Cobeo v. Estate of Judy Evans, No. S0547-04 CnC (Norton, J., Aug. 31,
2005)

[The text of this Vermont trial court opinion is unofficial. It has been
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STATE OF VERMONT                                    SUPERIOR COURT
Chittenden County, ss.:                         Docket No. S0547-04 CnC




COBEO

v.

ESTATE OF JUDY EVANS




                                 ENTRY



       This is a summary judgment motion for a negligence claim arising
out of particularly tragic circumstances. On February 10, 2003, the
Vermont State Police found Judy Evans, her partner Eriberto Cobeo, and
her son Danford Cross unconscious in Judy’s home, victims of carbon
monoxide poisoning. EMTs who arrived shortly thereafter were able to
revive Mr. Cross but could not resuscitate Ms. Evans or Mr. Cobeo, and
they were pronounced dead. Ms. Evans’s daughter, Julie Cross, who was at
college in Colorado at the time, was named administrator of her mother’s
estate. Mr. Cobeo’s next of kin, Hector Cobeo, was appointed the
administrator of Eriberto Cobeo’s estate. He now seeks damages from Judy
Evans estate for the loss of Mr. Cobeo and for any expenses related to Mr.
Cobeo’s poisoning and subsequent death. Plaintiff seeks these damages
under a theory of negligence that assigns blame for the incident on Judy
Evans for her negligent failure to properly maintain the house’s furnace, the
source of the carbon monoxide. Ms. Cross has sought summary judgment
on this case and renews her motion after six months for additional
discovery.

       The issue raised by Ms. Cross in her motion is, at least initially, one
of premise liability. The question of what duty Ms. Evans owed to Mr.
Cobeo depends on what Mr. Cobeo’s status was. Ms. Cross urges the court
to conclude that Mr. Cobeo was a member of the Evans household. To this
end, she submits evidence that Mr. Cobeo lived at the house as a primary
residence for 13 years, shared expenses with Ms. Evans, actively
participated in raising Ms. Cross and her sibling, shared household financial
responsibilities, and even took out a mortgage with Ms. Evans on the house
for improvement projects.?? Plaintiff does not directly dispute this evidence

       1
          Ms. Cross establishes much of this evidence through her affidavit.
Plaintiff argues that much of this information is inadmissible because it is
hearsay. The court disagrees as Ms. Cross was a firsthand witness to Mr. Cobeo’s
living habits, watched the parties share expenses, and talk about their
commitment. While her testimony may be hearsay to the details of such facts as
the mortgage, which Ms. Cross supports through other documentation, the
important and admissible fact is that Mr. Cobeo portrayed himself as a part of the
but notes that Mr. Cobeo never married Ms. Evans and was never added to
the house’s title.

        Vermont has maintained the traditional common law approach to
landowner liability. Farnham v. Inland Sea Resort Properties, Inc., 2003
VT 23, at ¶ 9 (mem.); cf. 1 D. Dobbs, The Law of Torts § 237 (2001)
(discussing the trend in jurisdictions to abolish the categories of premises
liability). As such, it has maintained the distinction in liability between the
various categories of trespassers, licensees, and invitees as codified in the
Restatement (Second) of Torts. Farnham, 2003 VT 23, ¶ 9 (adopting and
applying §§ 329 and 330 of the Restatement); see also Lomberg v. Renner,
121 Vt. 311, 314 (1959). In this case, Plaintiff seeks to portray Mr. Cobeo
as an invitee, whose presence on the property was primarily as a benefit to
Ms. Evans. This would create a higher duty of care in Ms. Evans to protect
Mr. Cobeo from dangerous conditions of which she knew or should have
known. Restatement (Second) of Torts § 343. Ms. Cross contends that Mr.
Cobeo can only be a licensee as the facts show that he was a member of the
Evans household and family.

       At a minimum, Ms. Cross’s evidence shows that Mr. Cobeo lived
continuously and primarily at the Evans house for 13 years. He took an
active part in family affairs. He shared expenses and responsibility for the
house, but he did not pay “rent” or an equitable equivalent. For all intents
and purposes, he acted, and was treated, as Ms. Evans’s domestic partner
and Mr. and Ms. Cross’s step-father. These facts effectively demonstrate
that Mr. Cobeo qualifies as a member under either plain meaning of

household to the family and to world and Ms. Evans accepted him as such.
Plaintiff while attempting to raise doubts about the factual record does not submit
any evidence to the contrary or any that would call into doubt Ms. Cross’s
assertions. V.R.C.P. 56(e).
household or any further refinement offered by the Restatement. Oxford
American Desk Dictionary 2d., at 392 (2001) (defining household as
“occupants of a house regarded as a unit”); Restatement (Second) of Torts §
382 cmt. b (“all persons living in the residence of the possessor, as
members of his family, guests, or domestic servants.”).

       The Restatement defines members of a possessor’s (landowner’s)
household, except boarders or paying guests and servants, as licensees.
Restatement (Second) of Torts § 330 cmt. h. As licensees, members of the
possessor’s household are obliged to take the ordinary and prevailing
condition of the premises as they find them. Lomberg, 121 Vt. at 315;
Restatement (Second) of Torts § 341. The owner’s duty is to avoid any
affirmative negligence or inflicting intentional harm. 62 Am. Jur. 2d
Premises Liability § 159. In other words, Ms. Evans’s only duty to Mr.
Cobeo as a member of her household was to avoid harming him through
her actions and warning him to any known dangers. This may be
contrasted with the more constructive duty owed to business invitees,
which requires the landowner to protect them from harm of which the
owner knows or should have known. E.g., Garafano v. Neshobe Beach
Club, 126 Vt. 566, 570–71 (1967) (holding an owner to a higher, more
active duty of care for a business invitee that the owner has induced to enter
the premises).

        Plaintiff raises no facts that would support the inference that Ms.
Evans was aware of any problems in the furnace. Her death along with Mr.
Cobeo’s and the injuries to Mr. Cross bespeak quite the opposite. Thus,
Plaintiff cannot establish that Ms. Evans breached her duty to Mr. Cobeo as
a licensee in order to establish negligence for the purpose of premise
liability. If any negligence possibly attaches to this accident, it could only
come from a constructive—should have known—awareness. Under such a
duty Ms. Evans would have been responsible to have known about
problems in the furnace. But even under this duty, Plaintiff’s evidence is
insufficient. He provides no evidence that anyone in the household was
aware of problems with the furnace, that the furnace had a history of such
malfunctions, or even that it had shown signs which should have alerted
Ms. Evans to the impending danger.

        Plaintiff also suggests an affirmative duty to clean and maintain the
furnace. Notwithstanding the general lack of evidence in the record about
the household’s maintenance of the furnace, the court is loathe to create a
new and specific duty out of whole cloth when the factual record does not
compel such an outcome. Langle v. Kurkul, 146 Vt. 513, 519–20 (1986).
The record shows that Ms. Evans and Mr. Cobeo shared many of the
household duties equally. They shared expenses and chores. They acted as
partners. Despite Ms. Evans’s title to the property, there is no evidence that
she took proprietary control over certain parts of the house or prevented
Mr. Cobeo from maintaining and investing in the care of the house. It
would be unfair, then, to assign a specific duty for a particular maintenance
task to one or the other. The court simply will not hold Ms. Evans to such a
standard above Mr. Cobeo. Therefore, Ms. Evans did not owe Mr. Cobeo
any specific duty of care to maintain the furnace or otherwise monitor it for
undetected dangers.

     Based on the foregoing, Defendant Julie Cross’s motion for
summary judgment is Granted. Case is dismissed.

       Dated at Burlington, Vermont________________, 2005.




                                     ________________________________
Judge
