2014 VT 52


Buxton v. Springfield Lodge No.
679, Loyal Order of Moose, Inc. and Merrill (2012-398)
 
2014 VT 52
 
[Filed 23-May-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 52

 

No. 2012-398

 

Michael R. Buxton


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Windsor Unit,


 


Civil Division


 


 


Springfield Lodge No. 679, Loyal
  Order of Moose, Inc. and Robert Merrill, Sr.


November Term, 2013


 


 


 


 


Theresa
  S. DiMauro, J. (summary judgment); 
Harold E. Eaton, Jr., J.
  (judgment as matter of law)


 

John J. Boylan, III and John D.
Willey, Jr. of Boylan Associates, P.C., Springfield,
for 
  Plaintiff-Appellant.
 
Matthew D. Anderson of Pratt Vreeland Kennelly Martin &
White, Ltd., Rutland, for
  Defendants-Appellees.
 
 
PRESENT:  Reiber, C.J.,
Dooley, Skoglund, Robinson and Crawford, JJ.
 
 
¶ 1.           DOOLEY,
J.   Plaintiff appeals two superior court decisions in this
personal-injury negligence action: (1) an order dismissing all claims against
defendant Robert Merrill, Sr., in his individual capacity, on summary judgment,
and (2) an order granting partial judgment as a matter of law during trial,
concluding that any liability of defendant Springfield Lodge No. 679, Loyal
Order of Moose, Inc., could not be predicated on the action or inaction of Mr.
Merrill, Sr., its governor.  We affirm both decisions.
¶ 2.           We
treat each appealed decision separately, beginning with the summary judgment
order.  We review summary judgment decisions de novo.  Doe v.
Forrest, 2004 VT 37, ¶ 9, 176 Vt. 476, 853 A.2d 48. 
In doing so, we apply the same standard as the trial court.  Id. 
We therefore affirm a grant of summary judgment if “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law.”  V.R.C.P. 56(a).  In
reviewing the facts, “we give the nonmoving party”—in this case, plaintiff—“the
benefit of all reasonable doubts and inferences.”  Doe, 2004 VT 37, ¶ 9.  
¶ 3.           At
the time of the summary judgment order, the record reflected the following basic
sequence of events, viewed in the light most favorable to plaintiff. 
Plaintiff, a party guest, was injured during a New Year’s Eve party hosted by
the Springfield Lodge when a fight broke out between two other party
guests.  The combatants were Danny Snide and Robert Merrill, Jr., the
adult son of defendant Robert Merrill, Sr.  Merrill, Sr. and his
spouse—Merrill, Jr.’s mother—were both present at the party.  At the time,
Merrill, Sr. was the governor of the Lodge, the highest position in the Lodge
hierarchy.  In this position, Merrill, Sr. was an unpaid volunteer.
¶ 4.           Merrill,
Jr. had a reputation as a “hothead” and a “fighter.”  He was bickering
throughout the night with Snide about arm wrestling, which is forbidden by
Lodge policy.  Snide’s spouse claimed that
Merrill, Jr. was challenging Snide to arm wrestle and that she complained about
this behavior to Merrill, Sr., who did not take immediate action to stop it.
¶ 5.           Eventually,
there was a scuffle of some kind in the men’s room involving Merrill, Jr. and
an unnamed man.  Merrill, Jr.’s mother broke it up.  Merrill, Sr.
arrived and asked another person to keep Merrill, Jr. in the bathroom while
Merrill, Sr. went to look for the unnamed man.  Merrill, Jr. escaped the
bathroom and began fighting Snide.  In the resulting commotion, plaintiff
was injured.[1]
¶ 6.           In
addition to alleging these events, plaintiff submitted selected pages from an
Orientation Guide for New Officers stating that the duties of the governor of
the Lodge include “Chair[ing] the House
Committee.”  The Orientation Guide also states that the house committee
“supervises all aspects of the social quarters operation, including: . . . members[’] access to, and
conduct within the lodge social quarters.”  The Guide further says:  
Other
than the Governor’s authority to fine, a member of the House Committee has no
authority in the social quarters as an individual.  In cases of misconduct
committed in his presence, he should exercise authority only if the person in
charge is unavailable, and he has been so authorized by the House Committee.[2] 
 
¶ 7.          
To survive summary judgment on a claim involving Merrill, Sr.’s individual
liability for negligence in this matter, plaintiff must make a prima facie
showing that Merrill, Sr. owed some duty of care to plaintiff.  Rubin v. Town of Poultney, 168 Vt. 624, 625, 721 A.2d 504,
506 (1998) (mem.) (“Absent a duty of care, an
action for negligence fails.”).  A duty is an “obligation, to which
the law will give recognition and effect, to conform to a particular standard
of conduct towards another.”  Smith v. Day, 148
Vt. 595, 597, 538 A.2d 157, 158 (1987) (quoting W. Keeton et al., Prosser and
Keeton on the Law of Torts § 53, at 356 (5th ed. 1984)).  The
existence of a duty “is primarily a question of law.”  Endres
v. Endres, 2008 VT 124, ¶ 11, 185 Vt. 63, 968 A.2d 336.  The court determines whether a duty is
owed, as well as the scope of any duty that is owed.  2 D. Dobbs et al., The Law of Torts § 251, at 2 (2d ed. 2011).
¶ 8.           This
case turns on whether Merrill, Sr. owed a duty to plaintiff to take some action
to prevent the fight that caused plaintiff’s injury.  In addressing this
alleged duty, we note that in general a person does not have an affirmative
duty to “protect, aid or rescue” another.  Id.; Williams v.
Cunningham Drug Stores, Inc., 418 N.W.2d 381, 382 (Mich. 1988) (stating
that “as a general rule, there is no duty that obligates one person to aid or
protect another” in common-law tort).  Nor, generally, is there a duty “to
control the conduct of a third person as to prevent him from causing physical
harm to another.”  Sorge v. State,
171 Vt. 171, 176, 762 A.2d 816, 819 (2000) (quoting Restatement (Second) of
Torts § 315 (1965)); accord Peck v. Counseling Serv. of Addison Cnty., Inc., 146 Vt. 61, 64-65, 499 A.2d 422, 425
(1985). 
¶ 9.           In
essence, plaintiff is arguing that an exception to this general rule applies
here such that Merrill, Sr. had a duty to plaintiff defined by his
responsibilities as governor of the Lodge.  We conclude that the most
accurate way to evaluate plaintiff’s argument is as an assertion that Merrill,
Sr. voluntarily assumed the responsibilities assigned to the governor and in
doing so undertook “to render services to [the
Lodge] . . . which he should recognize as necessary for the
protection of a third person.”  Restatement (Second) of
Torts § 324A (1965).  The third person, under this claim, is a
member or social guest who is using Lodge facilities.  This duty is
defined by the responsibilities Merrill, Sr. assumed as governor.
¶ 10.       This is a
familiar argument.  We have decided a number of cases under Restatement
§ 324A.[3] 
See Kennery v. State, 2011 VT 121,
¶ 13, 191 Vt. 44, 38 A.3d 35 (summarizing § 324A decisions).  In
Kennery, we found a duty under § 324A
where police officers undertook, at the request of a daughter, to check on the
condition of her mother who was living alone and did not answer her daughter’s
phone calls.  Plaintiff alleged that the officers negligently breached the
duty by going to the wrong house and reporting that the mother was not home,
when in reality she had fallen and was lying seriously injured outside of her
home unable to get help.  In one of our earlier cases, we relied in part
upon a statute to define the undertaking of a duty to a third party.  Sabia v. State, 164 Vt. 293, 299, 669 A.2d
1187, 1191-92 (1995); compare Andrew v. State, 165 Vt. 252, 260, 682
A.2d 1387, 1392 (1996) (finding no undertaking of duty in State regulatory
inspection of private workplace).
¶ 11.       In this case, at
the summary judgment stage, plaintiff did not articulate a viable theory under
which the governor of the Lodge[4]
had a duty of care towards the Lodge’s New Year’s Eve party guests or a duty to
control Merrill, Jr.[5]
 The only description of Merrill, Sr.’s relevant responsibilities as
governor in the summary judgment record is contained in the Orientation Guide,
a summary of which is set out above.  Supra,
¶ 6.  Nothing in the language of the Guide suggests that the
governor has a personal responsibility to prevent the misconduct of others on
Lodge property or to warn staff about impending misconduct.  Whatever duty
Merrill, Sr. undertook as governor, it did not include the duty plaintiff
asserted.  For that reason, the trial court’s summary judgment decision
dismissing the claims against Merrill, Sr. is correct in its result.[6]  
¶ 12.       We also conclude
that the court could have gone further and provided the Lodge summary judgment
on the claims against it that were premised on a theory of common-law respondeat superior for the action or inaction of Merrill,
Sr.  The trial court ruled instead that there was “a question at trial as
to whether Mr. Merrill [Sr.] should have made more of an effort to notify the
bartenders or other security . . . , depending on whether
or not lodge officials have any responsibilities during social events when they
are ‘off duty.’ ”  Our ruling above with
respect to Merrill Sr.’s duty applies to a duty to warn as well as a duty to
act.  Nothing in his duties as governor includes a duty to warn Lodge
staff about threats of inappropriate conduct by Lodge guests.
¶ 13.       The definition of
respondeat superior is “[t]he doctrine holding an
employer or principal liable for the employee’s or agent’s wrongful acts
committed within the scope of the employment or agency.”  Black’s Law
Dictionary 1338 (8th ed. 2004).  In other words, respondeat
superior, or vicarious liability, requires the agent to commit some wrongful
act—a tort or contract violation, for instance—for which the principal could
also be held liable.  See In re Desautels
Real Estate, Inc., 142 Vt. 326, 337, 457 A.2d 1361, 1366 (1982) (“The law
of vicarious liability has long been recognized in Vermont as but an outgrowth
of the maxim respondeat superior.  Vicarious responsibility has been defined
as an indirect legal responsibility, as for example, the liability of . . . a principal for the torts and
contracts of his agent.” (citation omitted)). 
Alleging respondeat superior based on tort thus
requires a prima facie showing of all elements of the agent’s tort, including
the agent’s legal duty.  See Fairchild Square Co. v. Green Mountain
Bagel Bakery, Inc., 163 Vt. 433, 442, 658 A.2d 31, 36 (1995) (“[C]orporate employers are not responsible for damages unless a
person covered by the doctrine of respondeat superior
is negligent.”).  
¶ 14.       There are some
exceptions to this common-law rule, for instance where liability is statutorily
imposed on a principal specifically without individual liability for the agent,
see, e.g., Payne v. U.S. Airways, Inc., 2009 VT 90, ¶ 21, 186 Vt. 458,
987 A.2d 944 (explaining federal courts’ interpretations of Title VII as
imposing this kind of liability and declining to adopt the same interpretation
of the state statutory analog), or where the duty of the principal is nondelegable, see, e.g., Dunham v. Chase, 165 Vt.
543, 543-44, 674 A.2d 1279, 2180 (1996) (mem.) (stating that duty of employer to provide a safe workplace,
statutorily imposed, is nondelegable and
corporate).  An agent is also typically not liable for purely economic
harm—but is liable for physical harm—arising out of failure to perform a duty
owed to a principal.  Restatement (Second) of Agency
§ 352 (1958).  
¶ 15.       Such exceptions
do not apply—and have not been alleged—in this case.  In this common-law
tort action, if Merrill, Sr. committed no wrongful act or failure to act, the
Lodge cannot be held liable for his actions or inactions.  Thus, the trial
court should have also awarded the Lodge summary judgment on plaintiff’s claims
that the Lodge was liable based on Merrill, Sr.’s negligence.
¶ 16.       Instead, the
court allowed the respondeat superior claims for Merrill,
Sr.’s negligence to go to trial.  Eventually, the court granted the Lodge
judgment as a matter of law on these claims.  Plaintiff challenges that
decision on appeal, relying primarily on evidence presented at the trial.[7]  Plaintiff relies particularly on
testimony from Merrill, Sr. that one of his duties as governor, as described in
section 35.1 of “The General Laws: The Constitution and Bylaws of Moose
International and the Supreme Lodge of the Loyal Order of Moose” [Moose
Bylaws], is to “[m]aintain order” at the Lodge.[8]  Plaintiff also relies on sections
48.1 and 48.9 of the Moose Bylaws, admitted at trial, which state that the
“government, regulation and control of all social quarters . . . maintained
by a lodge shall be vested in a House Committee,” that the house committee is
chaired by the governor, and that “[d]uring all
social functions, it is the duty of the House Committee to enforce and maintain
proper decorum at all times.”  Plaintiff relies on this evidence on appeal
to argue that the trial court erred in granting both partial summary judgment
in favor of Merrill, Sr. and partial judgment as a matter of law with respect
to the Lodge’s vicarious liability for Merrill, Sr.’s actions.  
¶ 17.       In reviewing the
trial court’s grant of judgment as a matter of law, we review the evidence in
the light most favorable to plaintiff—the nonmoving party—and exclude any
modifying evidence.  Seewaldt v. Mount Snow, Ltd., 150 Vt. 238, 239-40, 552 A.2d 1201,
1201-02 (1988).  Judgment as a matter of law will not be upheld
“where there is any evidence fairly and reasonably tending to justify a verdict
in the nonmoving party’s favor.”  Id.  If plaintiff fails to
present evidence on an essential element of the case, however, judgment should
be granted for defendant.  Id. at 240, 552 A.2d
at 1202.  In addition, although “any evidence fairly and reasonably
supporting the nonmoving party’s claim” is not an “exacting standard,” Grann v. Green Mountain Racing Corp., 150 Vt.
232, 233, 551 A.2d 1202, 1203 (1988) (quotations omitted), “the evidence
supporting the claim must be more than a scintilla.”  Peterson
v. Post, 119 Vt. 445, 451, 128 A.2d 668, 671 (1957). 
¶ 18.       As with the summary
judgment motion, the motion for judgment as a matter of law centered on the
asserted failure of plaintiff to demonstrate that Merrill, Sr. had a duty, of
sufficient scope, to impose liability on him for its breach.  As we stated
above, supra, ¶ 7, the motion raises primarily a question of law,
not fact.  
¶ 19.       In evaluating
plaintiff’s duty claims, we start with plaintiff’s argument that the governor’s
responsibilities as chair of the house committee are sufficient to impose the
necessary duty.  We do not have to reach the merits of this claim because
plaintiff abandoned during trial his argument that Moose Bylaws section 48.9,
stating the house committee’s responsibility “to enforce and maintain proper
decorum,” gave rise to any duty of the governor to act differently than he
did.  When asked by the court to point to a particular section of the
Moose Bylaws that supported the governor’s duty, plaintiff’s counsel cited only
this section.  Defense counsel argued briefly that section 48.9 did not mean
that the house committee was under an obligation to take action “on the spot,”
but rather, as summarized by the court, the house committee was obligated only
after the fact “to investigate and figure out what went on and to take
appropriate remedial action.”[9] 
Moments later, plaintiff’s counsel abandoned his argument.  The court
asked: “Are you suggesting that the [house] committee had some obligation, or
members thereof, to step in that evening and do something based on this
[section 48.9]?”  Plaintiff’s counsel responded, “I did, but I’ll withdraw
that.”  In summarizing his argument against the Rule 50 motion, he again
stated, “I’ll withdraw what I was saying about that specific section [48.9] of
the Bylaws.”  Plaintiff’s counsel pointed to no other section of the
Bylaws in support of his argument at that time.  A concession made
absolutely without qualification is “a judicial admission and a binding waiver
of the issue.”  Granite City Coop. Creamery v. B
& K Cheese Co., 115 Vt. 408, 412, 63 A.2d 193, 196 (1949).
¶ 20.       Even if plaintiff
had not abandoned his theory as based on Moose Bylaws section 48.9
specifically, his general theory that the responsibilities of the house
committee were breached, that Merrill, Sr. was responsible for that breach as
chair of the committee, and that the Lodge was responsible for Merrill, Sr.’s
negligence, has two glaring weaknesses.  First, while the house committee
may be responsible for maintaining decorum, the Bylaws are clear that they must
do so through after-the-fact disciplinary action, as the trial court found.
 There is no authorization for on-the-spot action to stop decorum
violations, much less any responsibility for such action.  Second, the
Bylaws state in § 35.8 that the governor is chairman of the house
committee “for the sole purpose of presiding at the meetings.”  Plaintiff
would have us infer that because Merrill, Sr. was chair of the house committee,
he had some special enforcement responsibility.  That inference is
inconsistent with the Moose Bylaws.
¶ 21.       Plaintiff also
relies upon the governor’s general responsibility to “[m]aintain
order,” as stated in the Moose Bylaws section 35.1.  The general
responsibility statement in that section is followed by twelve descriptions of
specific responsibilities in Moose Bylaws sections 35.2 through 35.14.
 None of these specific responsibilities relate to preventing misconduct
in Lodge facilities or warning staff of the presence of such misconduct. 
Plaintiff asks us to infer that a general responsibility to “maintain order”
includes a responsibility to prevent misconduct in the dining and bar area of
the Lodge—and, specifically, to warn the bartenders of the possibility that a
fight was brewing.  
¶ 22.       Plaintiff would
have us recognize a very broad and unworkable duty for a volunteer
officer.  Under the duty plaintiff asserts, the governor would have to be
present at all times to monitor the facilities and prevent improper
actions.  We cannot read the description of the governor’s responsibility
that broadly.  Indeed, his position as chair of the house committee
implies that he acts through that committee and not as a personal
enforcer.  We read the Moose Bylaw establishing the general
responsibilities of the governor as summarizing his responsibilities which are
then described in detail in the following sections.  In the absence of any
specific statement of responsibility describing the duty plaintiff seeks, we
cannot find in the general responsibility to “maintain order” either a duty to
prevent harm or a duty to warn of impending harm as plaintiff asserts.
¶ 23.       Moreover, even if
we were to say that the governor’s responsibilities as expressed in the Moose
Bylaws were generally sufficient to get plaintiff’s claim against the Lodge to
the jury, plaintiff faces an additional insurmountable obstacle.  In its
Rule 50 decision the trial court correctly stated that “[t]he evidence
establishes without contradiction here that the social patrons of the Lodge, whether
they be officers or not . . . are
no longer in control. . . .  And that once they take a
drink they no longer are in the position of having any obligation.”  The
trial court also correctly stated that the evidence showed unequivocally that
“Merrill, Sr. was a patron of the social quarters on the evening in
question.”  Thus, even if Merrill, Sr. generally had the duty urged by
plaintiff, all the rest of the evidence at trial showed without contradiction
that any regular duties he had did not apply during the incident.  
¶ 24.       Plaintiff has not
cited any evidence that would “fairly and reasonably” tend to overcome Merrill,
Sr.’s status as a social patron that night.  Seewaldt,
150 Vt. at 239-40, 552 A.2d at 1201-02. 
Plaintiff argues instead that an officer’s status as a social patron “does not
go so far as to prohibit [the officer] from reporting incidents to those who . . . have authority.” 
Plaintiff also claims that because Merrill, Sr. did eventually take some action
in response to the complaint about the bickering—in fact, he talked to
plaintiff about it—and because he responded when the actual fight broke out, he
was not prohibited from taking such responsive action.  The absence of a
prohibition on Merrill, Sr. from taking some action does not create a duty to
take that action.  Merrill, Sr.’s status as a social guest in the Lodge
dining and bar facility is an additional reason why he had no duty to plaintiff
to prevent the incident that caused injury to him and why the Lodge has no
liability based on Merrill, Sr.’s inaction.
¶ 25.       In sum, we are
not convinced to overturn the Rule 50 decision any more than we are convinced
to overturn the summary judgment ruling.
Affirmed.
 

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 





[1] 
Like Merrill, Sr., plaintiff was also a Lodge official, the Lodge
administrator.  Defendant, Merrill, Sr., claimed that plaintiff had more
responsibility for social activities within the Lodge than defendant.


[2]
 In his briefs, plaintiff relies upon the responsibilities of the house
committee, as described in the bylaws of Moose International, as binding on the
Lodge.  This reliance is inappropriate because the bylaws first entered
this case as evidence at trial.  They were not part of the record on which
the trial court made its summary judgment decision.  We do not consider
them in addressing the validity of the summary judgment ruling.


[3] 
To come within § 324A, plaintiff must show that the governor should have
recognized that the services involved were “necessary for the protection of a
third person” and either (a) “his failure to exercise reasonable care increase[d]
the risk of such harm” or (c) “the harm [was] suffered because of reliance of
the other or the third person upon the undertaking.”  Restatement, supra,
§ 324A(a), (c).  Because we focus on whether
there was a sufficient undertaking, we do not evaluate whether these elements
were met.


[4] 
We note that Merrill, Sr. is a voluntary officer of the Moose Lodge serving
without compensation.  To the extent that plaintiff alleges that Merrill,
Sr.’s personal liability should be premised on his good-faith, but negligent,
execution of his official duties as a volunteer officer of a tax-exempt
organization, such personal liability is prohibited by statute unless he was
grossly negligent or committed an intentional tort.  12
V.S.A. § 5781(1); see also 42 U.S.C. § 14503 (limiting
liability for volunteers under federal law).  The record does not show
whether the Lodge is a tax-exempt organization, and neither party has cited the
statute.  For these reasons, we do not rely upon it.  We note,
however, that if the statute applies, this is exactly the type of litigation
that the statute was intended to prevent.
 
This statutory tort immunity for individual volunteers
is not mirrored by any tort immunity for tax-exempt organizations in Vermont,
so it has no bearing on the Lodge’s liability for Merrill, Sr.’s actions. 
See generally Foster v. Roman Catholic Diocese of Vt., 116 Vt. 124, 137,
70 A.2d 230, 237 (1950) (refusing to adopt the charitable-immunity doctrine for
organizations).
 


[5]
 Plaintiff originally advanced a theory based on Merrill, Sr.’s obligation
to control his son’s conduct because the son’s criminal probation conditions
required him to live with his parents and imposed on them the obligation to
report any probation violations.  Plaintiff has not renewed this theory on
appeal.
 


[6]
 The court concluded that an agent, or bar employee, could not be held
personally liable when acting on behalf of a principal employer.  As
plaintiff points out on appeal, this is an incorrect statement of our law of respondeat superior.  In Daniels v. Parker, we
held that agents and principals may be held jointly and severally liable for
the negligence of the agent.  119 Vt. 348, 355, 126 A.2d
85, 89 (1956).  In responding to the court’s decision, plaintiff
cites our statement in Daniels that “[t]he servant is liable for his own
negligence at all times, irrespective of whether his agency position is
recognized or not.”  Id. at 354, 126 A.2d at 88 (quotation
omitted); see also Restatement (Second) of Agency § 343 (1958) (“An agent
who does an act otherwise a tort is not relieved from liability by the fact
that he acted at the command of the principal or on account of the principal,
except where he is exercising a privilege of the principal . . . or
where the principal owes no duty . . . .”).  We agree
that the ground for the court’s ruling was in error.  However, we conclude
that summary judgment against plaintiff was appropriate.
 
The court also gave plaintiff an opportunity to
augment its summary judgment motion filing to show “the actual responsibilities
of ‘off duty’ lodge officials during events such as the New Year’s Eve Party at
issue.”  Plaintiff failed to do this.
 


[7]
 We accept for purposes of this argument that plaintiff may seek review of
the judgment as a matter of law against the Lodge despite the fact that the
trial court should have granted summary judgment to the Lodge.  We are not
holding, however, that the Lodge would not have prevailed based on the summary
judgment record alone.  The Lodge has not urged us to decide this appeal
based on the error in ruling on the summary judgment motion.
 
Under this procedural posture, we recognize that we
must analyze the judgment with respect to the evidence at trial, including the
additional evidence of Merrill, Sr.’s responsibilities as governor of the
Lodge.
 


[8]
 It is undisputed that these bylaws are binding on the Lodge.


[9] 
This interpretation is also supported the Lodge Orientation Guide for New
Officers, stating that: “Other than the Governor’s authority to fine, a member of
the House Committee has no authority in the social quarters as an individual. 
In cases of misconduct committed in his presence, he should exercise authority
only if the person in charge is unavailable, and he has been so authorized by
the House Committee.”  (Emphasis added.)  Even an “authority to fine”
may only be exercised ex post facto.



