Mishkit v. Whitney, No. S0227-03 Cncv (Katz, J., Apr. 16, 2004)



[The text of this Vermont trial court opinion is unofficial. It has been
reformatted from the original. The accuracy of the text and the
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STATE OF VERMONT
Chittenden County, ss.:



MISHKIT

v.

WHITNEY




          RULING ON APPEAL FROM SMALL CLAIMS COURT

       Defendant dairy farmer appeals a small claims court determination
based on the court’s failure to consider or apply comparative negligence.
Plaintiff visitor parked on a farm road within the farm property looking to
show her granddaughter some animals. Visitor’s left front tire was on the
grass shoulder, but the bulk of her car remained on the road. This road runs
alongside the main barn and leads to a manure pond where tractor-pulled
manure spreaders load up. The road serves no other purpose but to provide
access to the pond and is used only at certain times of the year. The
manure spreaders which are large, cumbersome, and lumbering trailers
must be backed down the road to the pond as there is no turn-around. They
are inherently difficult to see around and are used within the farm property
for spreading manure on the fields. Despite their ungainly nature, they are
a useful implements to modern farming and a crucial part of dairy farming.
Dairying means cows; cows mean manure; manure must be put somewhere.

        Into this world, visitor entered and parked along the manure pond
road. She saw a manure spreader coming toward her car and watched how
it had to maneuver around the car. She hand signaled to the driver to see if
it was okay to park there. Although driver appeared to nod and return the
waive, he testified at trial that he had no idea what visitor was signaling
about. Despite this or because of this, visitor left her car in the road and
went into the barn to look for someone to show off the animals. When she
failed to find anyone, she came out of the barn and saw another manure
spreader backing into her car and crunching its right rear section.

       At trial, the court found in favor of visitor and held farmer liable for
the entire amount of damage. The court’s findings appear to be based on
three conclusions. First, the driver of the spreader coming up the road
owed visitor a duty to warn her off the road. Second, farmer was negligent
in not providing signage which would tell visitors not to park on the
manure road or otherwise direct them to the proper parking area. Third,
farmer was negligent in not equipping his tractors with rear view mirrors to
prevent accidents. Appeals from small claims court are on the record and
are limited to questions of law. V.R.S.C.P. 10. The small claims court’s
findings of fact will not be set aside unless they are clearly erroneous.
Gilbert v. Davis, 144 Vt. 459, 460 (1984).
        In this appeal, farmer challenges the court’s lack of any
consideration of comparative fault on the part of visitor. Under 12 V.S.A. §
1036, a negligence recovery may be reduced up to fifty percent by the
comparative negligence of the plaintiff or completely barred if the plaintiff
was fifty-one percent or more negligent. From the evidence at trial, farmer
adequately raised this issue. He introduced the fact that no one had ever
parked on the manure pond lane and that its purpose was well-known.
Plaintiff visitor was aware that she parked in an area where bulky farm
equipment was necessarily backing down a hill. This was not Dairyland, a
family theme park; plaintiff was not in a Dairyland parking lot. Hence,
there is a prima facie case for visitor’s negligence. See 57A Am. Jur.2d
Negligence §§ 154, 885 (1989) (foreseeability of the risk, avoidance of a
danger); see also 62A Am. Jur. 2d Premises Liability §§ 766, 772
(plaintiff’s duty to keep lookout, knowledge of danger). In its findings and
conclusions, the court made no mention of any duty or non-duty that visitor
owed to herself by her very presence and knowledge that she was parked on
a road with heavy equipment traffic. Section 1036 requires the negligence
of one party to be compared with the other’s and the recovery to be reduced
accordingly. See Gilman v. Towmotor Corp., 160 Vt. 116, 121 (1992)
(discussing the comparative requirements of § 1036 in a strict liability
context). Here farmer made out his prima facie case, which was not
rebutted by the evidence. As negligence is a question for the trier of fact, it
is not our place to make a determination or comparison at this time. Shea
v. Peter Glenn Shops, Inc., 132 Vt. 317, 318–19 (1974). But its absence
from the court’s decision suggests it was never considered.

      In accordance with 12 V.S.A. § 1036, this case is reversed and
remanded.
Dated at Burlington, Vermont________________, 2004.



                                   ________________________
                                                      Judge
