Harrington v. Rheaume, No. 729-10-09 Rdcv (Teachout, J., July 9, 2012)

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                                                STATE OF VERMONT

SUPERIOR COURT                                                                                   CIVIL DIVISION
Rutland Unit                                                                               Docket No. 729-10-09 Rdcv


JOSEPH HARRINGTON,
     Plaintiff

v.

CHARLES RHEAUME,
ERICOB VERMONT REALTY CORP., and
RICHARD EGIZI,
     Defendants


                                   DECISION
         Defendants’ ERICOB and Richard Egizi Motion for Summary Judgment

        The claim in this case is for personal injury arising out of an assault by Defendant
Charles Rheaume on Plaintiff Joseph Harrington that at the door or inside the door of Mr.
Rheaume’s apartment. Mr. Rheaume was a tenant in an apartment building owned by
ERICOB Vermont Reality Corporation (“ERICOB”) and managed by Richard Egizi.
Plaintiff brought suit against Mr. Rheaume, ERICOB, and Mr. Egizi.

      Defendants ERICOB and Richard Egizi move for summary judgment. Oral
argument was heard on March 27, 2012. Plaintiff was represented by James G. Levins,
Esq. Defendants ERICOB and Egizi were represented by Andrew C. Boxer, Esq.


                                                                Facts

       At the time of the assault, Plaintiff Joseph Harrington was staying with a friend in
Defendants’ apartment building in Rutland, Vermont. ERICOB owns the building, which
has four apartments, and Mr. Egizi was the building manager. Mr. Harrington had
Defendants’ permission to stay in the building.

        Mr. Rheaume was another tenant in the building. Defendant Egizi was not aware
and Defendant ERICOB may have been aware that, approximately five months before the
assault on Mr. Harrington, Mr. Rheaume had head-butted another tenant in the building.
The head-butting incident did not result in criminal charges. In the present incident, Mr.
Rheaume punched Mr. Harrington in the face. Mr. Rheaume’s motivations are unclear.
Mr. Rheaume pled guilty to a criminal charge of simple assault and paid a $200 fine.
                                         Analysis

        Plaintiff seeks damages from ERICOB and Mr. Egizi on the basis of negligence.
A claim of negligence requires Plaintiff to prove 1) that Defendants owed him a duty of
care, 2) that Defendants breached that duty, 3) that the breach proximately caused harm
to Plaintiff, and 4) that Plaintiff suffered actual damages as a result. Langle v. Kurkul,
146 Vt. 513, 517 (1986). The issues in this case relate to the duty and causation prongs
of the negligence standard. Defendants argue that they did not owe Plaintiff a duty to
protect him from Mr. Rheaume’s assault and that their actions or omissions did not
proximately cause Plaintiff’s injury.

Duty

        Plaintiff’s difficulty in establishing his claim is that there is generally no legal
duty to protect someone from intentional crimes committed by a third party. See Edson v.
Barre Supervisory Union No. 61, 2007 VT 62, ¶ 13, 182 Vt. 157. In order for Defendants
to be held liable for negligence based on crimes of a third party, Defendants must have
special knowledge or notice, allowing for the imposition of a duty. See id. This notice
must be such that would cause Defendants to anticipate harm to Plaintiff being caused by
the intentional acts of a third party. Compare Sabia v. State, 164 Vt. 293, 305-06 (1995)
(holding that Department of Social and Rehabilitation Services (SRS) had a duty to
prevent further child abuse when it was notified of ongoing abuse based on the special
relationship between the agency and a specifically identified abused child) with Estate of
Sumner v. Dept. of Social & Rehabilitation Servs, 162 Vt. 628, 629 (1994) (mem.)
(holding that SRS had no duty to prevent a murder by one of its charges when it had no
notice of facts upon which it should have foreseen a serious danger from the murderer).

        The Second Circuit, applying Vermont law in Doyle v. Exxon Corp., 592 F.2d 44
(2d Cir. 1979), stated, “Under 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 maintain, in a reasonably safe condition, areas
of the premises over which he has control.” Id. at 46. In order for a landlord to have a
duty to protect tenants from third party crimes, there must be “special circumstances”
outside the ordinary course of the landlord-tenant relationship. Id. Factors influencing
whether or not a duty exists include “the degree of control possessed by the landlord, the
foreseeability of the danger, the extent to which the landlord had undertaken specific
protective measures, and the adequacy of the evidence supporting the essential element of
proximate causation.” Id. at 46-47.

        Mr. Harrington was not a tenant of Defendants, but was temporarily staying with
one of Defendants’ tenants. Defendants argue that on these facts they owed Plaintiff no
duty at all because he was a mere “social guest” and not himself a tenant. Generally, a
landlord is only liable to social guests for injuries suffered as a result of the landlord’s
active of affirmative negligence. Menard v. Lavoie, 174 Vt. 479, 480 (2002), whereas a
landlord is required to exercise reasonable care toward business invitees, who are persons
who enter premises for purposes of business dealings with the owner. Id. Defendants



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were aware that Plaintiff was living in the building, and Defendant Egizi allowed Plaintiff
to repair a water-damaged ceiling in exchange for a rent credit. On these facts,
Defendants had business dealings with Plaintiff, and owed him a duty of reasonable care.
That does not resolve whether the reasonable care standard required Defendants to take
preventive measures to prevent Mr. Rheaume from assaulting tenants, including Mr.
Rheaume.

        Resolution of this issue turns on the foreseeability of harm to Plaintiff. If the harm
was not foreseeable, then Defendants did not owe Plaintiff a duty of care to prevent it.
See Edson v. Barre Supervisory Union No. 61, 2007 VT 62, ¶ 10. Plaintiff argues that the
previous incident, in which Mr. Rheaume head-butted another tenant, made Mr.
Rheaume’s present assault on Plaintiff foreseeable. Plaintiff does not allege that Mr.
Rheaume had a past criminal record known to Defendants and does not point to any other
incidents of violence other than the head-butting incident. There are no facts about the
relationship between Mr. Rheaume and the prior victim or the dynamics of their
relationship, or Mr. Rheaume’s conduct toward other tenants. The question on summary
judgment is whether there are sufficient facts from which a jury could find that an assault
by Mr. Rheaume was foreseeable such that Defendants had a duty to take preventive
measures.

        The court cannot conclude that this one prior incident of head-butting another
tenant, without more, even if Defendants knew of it, is sufficient for a jury to find that it
was foreseeable that Mr. Rheaume would criminally assault Plaintiff. The head-butt was
a single incident of a relatively minor level of violence, with nothing more to indicate the
likelihood of repetition or of an escalation in the level of violence, nor risk of violence to
others in the building.

        In other cases cited by Plaintiff in which a duty has been found in the landlord-
tenant setting, the landlord had a clear indication of the likelihood of criminal violence.
For instance in Reinert v. 291 Pleasant Avenue, L.L.C., 2011 WL 4084251 (N.Y. Supp.
App. Term Sept. 14, 2011) (per curiam), the landlord was repeatedly notified in writing
by plaintiff of the assaultive tenant’s insults, threats of harm and acts of vandalism
directed at the plaintiff, drug-related activity in common areas, and of a prior assault upon
the plaintiff. Id. Similarly, in Giggers v. Memphis Housing Authority, 277 S.W.3d 359
(Tenn. 2009), the landlord knew that the assaultive tenant had previously stabbed another
tenant on the premises and had continued to make verbal threats thereafter, and the
landlord had placed him on a probationary status. Id. at 361.

        In contrast, the single, relatively minor head-butting incident was not sufficient to
put Defendants on notice that Mr. Rheaume posed a threat to Plaintiff or others in the
apartment building. Therefore, no “special circumstances” were present, and, consistent
with general principles of tort law, Defendants’ duty of reasonable care did not include a
duty to take action to prevent the criminal actions of a third party.




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Proximate Cause

        Defendants also argue that Plaintiff cannot satisfy his burden with regards to the
proximate cause prong of the negligence standard. Proximate cause is designed to limit
Defendants’ liability to injuries that are sufficiently closely connected to the act of
negligence to constitute legal causation. See Collins v. Thomas, 2007 VT 92, ¶ 8, 182 Vt.
250. 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). Put
another way, while Defendants’ conduct may have been a “cause-in-fact” of Plaintiff’s
harm, id., “but for” causation alone is not sufficient. Collins, 2007 VT 92 at ¶ 8.
Although proximate cause is typically a jury issue, the court may decide the issue 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.” Estate of Sumner v. Dept. of Social & Rehabilitation Servs, 162 Vt. 628, 629
(1994) (mem.).

        Applying this standard, no reasonable jury could find that the conduct of ERICOB
and Mr. Egizi led to the assault in a natural and continuous sequence of events, or that it
was a substantial factor in bringing about the assault. This case illustrates the difference
between “but for” (factual) and proximate (legal) causation. Plaintiff can show “but for”
causation: “but for” the Defendants renting to Mr. Rheaume and maintaining him as a
tenant after the head-but with no special precautions, Mr. Rheaume would likely not have
been in a position to assault Mr. Harrington. “But for” causation is not, however,
sufficient. Defendants’ conduct also needs to be a proximate cause of the punch in the
fact that resulted in Plaintiff’s injuries. The facts are insufficient as a matter of law to
show proximate causation.

       Because Plaintiff cannot prove either a duty on the part of Defendants ERICOB
and Egizi to protect against criminal assault, nor proximate causation between their
conduct and Plaintiff’s harm, Defendants ERICOB and Egizi are entitled to summary
judgment.

                                           ORDER

       Defendants’ Motion for Summary Judgment is granted.

       Plaintiff has until August 1, 2012 to file a new motion for default against
Defendant Rheaume. The original motion was denied on November 2, 2010, with the
opportunity to renew. If nothing is filed by August 1, 2012, the case will be dismissed.

       Dated this 9th day of July, 2012.

                                                                _____________________________
                                                                Hon. Mary Miles Teachout
                                                                      Superior Court Judge



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