent." (Doc. 154-9 at 15.) On the other hand, following Mr. Merritt's fall, a U.S. Postal Service employee treated the icy conditions. (Doc. 158-11.) Although the court is equipped to determine as a matter of law the existence of a duty, the scope of this shared responsibility—and whether Defendants exercised reasonable care in this context—remains a genuine issue of fact requiring a trial.
C. Gloria Hammond
Ms. Hammond owned the Hartland Four Corners Post Office building and leased it to the U.S. Postal Service under a Lease Agreement dated October 30, 2014. (Doc. 158-8.) Plaintiff argues that Ms. Hammond failed to properly maintain a broken drainage gutter and to properly grade the parking area, causing rainwater to flow off the roof and onto the parking area and contributing to ice buildup. (Doc. 96 ¶ 11.) Plaintiff's claims against Ms. Gloria Hammond are: (1) failure to maintain gutters (Doc. 97 ¶ 17(a)–(b)); (2) failure to professionally grade the parking area (id. ¶ 17(d)); and (3) negligence. (Id. ¶ 17.)
Ms. Hammond moves for summary judgment relying upon the motion filed by Mr. Darling on October 13, 2021. (Doc. 155.) She previously asserted the following affirmative defenses: (1) failure to mitigate damages; (2) comparative/contributory negligence; (3) insufficient process; (4) insufficient service of process; and (5) act of God. (Doc. 99.) Other than her answer to the amended complaint and her adoption of Mr. Darling's arguments in favor of summary judgment, Ms. Hammond has filed no legal arguments with the court.
In general, landlords are not subject to tort liability for injuries to invitees and licensees resulting from dangerous conditions on leased property. See Garafano v. Neshobe Beach Club, Inc. , 126 Vt. 566, 575–76, 238 A.2d 70, 77 (1967) ; Restatement (Second) of Torts §§ 356, 357 (1965). This rule is subject to certain exceptions. One such exception imposes tort liability on the landlord for injuries that occur in, or result from, areas of the property that remain under their possession or control. Garafano , 126 Vt. at 568, 238 A.2d 70 ; Cameron v. Abatiell , 127 Vt. 111, 241 A.2d 310 (1968), abrogated on other grounds by Demag v. Better Power Equip., Inc. , 2014 VT 78, ¶ 26, 197 Vt. 176, 102 A.3d 1101.
Another exception arises where the lessor contracts to repair the property on an ongoing or as-needed basis. Under this exception, the lessor is subject to liability for physical harm caused by a condition (1) the lessor has contracted to repair; (2) the disrepair of which creates an unreasonable risk to persons upon the land which the performance of the lessor's agreement would have prevented; and (3) the lessor fails to exercise reasonable care to perform his contract. Restatement (Second) of Torts, § 357 (1965).
Where the lessor has retained a duty to repair, this duty "extends to persons on the land with the consent of the lessee, with whom the lessor has made no contract." Restatement (Second) of Torts, § 357, cmt. c (1965); Restatement (Third) of Torts, § 53 (2012) ("[A] lessor owes to the lessee and all other entrants on the leased premises ... a duty of reasonable care for any contractual undertaking."). Accordingly, private individuals not party to a contract between lessor and lessee may nevertheless hold a lessor liable in tort for lessor's failure to exercise reasonable care to repair deficient conditions and maintain a reasonably safe property. Vermont state courts have adopted the approach set forth in § 357 of the Second Restatement. See Keene v. Willis , 128 Vt. 187, 260 A.2d 371, 371 (1969) ; Delphia v. Proctor , 124 Vt. 22, 196 A.2d 567 (1963) (imposing tort duty on lessor based on contractual duty to repair); Cameron , 127 Vt. at 118, 241 A.2d 310 (discussing the duty to repair alongside possession and control, but holding that scope of duty to repair is question for jury); but see Soulia v. Noyes , 111 Vt. 323, 328–29, 16 A.2d 173, 175 (1940) (where a landlord contracts to make repairs, landlord is not liable in tort for personal injuries resulting from a failure to make repairs, but where a landlord agrees to maintain premises in safe condition and good repair, landlord has reserved control and may be liable for personal injury).
Ms. Hammond was the landlord of Hartland Four Corners Post Office building at the time Mr. Merritt's injury occurred. The terms of the lease between Ms. Hammond and the U.S. Postal Service specified that Ms. Hammond was responsible for removing snow and ice from the building's roof and for maintaining the premises "in good repair and tenantable condition." (Doc. 158-8 at 8, 12.) The lease assigned the duty to repair, replace, and regularly clean "any gutters, downspouts, troughs, scuppers, roof drains, etc," to Ms. Hammond. (Id. at 8.) Under the general rule, Ms. Hammond would be shielded from liability for Mr. Merritt's injury because she did not control the parking lot area where Mr. Merritt's injury occurred. See Restatement (Second) of Torts §§ 356, 357 (1965). If, however, one of the exceptions to the general rule applied, she would be subject to liability.
It is possible that Ms. Hammond would be liable to Mr. Merritt under the § 357 Restatement Test for personal injuries stemming from a breach of a duty to repair, or under another legal theory. But given Ms. Hammond's limited briefing, the court is unable to determine her potential liability. The court invites Ms. Hammond to submit arguments regarding lessor tort liability and the duty to repair within 30 days. Mr. Merritt will have 30 days from the date of her filing to respond. Both parties’ submissions will be limited to 10 pages.
III. Breach
Under Vermont State law, a plaintiff seeking to prove negligence must show: "(1) that the plaintiff was owed a legal duty by the defendant; (2) that the defendant breached that duty; (3) that the defendant's conduct was the proximate cause of the plaintiff's injuries; and (4) that the plaintiff suffered actual damage as a result of the negligence." Gilman v. Me. Mut. Fire Ins. Co. , 2003 VT 55, ¶ 15, 175 Vt. 554, 830 A.2d 71 (mem.) (citing Knight v. Rower , 170 Vt. 96, 102, 742 A.2d 1237, 1242 (1999) ). Vermont has adopted a modified comparative negligence regime, whereby plaintiff's partial contribution to an ensuing injury will not bar liability so long as their contribution does not exceed 50 percent of the total blame. 12 V.S.A. § 1036.
Business owners and landowners assume an additional duty of care when they invite the public onto their property. The duty of a landowner or business owner "is to use reasonable care for the safety of all ... persons invited upon the premises." Demag , 2014 VT 78, ¶ 26, 197 Vt. 176, 102 A.3d 1101 (quoting Peterson v. Balach , 294 Minn. 161, 199 N.W.2d 639, 647 (Minn. 1972) ). The Vermont Supreme Court has adopted the Restatement test for premises liability:
Vermont law no longer distinguishes between the duties owed to invitees—those present at a property to conduct business—and licensees—individuals visiting a property for purposes unrelated to business. Id. This order uses the terms licensee, invitee, and "visitor" interchangeably.
[A] possessor of land is liable for physical harm ... if the possessor satisfies three requirements: (1) knows or should know that the condition presents an unreasonable risk of harm to invitees; (2) should expect that they will not discover or realize the danger, or will fail to protect themselves against it ; and (3) does not exercise reasonable care to protect the invitees from the danger.
LeClair , 2017 VT 34, ¶ 11, 204 Vt. 422, 169 A.3d 743 (quoting Restatement (Second) of Torts § 343 (1965) ) (cleaned up). The "critical criterion" of the Restatement test is "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." LeClair , 2017 VT 34, ¶ 11, 204 Vt. 422, 169 A.3d 743 (citing Restatement (Second) of Torts § 343A (1965) ). A plaintiff asserting premises liability must also prove that their injury resulted from a dangerous condition of which the defendant had actual or constructive notice. Randall v. K-Mart Corp. , 150 F.3d 210, 213 (2d Cir. 1998) (applying Vermont law).
Vermont state courts generally follow applicable provisions of Restatements unless there is a strong policy rationale not to do so. Langlois v. Town of Proctor , 2014 VT 130, ¶ 34, 198 Vt. 137, 113 A.3d 44.
Embedded in a possessor of land's duty of care are the obligations to identify potential hazards on a property, and either repair those hazards or put visitors on notice of potential risk. See Demag , 2014 VT 78, ¶ 26, 197 Vt. 176, 102 A.3d 1101 (duty to maintain); Cyr v. United States , No. 5:10-cv-194, 2011 WL 2489877, at *4 (D. Vt. June 21, 2011) (In Vermont, a "business owner has a duty to warn invitees of known dangerous conditions"); see also Restatement (Third) of Premises Liability § 38:3 (3d ed. 2021) ("[A] possessor of land has a duty to an invitee to reasonably inspect and maintain the premises in order to render them reasonably safe ... or to warn the invitee [of dangerous conditions]."). The exact contours of these duties in a specific case may change depending on the contractual relationships among parties who own, maintain, lease, or otherwise exercise control over a particular property. See Vella v. Hartford Vt. Acquisitions, Inc. , 2003 VT 108, ¶ 9, 176 Vt. 151, 155, 838 A.2d 126, 130 (citing cases).
Mr. Darling and the U.S. Postal Service employees had actual or constructive notice of icy conditions at the Hartland Four Corners Post Office on the day of Mr. Merritt's fall. On the morning of December 1, 2015, Mr. Darling drove to the Hartland Four Corners Post Office where he inspected the parking lot and decided that there were no icing conditions and that the parking lot didn't need sand at that time. (Doc. 154-9 at 6; Doc. 154-2 ¶ 11; Doc. 156-1 ¶ 11.) Mr. Darling testified that it was "pouring rain," and that "sand would have essentially been pointless in the pouring rain, because it's going to be icy within another five minutes after, depending on the temperature." (Id. ) Sometime later, Ms. Tancretti observed freezing rain conditions and discussed the weather informally with postal customers. (Doc. 102-8 at 3.) While driving from the Hartland Three Corners Post Office and the Hartland Four Corners Post Office, Ms. Courtemanche remembers feeling "upset and scared because the pavement was completely iced over," and noticed that the Hartland Four Corners Post Office parking lot was "icy" and "frozen."(Doc. 154-12 at 4.) Neither Mr. Darling nor any of the U.S. Postal Service employees posted warnings alerting the public to icy conditions in the parking lot.
Against this background, the court cannot find, as a matter of law, that Defendants exercised reasonable care to protect the public from danger. Nor can the court determine whether the slippery conditions in the parking lot created an unreasonable risk of harm to the public or the degree to which the public could discover this danger and protect themselves against it. See LeClair , 2017 VT 34, ¶ 11, 204 Vt. 422, 169 A.3d 743. It is for the jury to determine whether Defendants breached a duty to prevent Mr. Merritt from being injured by icy conditions that Defendants had observed and should have anticipated postal service customers would encounter. The resolution of whether Defendants breached their respective duties to Mr. Merritt is therefore not suitable for summary judgment and will be a question of fact preserved for trial.
IV. The Storm in Progress Rule
The Storm in Progress Rule, adopted in several jurisdictions, suspends a landowner's duty to take reasonable measures to treat "storm-created snow and ice conditions ... until after the storm has ceased." Restatement (Third) of Premises Liability § 49:16.10 (3d ed. 2021). In jurisdictions that apply the Storm in Progress Rule, "there is no liability for injuries related to falling on accumulated snow and ice until after the storm has ceased, in order to allow workers a reasonable period of time to clean the walkways." Powell v. MLG Hillside Assocs., L.P. , 290 A.D.2d 345, 345–46, 737 N.Y.S.2d 27, 29 (N.Y. App. Div. 2002) ; see also Ryan v. Beacon Hill Ests. Coop., Inc. , 170 A.D.3d 1215, 1216, 96 N.Y.S.3d 630, 632 (N.Y. App. Div. 2019) (a property owner does not assume a duty to treat icy conditions "until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm") (internal quotations omitted).
Federal courts asked to rule on an unsettled question of state law should do so only where an answer to the question is necessary for a decision. See 1 James Wm. Moore et al., Moore's Federal Practice and Procedure § 3.44 (3d ed. 2021) ("[W]hen a decision is to be made on the basis of state law , the Supreme Court has a strong preference that the controlling interpretation ... be given by the state's highest court, rather than the federal courts.") (emphasis added); see also Arizonans for Official English v. Arizona , 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997) (discussing principles of federalism that should guide the federal courts’ modesty when adjudicating unsettled state law issues). In the FTCA context, as in others where federal courts are asked to adjudicate state laws, the "ultimate source" of authority must be the "law as established by the constitution, statutes, or authoritative court decisions of the state"—not federal courts’ "guesses as to what the law might be." Borley v. United States , 22 F.4th 75, 82 (2d Cir. 2021) (quoting Desiano v. Warner-Lambert & Co. , 467 F.3d 85, 90 (2d Cir. 2006) ).
The Vermont Supreme Court has not yet decided whether to adopt the Storm in Progress Rule. The only Vermont trial court to apply the rule in a reported decision did so where the outcome of the case would have been the same as a matter of law whether or not it applied. See Turmel v. Univ. of Vt. , No. S0980-01 Cncv, 2004 WL 5460386 (Vt. Super. Ct. Apr. 20, 2004). There, the court noted that the Storm in Progress Rule acts as a "legal mechanism to counterbalance" the owner's duty of reasonable care when weather events create ongoing and dangerous circumstances for pedestrians, and discussed the long line of state court decisions recognizing the futility of keeping outdoor areas "absolutely safe or snow free" while a storm is ongoing. Id.
Reasoning that it would be irrational to expect property owners to take "extraordinary measures to remove all snow and ice the second it touches the ground," the Turmel court merged the "reasonableness" analysis with the Storm in Progress Rule. Id. The duty of care of a property owner is to take reasonable measures to remove ice and snow in order to protect visitors. The Storm in Progress Rule modifies this duty in the case of an ongoing blizzard or ice storm. The Rule recognizes the commonsense proposition that it is not always practical or reasonable to remove snow or ice in installments during the life of the storm. The Turmel court noted as much, stating that the property owner's duty of reasonable care during a storm is "not too different in substance from the Storm in Progress Rule." Id. (quoting Budzko v. One City Ctr. Assocs. Ltd. P'ship , 2001 ME 37, 767 A.2d 310, 314 n.2 (declining to adopt the Storm in Progress Rule)); see also Olejniczak v. E.I. du Pont de Nemours & Co. , 79 F. Supp. 2d 209, 217 (W.D.N.Y. 1999) (considering the general duty of reasonable care alongside the storm in progress doctrine).
The court anticipates that it will instruct the jury on the substance of the Storm in Progress Rule—likely without naming it—and permit the factfinder to consider the reasonableness of the actions taken by Mr. Darling and other defendants in light of the Rule. At the summary judgment stage, however, the Rule does not operate to bar Plaintiff's claims because the rain and snow continued beyond the time of his fall. Rather, the duration of the weather event is one factor the factfinder may consider in judging the reasonableness of Defendants’ conduct.
Conclusion
For the foregoing reasons, the Defendants’ Motions for Summary Judgment (Docs. 153, 154, 155) are DENIED. The court invites Ms. Hammond to submit arguments regarding lessor tort liability and the duty to repair within 30 days. Mr. Merritt will have 30 days from the date of her filing to respond. Both parties’ submissions will be limited to 10 pages.