Concord General Mutual Insurance Co. v. Gritman, No. 497-9-11 Wrcv (Teachout, J., January 22, 2015)

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                                                      STATE OF VERMONT

SUPERIOR COURT                                                                                   CIVIL DIVISION
Windsor Unit                                                                               Docket No. 497-9-11 Wrcv



CONCORD GENERAL MUTUAL INSURANCE CO. and
KEVIN FLANAGAN and LINDA FLANAGAN

           v.

NATHAN GRITMAN, et al.



                                                      DECISION
                                        Motion for Judgment as a Matter of Law/
                                          Alternative Motion for a New Trial

         In this case, Plaintiffs seek compensation for damages incurred by the Flanagans when
their vacation home was substantially destroyed in an overnight fire when they were not
occupying the property. Several Defendants met at the Flanagan home, started and maintained a
fire in a chiminea on the deck while they socialized with each other, and then left around 10:30
pm. By 4:00 am, the house was on fire. Default was entered against some of the Defendants,
and the case was tried before a jury against the remaining Defendants. The jury found Defendant
Dylan Stinson liable on the basis that he ‘acted in concert’ with others who were negligent.

      Mr. Stinson seeks judgment as a matter of law, or alternatively a new trial. Oral
argument was heard on January 15, 2015. Mr. Stinson was represented by Attorney John J.
Boylan, III. Plaintiffs were represented by Attorneys Renee L. Mobbs and Thomas C. Nuovo.

Motion for Judgment as a Matter of Law

       Such a motion will be granted only if there is no legally sufficient evidentiary basis to
support the judgment. V.R.C.P. 50.

        Mr. Stinson argues that the evidence did not support negligence on his part. That is not at
issue because the Special Interrogatories make clear that the jury did not find direct negligence
on the part of Mr. Stinson. The jury did find that he acted in concert with one or more negligent
persons as the basis of liability on his part.

         Mr. Stinson does not dispute that acting in concert with a negligent person is grounds for
liability as a matter of law in Vermont. He makes three other arguments in support of the
motion: that there was insufficient evidence of causation because of the gap in time between
when the Defendants left the Flanagan home at 10:30 pm and when the house was discovered to
be on fire at 4:00 am, that there was insufficient evidence of causation because the experts could
not say exactly what the mechanics of the fire were, and that there is insufficient evidence that
Mr. Stinson knew of the negligence of others and provided substantial assistance or
encouragement to others who were negligent.

        While it is true that there was a time gap between when the Defendants left the home and
the discovery of the home burning, there were two fire experts who testified that it was more
likely than not that the chiminea fire on the deck was the source of the house fire. Their
testimony provided sufficient evidence of causation, and the jury was entitled to credit their
testimony.

        The fire experts were not able to identify the exact mechanics of the fire. Four
possibilities were identified: excessive heat caused the wooden boards under the chiminea to
become hot enough to ignite, an ember popped out of the chiminea and caught fire, a leg of the
chiminea was unstable and collapsed, sending embers out that spread the fire, or the chiminea
was pushed or fell over, sending embers out that spread the fire. Mr. Stinson argues that because
the experts were unable to pinpoint the exact mechanics of how the fire spread from the chiminea
to the house as a whole, there was insufficient evidence of causation.

        Despite not being able to describe the exact mechanical course of the fire, the experts’
testimony was sufficient to isolate the fire in the chiminea as the cause of the house fire that
destroyed the home. This was admissible testimony, despite the fact that it did not include
mechanical details. 985 Assoc. Ltd. v Daewoo, 2008 VT 14. The jury was entitled to rely on it,
and it provided a sufficient evidentiary basis for causation.

         Finally, Mr. Stinson argues that there was insufficient evidence that he knew of the
negligence of others and provided substantial assistance or encouragement to others who were
negligent. He argues that simply having a fire is not negligent, and that simply being present at a
social gathering where a fire is burning is not sufficient to establish liability for consequences of
the fire on the basis of ‘acting in concert.’

         Granted that simply having a fire is not necessarily negligence by itself, having a fire
without taking sufficient precautions to make sure that it is managed properly and completely
extinguished is negligence. The jury had evidence that Mr. Stinson was part of the group that
had the fire in the chiminea while they socialized and that all participated in the enjoyment of the
fire as part of the party, that at times the fire was so hot that they could not get near it, and that
the members of the group were young people who had assembled to drink alcohol and party at
someone else’s home without permission, from which the jury could infer poor judgment in their
conduct generally, including management of the fire. The jury had evidence of reckless conduct
on the part of group members, including the evidence that Mr. Stinson himself climbed onto the
roof of the house and threw bricks down onto the deck where the fire was in the chiminea. The
jury had sufficient evidence to conclude that the fire was not the responsibility of any single
person but was a group enterprise, and that members of the group acted negligently when they
failed to stay long enough to make sure that the fire was properly extinguished, or specifically
delegate that task to one or more specified individuals who accepted the responsibility.




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         As to whether Mr. Stinson himself knew that the conduct of the others constituted a
breach of duty and whether he provided substantial assistance or encouragement, the jury had
evidence not only of his presence while a hot fire was being maintained by a group of youthful
partiers who were exercising poor judgment, but of his active reckless conduct as part of the
party in climbing on the roof and throwing bricks down onto the deck where the fire was in the
chiminea, and of his leaving without having made responsible provision for extinguishment of
the fire.

         This case is not like Lussier v Bessette, 2010 VT 104, in which other members of a
hunting group could not know that one would point his gun at an inappropriate target. It is an
inherent part of having a fire that sufficient care must be taken to prevent the fire from spreading,
which could happen in a variety of ways as a matter of mechanics but all of which must be
avoided. Where the fire is the venture of a group and not the responsibility of a specified
individual, and there is evidence of lack of care on the part of members of the group in managing
the fire, and there is evidence that a member who knowingly participated in the group activity of
that fire and encouraged the lack of attention to it through his own reckless conduct, there is
sufficient evidence for the jury to find that such person was acting in concert with negligent
persons under the standards set forth in the Restatement.

        Mr. Stinson argues that there was insufficient evidence of fair market value of the
personal property to support the damages award. He argues that Plaintiffs’ expert testified as to
actual cash value and not fair market value. However, Mr. Flanagan also testified about the fair
market value of the property. There was sufficient evidence to support the damages award.

Alternative Motion for New Trial

        Mr. Stinson argues for a new trial on the grounds that the jurors were motivated by
passion or prejudice by the evidence that the Defendants were drinking and trespassing. The
facts that the Defendants were on the Flanagan property without permission and that they were
drinking alcohol were undisputed facts about the circumstances of the case. These facts were not
presented at trial in an inflammatory manner. There is not a basis to conclude that the jurors
were unduly prejudiced.

        Mr. Stinson also argues that the jurors were influenced by learning that judgment had
been entered against Defendants who were named but did not participate in the trial. He argues
that the jurors were likely to have concluded that the court had found them liable, and then
impermissibly imputed liability to Mr. Stinson. At trial the jurors were told that judgment was
entered against absent Defendants so that jurors would not conjecture about their status, but the
jurors were specifically informed that the basis of such judgment was the failure to respond to
the lawsuit. The jurors were instructed about their own responsibility in deciding the case based
on the evidence and the instructions of law. The jurors found another Defendant not liable.
There is no reason to think they did not carry out their task responsibly.




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                                        Order

Based on the foregoing, Defendant Stinson’s Motion is denied.

Dated this 20th day of January, 2015.


                                                ____________________________
                                                Hon. Mary Miles Teachout
                                                Superior Judge




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