2014 VT 107


Ainsworth v. Chandler and Chandler Electric Company,
Chandler v. Concord Group Insurance Company and Campbell & Boyd Insurance
Services (2013-084 & 2013-209)
 
2014 VT 107
 
[Filed 29-Aug-2014]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40
as well as formal revision before publication in the Vermont Reports. 
Readers are requested to notify the Reporter of Decisions by email at:
JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State
Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections
may be made before this opinion goes to press.
 
 

2014 VT 107

 

Nos. 2013-084 & 2013-209

 

Faye Ainsworth 


Supreme Court


 


 


     v.


 


 


On Appeal from


Charles Chandler and 
Charles Chandler Electric Company


Superior Court, Windham Unit,
Civil Division


 


 


Charles Chandler
 
     v.
 
Concord Group Insurance Company and 
Campbell & Boyd Insurance Services


November Term, 2013


 
 
Katherine A. Hayes, J.


 

Faye Ainsworth, Pro Se, Greenfield, Massachusetts,
Plaintiff-Appellant (13-084).
 
Charles Chandler, Pro Se, Newfane, Defendant-Appellee
(13-084) and Plaintiff-Appellant 
  (13-209).
 
Andrew C. Boxer and Robert D. Mabey
of Ellis Boxer & Blake PLLC, Springfield, for
  Intervenor-Appellee (13-084) and Defendant-Appellee (13-209) Concord Group
Insurance Co.
 
 
PRESENT:   Reiber, C.J.,
Dooley, Skoglund and Robinson, JJ.,
and Eaton, Supr. J.,
                    
Specially Assigned
 
 
¶ 1.            
REIBER, C.J.   These consolidated cases stem from
alleged injuries suffered by plaintiff Faye Ainsworth while she was at
defendant Charles Chandler’s business, Chandler Electric.  Plaintiff filed
suit, claiming that she was injured when she tripped on a coil of wires that
had been placed in the stairway.  Defendant filed suit against his
insurer, Concord Insurance Group (insurer), arguing that insurer had wrongfully
and in bad faith failed to provide adequate coverage for the claim. 
Insurer filed a counterclaim seeking a declaration of noncoverage. 
The court granted summary judgment to defendant, concluding that plaintiff was
a social guest of defendant at the time of her visit, that the duty of care
defendant owed her was the lesser duty applicable to licensees under Vermont
law, as contrasted with that owed to business invitees, and that defendant did
not breach this duty.  The trial court also granted summary judgment to
insurer, on the basis that the underlying personal injury action had been
dismissed and therefore no coverage was owed.     
¶ 2.            
On appeal, plaintiff and defendant both contest the court’s order
granting summary judgment in favor of defendant, and defendant contests the
order granting summary judgment in favor of insurer.  For the following
reasons, we affirm with respect to defendant’s motion to disqualify the trial
judge, but reverse with respect to plaintiff’s suit and reverse and remand for
further proceedings with respect to defendant’s claim against insurer and
insurer’s counterclaim for declaration of noncoverage.

¶ 3.            
We begin with the court’s ruling on insurer’s summary judgment
motion.  On appeal from a court’s decision to grant summary judgment, “[i]n reviewing the facts, we give the nonmoving party . . . the benefit of all reasonable
doubts and inferences.”  Buxton v. Springfield Lodge
No. 679, 2014 VT 52, ¶ 2, ___ Vt.
___, ___ A.3d ___.  The incident giving rise to these lawsuits
occurred on May 17, 2009, while plaintiff was at defendant’s business, Chandler
Electric.  At the time of the alleged injury, plaintiff had been dating
defendant for six years.  She later married him in 2010.[1]  According to plaintiff’s and
defendant’s depositions, plaintiff stated that her purpose that day was “just a
visit” to her boyfriend, the defendant.  Defendant understood that
plaintiff “came there because I was dating her.”  There were no other
people in the building at the time.  Upon entering the building, plaintiff
“came up to [defendant’s] office to say hello to [him].”  Accordingly,
plaintiff proceeded up a short flight of stairs to a landing, and then ascended
a longer set of stairs leading to defendant’s office.  Neither party
disputes that there were coils of wire stacked near the lower set of stairs,
but that nothing protruded into the stairway itself at that time.  
¶ 4.            
After visiting with defendant, plaintiff and defendant
left defendant’s office together, with plaintiff leading the way. 
Plaintiff walked down the longer set of stairs, but upon reaching the bottom of
the second set of stairs, she tripped and fell to the ground.  Plaintiff
claims that the coil of wire previously stacked to the right of the stairs
“caught [her] ankle” when she fell down.  She stated that, although she
saw nothing on the stairwell steps when she looked back at the stairs
immediately after falling, she did see a wire protruding into the stairwell
space from the spools sitting to the side of the stairwell.  She claims to
have sustained severe and permanent injuries as a result of the incident,
including partial blindness, a severe ankle sprain, scrapes and bruises, and a
fractured tooth.
¶ 5.            
The procedural history of the ensuing lawsuit is noteworthy.  On
March 22, 2010¾more than four months
before plaintiff filed her personal injury lawsuit on August 4, 2010¾defendant filed a lawsuit against his
insurer, claiming that it breached the terms of defendant’s liability policy by
not awarding plaintiff over one million dollars in compensation. 
Defendant claimed millions of dollars in damages for insurer’s alleged conduct,
including more than one million dollars “for the monetary compensation that he
will most likely have to pay [plaintiff] and her attorney as a result of [the
insurer’s] unlawful delay and denial of this claim.”  In its answer to
defendant’s complaint, the insurer denied all of the allegations and
counterclaimed for a declaration of noncoverage. 

¶ 6.            
On August 4, 2010, plaintiff filed the instant action, seeking over two
million dollars in damages.  Defendant answered the complaint by admitting
the factual allegations and conceding liability.  Upon learning of
the lawsuit and defendant’s admissions, insurer successfully moved to intervene
to defend its interests.  Insurer later filed a motion for summary
judgment on the grounds that plaintiff’s claims fail as a matter of law. It
argued that because plaintiff was a social guest at the time of the incident,
defendant’s duty of care only required disclosure of dangerous conditions known
to him, which he did not breach.  In her response to insurer’s summary
judgment motion, plaintiff claimed that she was a “[g]uest
and [c]ustomer” of defendant, that insurer’s sales
agent testified on deposition that there was a lot of debris around the
stairway of defendant’s business, and that the State had issued “violation
notes” after visiting the business premises in 2005.  On February 21,
2013, the trial court granted insurer’s motion for summary judgment against
plaintiff.  Defendant’s lawsuit against insurer was subsequently dismissed
as moot on May 13, 2013.
¶ 7.            
On appeal, plaintiff contends that the trial court erred in holding that
she was a social guest, and that defendant did not breach his duty of care to
her.  Defendant argues that because the court erred in granting summary
judgment in the underlying suit, the court incorrectly granted insurer’s motion
for summary judgment on mootness grounds.
¶ 8.            
We review the trial court’s decision using the same standard as the
trial court.  Sobel v. City of Rutland,
2012 VT 84, ¶ 12, 192 Vt. 538, 60 A.3d 625, 629.
 “We will affirm if there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.”
 Id.; see also V.R.C.P. 56(a).  Although the court must view
the pleadings and affidavits in the light most favorable to the non-moving
party, Beebe v. Eisemann, 2012 VT 40,
¶ 3, 192 Vt. 613, 49 A.3d 160, the nonmovant
bears “the burden of submitting credible documentary evidence or affidavits
sufficient to rebut the evidence of the moving party.”  Endres v. Endres,
2008 VT 124, ¶ 10, 185 Vt. 63, 968 A.2d 336.    

¶ 9.            
We begin with plaintiff’s claim that the court
wrongfully found that she was a social guest rather than a business
invitee.  The trial court applied Vermont’s traditional common law
standard of care in premises liability, which distinguished between business
invitees and licensees, or social guests.  See Farnham
v. Inland Sea Resort Props., Inc., 2003 VT 23,
¶ 9, 175 Vt. 500, 824 A.2d 554 (mem.).  Under the common law, a
possessor of land owed a business invitee a duty to use “reasonable care . . . so that the invitee will not
be unnecessarily or unreasonably exposed to danger,” whereas the duty to
licensees was merely to refrain from “active or affirmative negligence.”  Menard v. Lavoie, 174 Vt. 479, 480, 806 A.2d 1004, 1006
(2002).  Here, the court found the record to be mixed
regarding the purpose of plaintiff’s visit.  The parties did not dispute
that plaintiff was romantically involved with defendant at the time of her
visit, and plaintiff’s sworn deposition testimony indicated that she was at
defendant’s business “just to visit” defendant.  However, plaintiff also
indicated in response to insurer’s motion for summary judgment that she was a
customer at defendant’s business, and she produced a receipt showing that she
had bought three smoke detectors that day.  The court largely dismissed
plaintiff’s latter evidence, reasoning that, even if it accepted plaintiff’s
contention that she was a customer, her “primary reason” for visiting defendant
was social, not business-related.  Thus, she was properly considered a
licensee.   
¶ 10.         We have held that, where the facts do not conclusively
establish a plaintiff’s status, and a factfinder may
infer multiple purposes for a plaintiff’s presence on a defendant’s premises, the
question of whether the dominant purpose was business or social remains a
question of fact for the jury.  Farnham, 2003 VT 23, ¶ 11 (holding that summary judgment against
plaintiff was premature because determination of whether plaintiff was a
trespasser, invitee or licensee was question of fact).  We need not
reach the question, however, of whether the trial court in this case erred in
determining plaintiff’s status based on the primary purpose for her visit,
because we reverse and remand for further proceedings in light of our recent
abrogation of the common law distinction between invitees and licensees, as
held in Demag v. Better Power Equipment,
2014 VT 78, ¶ 26, ___ Vt. ___, ___ A.3d ___.  In accordance with Demag, on remand the trial court is to apply the
standard of “reasonable care under all the circumstances,” which “is no more
and no less than that of any other alleged tortfeasor.” 
Id. ¶¶ 26-27 (quotations omitted). 
In this determination, “[t]he entrant’s status, no longer controlling, is
simply one element, among many, to be considered in determining the landowner’s
liability under ordinary standards of negligence.”  Id.
¶ 26 (quotation omitted).[2]
¶ 11.          Were
we to conclude that plaintiff did not present sufficient evidence to raise an
issue of material fact on a claim of ordinary negligence,
we could affirm the trial court on alternate grounds.  See,
e.g., Cheney v. City of Montpelier, 2011 VT 80, ¶ 8, 190 Vt. 574, 27 A.3d 359 (mem.) (affirming trial court on
alternate grounds).  Plaintiff has presented sufficient evidence, however,
to defeat summary judgment under an ordinary negligence standard.  
“Common law negligence has four elements: a legal duty owed by defendant to
plaintiff, a breach of that duty, actual injury to the plaintiff, and a causal
link between the breach and the injury.”  Demag, 2014 VT 78,
¶ 6 (quotation omitted).  “ ‘Whether a defendant is negligent depends on whether
his or her action was objectively reasonable under the circumstances; that is,
the question is whether the actor either does foresee an unreasonable risk of
injury, or could have foreseen it if he conducted himself as a reasonably
prudent person.’ ”  Id.
¶ 27 (quoting Endres, 2008 VT 124, ¶ 13).
 Here, the trial court held that defendant had no duty to warn plaintiff of
the risk of injury from the piled coils of wire next to the stairs because the
wire was “clearly visible, and the risk [that it] might fall over and obstruct
the stairs was equally obvious to both the plaintiff and defendant.” 
Further, the court found that the piling of wires next to the staircases
“arguably did not create an unreasonable risk of harm.”   The trial
court concluded that there was insufficient evidence to defeat summary judgment
as to the elements of duty and breach.
¶ 12.         We
disagree.  Given plaintiff’s deposition testimony that she did not see the
wire in the stairs before she tripped, and defendant’s admissions that the area
was poorly lit, covered in debris, and unsecured, a reasonable jury could
conclude that either the danger was not open and obvious or that defendant
should have foreseen the harm even if the danger was obvious.  Thus, a
jury could find that defendant had a duty to make the condition safe or warn
plaintiff of the danger, and that he breached this duty.  Cf. Menard,
174 Vt. at 479-80, 806 A.2d at 1005-07 (holding defendants not liable for
negligence under either an invitee or licensee standard where danger of spiral
staircase was obvious to plaintiff, defendants had installed a guardrail, area
was well-lit, and there was no “foreign substance” on the stairs). 
Plaintiff also testified as to the elements of causation and injury, stating
that defendant’s breach caused the coiled wire to protrude into the stairwell,
inducing her to trip and injure herself.  Viewing the facts in the light
most favorable to plaintiff, plaintiff has presented a genuine issue of
material fact as to the elements of common law negligence sufficient to defeat
summary judgment.              
¶ 13.         Next,
we address defendant’s claim that his motions to disqualify the trial judge in
this case were wrongly denied.[3] 
Defendant filed numerous motions to disqualify the trial judge throughout the
course of litigation.  His motion filed on January 3, 2012, was
referred to an administrative judge, who denied the motion on January 23,
2012.  See V.R.C.P. 40(e)(3) (allowing judge to
rule on motion to disqualify or refer motion to administrative judge or her
designee).  In response to this adverse ruling, defendant again moved to
disqualify the trial judge, and also moved to disqualify the administrative
judge who ruled against him.  Defendant based his complaints against the
trial judge on the fact that she said on one occasion that she had not read
defendant’s case file; his disagreement with her rulings and handling of the
case; and an alleged financial conflict with her prior law firm.  He
claimed that the administrative judge harbored a bias against pro se litigants
and that she did not sufficiently investigate the trial judge’s behavior.
 
¶ 14.         Because
of the claim against the administrative judge, the administrative judge
referred defendant’s motions to a new superior court judge, who denied both
motions on May 7, 2012.  The court found that defendant’s allegations
against the trial judge amounted to “broad claims that [she] is prejudiced
against pro se litigants in general and against him in particular[,]
[which] have no meaningful support in the record and in the evidence he has
submitted.”  The court found defendant’s allegations regarding the judge’s
prior law firm to be “highly improbable,” considering that the alleged
financial dispute arose after the judge left the firm.  As to the
administrative judge, the court found that defendant provided no evidence to
support his claims that she was biased or that she had abdicated her
disciplinary responsibilities, and concluded that defendant’s allegations were
baseless.  Despite these adverse rulings, defendant filed yet another
motion to disqualify the trial judge on February 21, 2013, which was denied on
March 11, 2013 by the administrative judge for the same reasons as the superior
court’s prior decision.  On appeal, defendant
argues that the trial judge harbors prejudice against him due to his interactions
with her at her prior law firm, during defendant’s prior cases, and during the
instant case.  
¶ 15.          The
Code of Judicial Conduct provides that a judge “shall disqualify himself or
herself in a proceeding in which the judge’s impartiality might reasonably be
questioned.”  A.O. Canon 3E(1).  Judges are
“accorded a presumption of honesty and integrity, with [the] burden on the
moving party to show otherwise in the circumstances of the case.”  Ball v. Melsur Corp., 161 Vt. 35,
39, 633 A.2d 705, 709 (1993) (quotation omitted).  We will not
disturb a decision regarding disqualification unless “there has been an abuse
of discretion, that is, if the record reveals no reasonable basis for the
decision.”  Id. at 40, 633 A.2d at 710. 

¶ 16.         Here,
there is no basis to disturb the denial of defendant’s motions.  Defendant
has offered no evidence to lend factual support to any of his allegations of
prejudice.  The fact that the trial judge has previously ruled against him
does not, in itself, constitute evidence of bias.  See Liteky
v. United States, 510 U.S. 540, 555 (1994) (“[J]udicial rulings alone almost never constitute a valid basis
for a bias or partiality motion. . . .  Almost invariably,
they are proper grounds for appeal, not for recusal.”); Luce v. Cushing, 2004 VT 117, ¶ 23, 177
Vt. 600, 868 A.2d 672 (holding that “adverse rulings, no matter how erroneous
or numerous” are not sufficient to establish prejudice (quotation omitted).
 Regarding the trial judge’s law firm, in its May 2012 ruling the superior
court found that defendant’s dispute was with the firm, not the judge
specifically, and that the dispute arose after the judge left the firm. 
Contrary to these findings, defendant now argues on appeal that his financial
dispute was with this particular judge, not her law firm generally, and that
the dispute dates back to her days in practice.  Defendant did not raise
this argument below, and we need not reach the merits because his arguments
fail on preservation grounds.  Bull v. Pinkham Eng’g
Assocs., 170 Vt. 450, 459, 752 A.2d 26, 33 (2000) (“Contentions not raised
or fairly presented to the trial court are not preserved for appeal.”). 
Defendant’s motions before the trial court allude to a dispute with the judge’s
prior law firm, not the trial judge, and instead focus on her adverse rulings
and his perception that she was biased against pro se litigants without
discussing the specific facts raised on appeal.  Thus, defendant’s claims
fail.         
¶ 17.         We affirm the decisions denying defendant’s motions to
disqualify, and reverse the trial court’s grant of summary judgment in favor of
defendant.  As to defendant’s lawsuit against insurer, the court’s May 13,
2013 order granting summary judgment in favor of insurer hinged on its
dismissal of plaintiff’s claims.  Accordingly, we reverse the court’s
grant of summary judgment in favor of insurer and remand for further
proceedings consistent with this opinion. 
Affirmed as to the motions to disqualify; reversed and
remanded as to the grant of summary judgment in favor of defendant; and
reversed and remanded as to the grant of summary judgment in favor of insurer.
 
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Chief
  Justice

 





[1]  Plaintiff
states for the first time on appeal that she and defendant are no longer
married.


[2] 
We find Demag controlling based on “the
common-law rule, recognized in both civil and criminal litigation, ‘that a
change in law will be given effect while a case is on direct review.’ ” State
v. Shattuck, 141 Vt. 523, 529, 450 A.2d 1122, 1125 (1982) (quoting United
States v. Johnson, 457 U.S. 537, 543 (1982)).
      


[3] 
Defendant has filed a litany of motions to disqualify judges, court personnel,
and attorneys, all of which have been denied as lacking in merit.  In this
case, his primary arguments on appeal relate to his motion to disqualify the
trial judge.  Although he discusses allegedly unprofessional behavior by
insurer’s attorneys in his brief on appeal, his allegations appear to be aimed
at the way the judge has handled his case.



