Okundaye v. Driscoll, No. 83-3-10 Bncv (Wesley, J., May 12, 2011)

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                                STATE OF VERMONT

SUPERIOR COURT                                                                  Civil Division
Bennington Unit.                                                                Docket No. 83-3-10 Bncv

DEREK OKUNDAYE
    Plaintiff,

            v.

WILLIAM DRISCOLL
     Defendant.

                                              Opinion and Order on
                                          Motions for Summary Judgment

           Plaintiff Derek Okundaye was injured when Donald O’Dell struck him in the back
of the head with a crowbar at the Walk-in-the-Woods Motel in Woodford, Vermont. This
case represents Plaintiff’s attempt to hold the owner of the motel liable for the
intentional, criminal acts of Donald O’Dell. To this end, Plaintiff has asserted various
theories under which he believes the motel owner can be found liable for his injuries.
Currently pending is Defendant’s motion for summary judgment and Plaintiff’s motion
for partial summary judgment.
           Summary Judgment is appropriate “if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, referred to in
the statements required by Rule 56(c)(2), show that there is no genuine issue as to any
material fact and that any party is entitled to judgment as a matter of law.” V.R.C.P.
56(c)(3). Where both parties seek summary judgment, "each must be given the benefit of
all reasonable doubts and inferences when the opposing party's motion is being
evaluated." Northern Sec. Ins. Co. v. Rosenthal, 2009 VT 83, ¶ 4, 186 Vt. 578 (citation
omitted). Because the undisputed facts do not support any theory of liability,
Defendant’s Motion for Summary Judgment is GRANTED.
                                                                Facts
           The following facts are summarized in a light most favorable to the Plaintiff. In
February of 2009, Plaintiff was staying at the Walk-in-the-Woods Motel with his then
wife, Rebecca Lever. Ms. Lever was a month-to-month tenant who worked for
Defendant William Driscoll. Donald O’Dell was also a month-to-month tenant at the
motel, and he plowed the parking lot in exchange for a reduction in his monthly rent.
Defendant owns the motel where both men were staying, but had never met Plaintiff at
the time of the incident.
         Around two years prior to the incident, Defendant rented a room to O’Dell at the
suggestion of two motel tenants. At that time, Defendant was aware that O’Dell was on
probation and that he had been convicted of driving while under the influence (DWI).
O’Dell’s criminal record includes the following convictions:
         2003- DWI, third offense
         2000- violation of probation
         1996- grand larceny
         1991- attempted burglary
         1991- burglary
         1990- possession of stolen property
         1988- escape
         1987- aggravated assault
         1987- false information to a police officer
         1981- criminal trespass
         1981- issuing bad check
         1981- petty larceny

After renting to O’Dell, Defendant learned that his brother was O’Dell’s probation
officer. Defendant never asked his brother about O’Dell’s criminal record, nor did he
perform a criminal background check. Defendant had checked with his brother about the
criminal history of other tenants before.
         On February 18, 2009, O’Dell was plowing the parking lot of the motel. Plaintiff
was concerned that snow would be plowed into the walkway and he approached O’Dell
while he was plowing. The two conversed and then O’Dell continued plowing and
Plaintiff went back inside. A short time later there was another confrontation between
Plaintiff and O’Dell outside. O’Dell got out of his truck and the two argued. When
Plaintiff began to walk away, O’Dell struck him on the back of the head with a crowbar.
As a result, Plaintiff suffered various injuries and O’Dell was convicted of aggravated
assault with a deadly weapon.1

1
 O’Dell’s conviction and sentence of 15 years to life as a habitual offender was upheld on appeal. State v.
O’Dell, No. 2010-172 (Vt. Apr. 4, 2011) (unpublished mem.), available at
http://www.vermontjudiciary.org/d-upeo/eo10-172.pdf.


                                                     2
                                         Discussion
       Plaintiff asserts liability on the part of Defendant under the following theories:
(1) vicarious liability; (2) negligent hiring; (3) negligent supervision; (4) negligent
renting; and (5) consumer fraud. The Court will discuss these claims in turn.
       Vicarious Liability
       Plaintiff first argues that O’Dell was acting as Defendant’s agent, servant and
employee at the time of assault and that Defendant is therefore vicariously liable for
O’Dell’s actions. Under the doctrine of respondeat superior “an employer or master is
held vicariously liable for the tortious acts of an employee or servant committed during,
or incidental to, the scope of employment.” Brueckner v. Norwich Univ., 169 Vt. 118,
122-23, (1999). Of particular import to this case is whether O’Dell’s conduct fell within
the scope of his employment.
       To establish that a servant's conduct falls within the scope of his or her
employment, a plaintiff must demonstrate that the conduct:
       (a) ... is of the kind the servant is employed to perform; (b) ... occurs
       substantially within the authorized time and space limits; (c) ... is actuated,
       at least in part, by a purpose to serve the master; and (d) in a case in which
       force is intentionally used by the servant against another ... is not
       unexpectable by the master.

Sweet v. Roy, 173 Vt. 418, 430-31 (2002)(citing Restatement (Second) of Agency §
229(1)(1958)). The conduct of an employee falls outside the scope of employment if it is
“different in kind from that authorized, far beyond the authorized time or space limits, or
too little actuated by a purpose to serve the master.” Restatement (Second) of Agency §
228(2); Sweet, 173 Vt. at 431. “[T]he inquiry turns not on whether the act done was
authorized or was in violation of the employer's policies, but rather whether the acts can
properly be seen as intending to advance the employer's interests.” Sweet, 173 Vt. at 431-
32 (2002)(citation omitted).
       In Sweet v. Roy, plaintiff brought suit against a trust which owned a mobile home
park and the park manager, among others. 173 Vt. 418. Plaintiff alleged that the park
manager broke her windows and cut her electric line in an effort to illegally evict her. Id.
at 425. At the close of evidence, the Superior Court found that the trust was vicariously
liable for the actions of the park manager as a matter of law. Id. at 426. The Supreme



                                              3
Court upheld this determination, noting that:
       In this case, the trust has consistently taken the position that plaintiff was a
       trespasser, and, therefore, it could use self-help means to evict her. There
       is no dispute that Leon Roy's responsibility as park manager included the
       removal of trespassers from the park. The trustees were on notice that
       Leon used surreptitious vandalism and utility disconnection as a means of
       self-help eviction. They were parties to the 1986 action in which the court
       found Leon used these methods to evict Mark Wright and awarded
       $10,234 in compensatory and punitive damages against them. Yet, they
       made no change in their methods of operation after that judgment. Finally,
       there is no evidence that Leon acted out of personal animus against
       plaintiff, rather than for the business interests of the park.”

Sweet, 172 Vt. at 432-33 (citations omitted).
       The facts of this case are in stark contrast to those in Sweet and the factors set
forth in the Restatement. First, O’Dell’s responsibilities were limited to plowing snow
and cannot reasonably be understood to include striking someone with a crowbar.
Second, there is no evidence here that Defendant authorized the assault, or that O’Dell
had previously assaulted others while engaged in his work duties and that Defendant
explicitly or tacitly approved of this conduct while continuing his employment. Third, it
is clear that O’Dell’s actions could not have furthered Defendant’s interest in having the
parking lot plowed, or in any other regard. Plaintiff was walking away at the time he was
struck by O’Dell, thus any interference with his plowing had ended. Indeed, Plaintiff’s
own filings suggest that the motivation for this crime was O’Dell’s personal animus
toward African-Americans, rather than to benefit Defendant. Fourth, O’Dell’s acts must
be seen as unexpectable by Defendant based on the nature of the employment, which did
not include the expectation of significant contact with the public, or the potential for
confrontation. Thus, O’Dell’s actions when hitting Plaintiff with a crowbar were not
within the scope of his employment and Defendant cannot be held vicariously liable for
O’Dell’s criminal acts. Brueckner, 169 Vt. at 122-23; See also Rubin v. Yellow Cab Co.,
507 N.E.2d. 114 (Ill.App.Ct. 1987) (cab driver acted outside of the scope of his
employment when he hit another driver with a pipe).
       Negligent Hiring, Negligent Supervision, and Negligent Renting
       Plaintiff next claims that Defendant can be found liable under several theories in
negligence. In order to establish a claim in negligence, “a plaintiff must demonstrate that



                                                4
the defendant owed a legal duty to the plaintiff, the duty was breached, the breach
constituted the proximate cause of plaintiff's harm, and plaintiff suffered actual loss or
damage as a result.” Rubin v. Town of Poultney, 168 Vt. 624, 625 (1998). Recovery
under any theory in negligence is foreclosed absent evidence establishing some duty that
Defendant owed Plaintiff, and also that Defendant’s acts or omissions proximately caused
Plaintiff’s injuries. Id.
         Duty
         The core issue on summary judgment in this case is whether Defendant owed a
duty to protect Plaintiff from the criminal assault by O’Dell. Absent a duty of care, an
action for negligence fails. Id. Whether a defendant owes a duty of care to the plaintiff is
a question of law for the court to decide. Edson v. Barre Supervisory Union No 61, 2007
VT 62, ¶9, 182 Vt. 157.
         There is generally no duty to protect someone from crimes committed by a third
party. Edson v. Barre Supervisory Union No. 61, 2007 VT 62, ¶13, 182 Vt. 157
(upholding summary judgment finding no duty on part of school personnel on claim of
negligent failure of supervision as to student who left school grounds with known non-
student, and was later murdered by an acquaintance of the non-student). Exceptions to
that general principle are found “only where the defendant had special knowledge or
notice upon which to impose a duty to anticipate the wrongful act.” Id. (citing (Sabia v.
State, 164 Vt. 293, 305-06 (1995))(SRS had a “special relationship” by virtue of its
statutory duty to protect abused children that required it in the circumstances to protect
against sexual abuse by a stepfather); but see Estate of Sumner v. Dept. of Social and
Rehabilitation Services, 162 Vt. 628, 629 (1994)(no duty by SRS to anticipate homicidal
act by a child in its custody).
         There are no Vermont decisions addressing whether the relationship between a
landlord and tenant can create a duty to protect against the criminal acts of third parties
on the premises.2 However, the Second Circuit stated that “[u]nder Vermont law, as in
most states, a landlord is not an insurer of the safety of a tenant; rather, the duty of a
landlord has been characterized as one of reasonable diligence and ordinary care to


2
 For the purposes of this discussion, the Court will assume that Plaintiff was Defendant’s tenant by virtue
of co-occupancy of the apartment he shared with his wife, although Defendant had never met him.


                                                     5
maintain, in a reasonably safe condition, areas of the premises over which he has
control.” Doyle v. Exxon Corp., 592 F.2d 44, 46 (2d Cir. 1979)(applying Vermont law
upholding jury verdict imposing partial liability on commercial landlord for injuries
sustained during robbery of premises, when better security measures had been promised).
The Court also noted the “trend in the law in other jurisdictions imposing liability upon a
lessor for the failure under special circumstances to provide reasonable security measures
to protect a lessee from the criminal activities of third persons.” Id,
        The question in this case is whether a landlord has a duty to protect tenants from
the intentional, criminal acts of a tenant-employee who is lawfully on the property, when
the only special circumstances are limited to the facts of the tenant’s criminal record.
The primary consideration when analyzing whether a duty exists is the foreseeability of
the risk. Lenoci v. Leonard, 2011 VT 47, ¶13 (citation omitted). The foreseeability of
harm arising from landlord-tenant relationships due to the criminal acts of third persons
has been addressed in other jurisdictions, providing guidance for this Court’s
determination.
        In Giggers v. Memphis Housing Authority, 277 S.W.3d 359 (Tenn. 2009), a tenant
in a housing project got into an argument with the housing project's security guard. He
fired shots in the direction of the guard’s office, killing another tenant who happened to
be near the office at the time. Id. The decedent’s family brought suit against the
Memphis Housing Authority (MHA) alleging that it was negligent for failing to
investigate the shooter’s background and failing to evict him four years earlier in
accordance with MHA policy after he stabbed another tenant with a pen knife. Id. at 361.
The shooter’s criminal record included two aggravated assaults which were more than
twenty years old and he had pled guilty to firing a weapon within the city limits. Id. at
362. The Court of Appeals granted the MHA’s motion for summary judgment based on
absence of duty. On appeal, the Tennessee Supreme Court reversed, holding that MHA’s
general knowledge of criminal activity within its housing complexes, together with its
particular knowledge that the shooter had stabbed another tenant on the premises four
years earlier, made the foreseeability of his subsequent violent act a proper question for a
jury. Id. at 367.




                                               6
       In Estate of Hough v. Estate of Hough, 205 W.Va. 537 (W.Va. 1999), a
decedent’s estate brought a wrongful death action against her landlord, alleging that he
subjected her to a high risk of harm when he rented the mobile home directly across from
hers to her husband, knowing that she had obtained a protective order against him. The
suit further alleged that landlord directly exposed decedent to danger by instructing her to
either mow the lawn in front of her trailer or else move, after which her husband shot and
killed her while she mowed. Id. The lower court dismissed the complaint for failure to
state claim upon which relief can be granted and the estate appealed. Id. at 541. The
West Virginia Supreme Court of Appeals reversed holding that the factual allegations
viewed in a light most favorable to the estate could support the conclusion that the
landlord had unreasonably created or increased the risk of injury to the decedent from the
criminal activity of her husband. Id. at 545.
       Other decisions find no duty where the evidence to support foreseeability is more
tenuous. In Molosz v. Hohertz, 957 P.2d 1049 (Colo.App. 1998), neighbors living
proximate to rented premises sued the owners for the negligent retention of a violent
tenant, who was also the landlords’ son, after the tenant fired several shots through their
windows. “[P]laintiffs alleged that, by allowing their son to rent the property with
knowledge of his mental instability and prior violent behavior, defendants breached a
duty to protect third parties from their tenant's criminal conduct.” Id. at 1050. The trial
court assumed that the landlords were aware of their son’s criminal record and two prior
acts of violence, but held that they did not owe a duty to the Plaintiffs. Id. at 1051. The
Appeals Court affirmed stating that “even with plaintiffs having demonstrated
defendants' awareness of the shooter's criminal record, such evidence was insufficient to
establish that a duty should have been imposed upon the landlords to protect third parties
from the harm that occurred.” Id.
       In Anderson v. Green Street LLC, 2011 WL 341709 (Mass.Super. Jan. 18, 2011),
involving facts closely aligned to those here, a tenant’s estate filed suit against the
landlord of an apartment building, asserting that another tenant’s lengthy criminal past
and heroin addiction imposed a duty on the landlord not to rent to him. The landlord
moved for summary judgment. The court found that it was not reasonably foreseeable
that the tenant would beat a cotenant during a fight over a personal matter. Id. at *1. The



                                                7
perpetrator of the assault was both a tenant of the building and worked shoveling snow
and moving furniture for the landlord. Id. The landlord never performed a background
check on him because he thought it was too expensive. Id. The landlord was aware that
the perpetrator “had a juvenile criminal background and that he had some issued with the
law.” Id. at *2. He also knew that he had a heroin addiction. Id. The Court found that the
landlord did not owe the tenant a duty stating that: “A landlord cannot reasonably be
expected to control the interpersonal relationships of tenants or to predict from a criminal
record whether one friend poses a threat to another friend, both of whom live in the same
apartment building. To impose liability here would induce landlords to decline housing to
those with a criminal record in the absence of evidence of an actual threat to cotenants or
individual tenants.” Id. at *5.
        Consistent with the analysis required by Lenoci, 2011 VT 47, ¶13, the prevailing
theme in the cases above is whether it would be reasonably foreseeable that one tenant
would commit a crime against another tenant or neighbor. The cases demonstrate how
particular circumstances affect whether a crime against a tenant is foreseeable. The more
specific a threat, or the closer the relation of prior crimes to the premises, or the greater
the accumulation of indicia of violence, the more likely it becomes that a crime by that
tenant is reasonably foreseeable, and that a corresponding duty will be imposed on the
landlord to protect against a predictable harm. Thus when the Memphis Housing
Authority was aware that a tenant had previously stabbed someone on the premises, it
was foreseeable that he would severely injure someone else on the premises. Giggers,
277 S.W.3d 359. Similarly, where a landlord knowingly rented a trailer to a man across
from a woman who had just obtained a protective order against him, the landlord had a
duty to protect the tenant. Estate of Hough, 205 W.Va. 537.
        Conversely, where a tenant’s criminal history does not have a direct connection
with the property, and where there is no evidence of specific threats against residents,
crimes committed by a tenant are not foreseeable. Thus, where a landlord knew of
general mental instability and prior violent behavior of a tenant—not related to the
apartment building or aimed at other tenants—that tenant’s criminal behavior was not
foreseeable and the landlord did not owe a duty to protect others residing nearby. Molosz,
957 P.2d 1049. Similarly, where the only evidence of a threat was a prior criminal



                                               8
history and drug addiction, crimes by the tenant were not foreseeable, and the landlord
did not owe other tenants a duty to protect them. Anderson, 2011 WL 341709.
         In this case, Plaintiff asserts that O’Dell’s criminal history, including a decades
old aggravated assault conviction, made the subsequent crime against him foreseeable.
However, even assuming that Defendant could have become knowledgeable of O’Dell’s
criminal record, this would not have made the criminal assault against Plaintiff
foreseeable. There was no indication that O’Dell had ever harmed someone at the motel
before, or that there was a particularized risk to another tenant or class of tenants at the
motel. Reasonable societal expectations entitle landlords and employers to rely upon the
criminal justice system’s determination that a convict is ready to rejoin the community at
large. If reliance on such a determination, without more, becomes a cognizable basis for
imposing liability in tort, significant adverse collateral consequences are sure to follow.
See Anderson, 2011 WL 341709 at *5 (imposing duty on landlords would create
disincentives likely to affect the ability to find housing for anyone with criminal record);
Edson v. Barre Supervisory Union No. 61, 2007 VT 62, ¶ 16 (“[e]levating the duty of
care to ensure that students with known truancy, drug abuse, or other behavioral
problems remain on campus would not only be financially and logistically burdensome,
but would likely detract from schools' primary purpose by diverting significant resources
from education to security”).
         In sum, while special aspects of a landlord-tenant relationship might conceivably
place an obligation on a landlord to take reasonable measures to protect one tenant from
another, no such duty could arise from the circumstances here. Where the only indication
that a tenant poses a risk to other tenants is a criminal record with no specific ties to the
residence or a particular victim, future crimes by that tenant are not foreseeable. Even
more convincing in this case is the fact that O’Dell’s conviction for aggravated assault
was more than twenty years old.3 Thus, because no reasonable person could foresee that



3
  As a matter of evidence, the law takes care to discourage resort to the incendiary assumption that prior
bad acts are logically indicative of a future propensity toward assaultive or vicious behavior. V.R.E. 404(b).
The single crime of violence in the criminal history relied on by Plaintiff is more than twenty years old,
robbing it of any probative effect even in the limited circumstances when convictions might be deemed
admissible for impeachment. V.R.E. 609(b).



                                                      9
O’Dell would commit an assault solely because he had a criminal record, Defendant did
not owe Plaintiff a duty to protect him. Lenoci, 2011 VT 47, ¶13.
       Proximate Cause
       Even if the Court were to find that Defendant owed Plaintiff a duty and breached
that duty, recovery would still be denied because any action by the Defendant did not
proximately cause Plaintiff’s injuries. Proximate cause is the law's method of keeping
the scope of liability for a defendant's negligence from extending by ever-expanding
causal links. Roberts v. State, 147 Vt. 160, 163 (1986). Proximate cause requires “a
causal connection between the act for which the defendant is claimed to be responsible
and which is alleged to be negligent and the resulting flow of injurious consequences.”
Rivers v. State, 133 Vt. 11, 14 (1974). “But for” causation alone is not sufficient. Collins
v. Thomas, 2007 VT 92, ¶ 8, 182 Vt. 250. While “proximate cause ordinarily is
characterized as a jury issue, it may be decided as a matter of law where the proof is so
clear that reasonable minds cannot draw different conclusions or where all reasonable
minds would construe the facts and circumstances one way.” Id.
       Two recent cases illustrate these principles. In Collins v. Thomas, 2007 VT 92, a
young man died after he fell from the back of a moving pickup truck while he was
intoxicated. The decedent’s family sued the driver of the truck asserting that he was
negligent for driving a vehicle which was uninspected and in disrepair. Id. at ¶1. The
Vermont Supreme Court held that the accident could have occurred regardless of the
motor vehicle violations and that “the fall was not within the natural flow of ‘injurious
consequences’ of the truck’s defects.” Id. at ¶9. As such, Defendant's conduct was not
the proximate cause of plaintiff's injury. Id. at ¶10.
       In La Croix v. Mueller, No. 2010-235 (Vt. Oct. 21, 2010) (unpublished mem.),
available at http://www.vermontjudiciary.org/d-upeo/eo10-235.pdf, the defendant parked
in an alley adjacent to an auto parts store in an area marked “loading zone”. When
defendant returned to her vehicle, she discovered that the alley was blocked by one of the
store’s company trucks. Id. at 1. One of the store’s employees attempted to move the
truck so defendant could leave, and struck and injured the plaintiff. Id. Plaintiff sued the
defendant arguing that she contributed to his injury by parking in an unauthorized
manner, an act that played a substantial role in the events leading to the injury. Id. The



                                              10
Windham Superior Court (Wesley, J.) found that Plaintiff’s injuries were not the natural
and probable consequences of defendant’s acts of parking in a loading zone and that his
“but for” analysis was “far too attenuated to permit a reasonable jury to find proximate
cause.” Id. at 2. The Supreme Court affirmed, noting that “[t]he cause-in-fact of La
Croix’s injuries was Ethier’s act of backing up his truck, and defendant played no role in
this act whatsoever.” Id. at 3.
       As in La Croix, the cause-in-fact of Plaintiff’s injuries here was O’Dell’s criminal
assault upon him, an incident in which Defendant had no involvement. Similarly to
Collins, the criminal assault by O’Dell was not a natural or probable consequence of
Defendant’s actions. No reasonable jury could find that hiring or renting to someone
with a twenty year old assault conviction proximately caused injury attributable to the
hiree’s criminally assaultive behavior. The proximate cause of Plaintiff’s injuries was
O’Dell’s intentional, criminal acts, and Plaintiff’s effort through “but for” reasoning to
forge a causal nexus back to Defendant must fail as the product of a logical fallacy.
       The efforts in these cases to posit causal connections between some act of the
defendant and the ultimate harm strain the bounds of reason and logic upon which the
law insists in determining proximate cause. The Supreme Court’s reference in LaCroix to
a leading treatise applies equally here: “[i]n a philosophical sense, the consequences of an
act go forward to eternity, and the causes of an event go back to the discovery of America
and beyond. . . . But any attempt to impose responsibility upon such a basis would result
in infinite liability for all wrongful acts, and would set society on edge and fill the courts
with endless litigation… as a practical matter, then, legal responsibility must be limited to
those causes which are so closely connected with the result and of such significance that
the law is justified in imposing liability.” W. Prosser, Handbook of the Law of Torts, §
45, at 312 (1941) (quotation omitted). Therefore, the Court finds as a matter of law that
Defendant’s actions–almost two years prior to the assault–of renting to and hiring O’Dell
did not proximately cause Plaintiff’s injuries. Collins, 2007 VT 92, ¶ 8.
       Consumer Fraud
       Plaintiff contends that Defendant’s failure to investigate O’Dell’s criminal history
and then inform occupants of the motel before renting to them is deceptive or fraudulent
such that it is actionable under the Consumer Fraud Act (“CFA”). The CFA, 9 V.S.A.,



                                              11
chapter 63, is meant “to protect the public from unfair and deceptive business practices
and to encourage fair and honest competition.” Bisson v. Ward, 160 Vt. 343, 349 (1993).
This Act has been used in the landlord-tenant context when the rented premises were in
violation of health or safety codes, L'Esperance v. Benware, 2003 VT 43, 175 Vt. 292,
and for nondisclosure of known defects, Bisson, 160 Vt. 343, 351.
       Plaintiff offers no support for the proposition that the CFA requires the hospitality
industry to investigate the criminal history of prospective tenants, or to inform current
tenants of a guest’s negative criminal history. Neither Bisson nor L’Esperance stand for
that proposition. The Supreme Court concluded in Bisson that defendants had committed
a deceptive act in commerce because “[b]y renting the apartment, landlords impliedly
represented to tenant that the apartment was in compliance with the law,” yet they knew
“that the apartment was in violation of health and safety codes”. Bisson, 160 Vt. at 351.
L’Esperance similarly involves rental of a premises which was subject to known housing
code violations. Plaintiff can make no comparable claim of a per se deceptive act
inherent in Defendant’s alleged failure to investigate and disclose O’Dell’s criminal
history to other tenants. There is no case law extending the CFA to cover such
circumstances, and the Court concludes that judgment as a matter of law must be granted
based on Plaintiff’s failure to establish any deceptive or fraudulent act by Defendant upon
which to ground liability under the CFA.
                                        Conclusion
       Plaintiff’s arguments depend, in substantial measure, on the notion that O’Dell’s
criminal record made him dangerous or vicious and his presence on the premises made it
unreasonably dangerous. The slippery slope on which this argument perches is readily
apparent. Unbounded by statutory guidance, the Court cannot conclude that the common
law of negligence imposes a duty on landlords to investigate the criminal history of
prospective tenants or employees, disclose it to other tenants, or use it to deny occupancy
or employment as a means of maintaining the safety of leased premises. The policy
implications associated with imposing such a duty, and leaving its parameters to a jury
determination by a “reasonable person” standard, are vast and unrecognized by any
Vermont jurisprudence. However the argument is couched, be it in negligence, vicarious
liability, or consumer fraud, the only conclusion that can be drawn from these facts is that



                                             12
Donald O’Dell was the sole cause of Plaintiff’s injuries, and that Defendant owed no duty
to Plaintiff as regards to O’Dell’s employment or presence on the premises. To hold
otherwise would subject landlords and employers to expansive liability which could only
be avoided by refusing to hire or lease living space to ex-convicts, who would then be
rendered both unemployable and homeless.


       Based on the foregoing, it is hereby ORDERED:

       The Defendant’s motion for summary judgment is GRANTED.

       Plaintiff’s motion for partial summary judgment is DENIED.

       Defendant’s motion for discovery sanctions is dismissed as MOOT.

       DATED                         , at Bennington, Vermont,


                                     ______________________
                                     John P. Wesley
                                     Presiding Judge




                                           13
