Hetman v. Lexington Mgt. Corp., No. 1225-02 CnC (Katz, J., May 4, 2004)

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STATE OF VERMONT                                       SUPERIOR COURT
Chittenden County, ss.:                            Docket No. 1225-02 CnCv


HETMAN

v.

LEXINGTON MGT. CORP.



                                  ENTRY
                  (Reconsideration of Summary Judgment)

       Senator Howard Baker famously asked of President Nixon “What
did he know and when did he know it?” Is not the same question apt and
ultimately determinative in this premises liability case: What should the
hotel have known and when should it have known it? Has plaintiff
presented evidence of what the lamp cord looked like prior to her
accident, and sufficiently prior to that accident that it should have been
seen and acted upon by the hotel in meeting its duty of reasonable care?

       Although plaintiff dribbles out a small amount of additional factual
evidence, in seeking reconsideration, the actual, factual, evidentiary
record remains sparse. If plaintiff is saying that a portion of the insulation
was missing when she looked at the cord after the accident, what does that
tell us of
C       what the cord looked like immediately prior to the accident?
C       how long the cord resembled its immediate, pre-accident
        appearance?
C       what degree of inspection would have been necessary to see that
        pre-accident defect?1
Until we can conclude that, with reasonable care, the hotel would have
noticed the defect, it remains speculative to conclude that its duty to
plaintiff was breached.

        Plaintiff suggests that the court “intuitively reasoned” that ordinary
care would not necessarily have discovered the injury-causing defect. Not
meaning to be defensive, we nevertheless persist in the conclusion that it
is plaintiff who is intuitive in her assertion that the defect would have
been observed in the exercise of reasonable care. In so persisting, we
even accede to plaintiff’s level of care, coming as it does from
professional fussbudgets, but continue to ask the same question: Had this
hotel visually checked this lamp cord, even the day before, what would it
have seen? Plaintiff’s answer, in terms of what she saw after the incident,
does not answer this question.

       Plaintiff also asserts the benefit of res ipsa loquitor. Circumstantial
proof of negligence under res ipsa requires proof of four elements: (1)
legal duty owing from defendant to exercise certain degree of care in
connection with particular instrumentality to prevent the very occurrence


       1
          It is in the details of this particular question where plaintiff fails to
establish a standard of reasonable care under the Carroll Towing analysis.
United States v. Carroll Towing, 159 F.2d 169 (2d Cir. 1947). We presumed in
our previous entry that any type of daily or close scrutiny as plaintiff is
suggesting would come with some not-insignificant burden to the defendant and
its industry, which, notwithstanding the potential severity of the injury, would
require proof of greater frequency to sustain. Hetman v. Lexington Mgt. Corp.,
No. 1225-02CnC, at 3 (Katz, J., Jan. 15, 2004).
that has happened; (2) the subject instrumentality at the time of the
occurrence must have been under defendants control such that there could
be no serious question concerning his responsibility; (3) the instrument
must be the producing cause of injury; and (4) the event which brought on
harm must have been such that it would not ordinarily occur except for
want of requisite care on the part of defendant as the person responsible
for the injuring agent. Gentles v. Lanctot, 145 Vt. 396, 398 (1985). The
second, or control, element of res ipsa was the focus of our court’s
attention in Hershenson v. Lake Champlain Motors, Inc., 139 Vt. 219
(1981). There it was held that the sellers of a Fiat could not be held liable
for unexplained odors emanating from its body, months after the sale.

       The fact that the odor was only discovered three months
       after delivery and almost 3,900 miles down the road
       indicates that the proof of this element is not made out. The
       purpose of this requirement is to allow for the inference that
       nothing by the defendant’s negligence could have caused the
       problem which is the subject of the litigation. Such an
       inference is clearly not warranted. . . .

139 Vt. at 224. Here, we are concerned with the bedside lamp cord in a
hotel room which is rented out to a different person almost nightly. What
sharp or hot object might have been placed on the exposed portion of that
cord, and who might have done so, are questions without answers. But
certainly defendant hotel did not have anywhere near the exclusive control
that would support the inference that it must have caused the problem.
Compare 40A Am. Jur.2d Hotels § 126 (res ipsa is largely inapplicable to
light bulbs and furniture, which are outside the hotel’s exclusive control);
with id. at § 125 (res ipsa applied where injuries have stemmed from
falling ceiling plaster and the hotel’s swimming pool).

      Eliminating res ipsa as a source of proof, we are back to ordinary
premises liability. Assuming plaintiff is correct that the cord constituted a
danger to her at the time of the accident, we remain denied of proof as to
when and how the hotel would have discovered the danger, employing
ordinary care.


      Case dismissed.


      Dated at Burlington, Vermont, _________________, 2004.



                                        __________________________
                                                             Judge
