Vermont Civil Jury Instruction Committee

Plain English Jury Instructions

Section 5. Premises Liability

Table of Contents

5.0 Premises Liability—Definition of “business invitee,” “licensee,” and “trespasser.”

5.1 Duty of Care owed by Landowner to Trespasser

5.2 Duty of Care owed by Landowner to Licensee

5.3 Business Owner’s Duty to Public/Business Invitees

5.4 Business Owner’s Duty to Inspect for Dangerous Conditions

5.5 Business Invitee’s Duty to Observe Dangerous Activities and Conditions if they are Obvious

5.6 Business Owner’s Duty: Where Place of Injury Is in a Business Using Self-Service Marketing that Creates a Foreseeable Hazard as Customers Handle Merchandise

5.0 Premises Liability—Definition of “business invitee,” “licensee,” and “trespasser.”

This is a case of premises liability. From a legal point of view, it makes a difference whether [name of plaintiff] was a “business invitee,” a “licensee,” or a “trespasser.”

A “business invitee” is someone who entered or remained on a person’s property for a business purpose.

A “licensee” is someone who came onto or remained on someone’s property for his own reasons and for no benefit to the owner of the property.

A “trespasser” is someone who came onto or remained on someone’s property without permission from the owner or without a legal reason to be there.

Reporter’s Notes

The definition of “business invitee” comes from Ball v. Melsur Corporation, 161 Vt. 35 (1993). See also Menard v. Lavoie, 174 Vt 479 (2002).

The definition of “licensee” comes from Cameron v. Abaitell, 127 Vt. 111 (1968). In that opinion, Justice Keyser noted that the trend in case law was to broaden the class of invitees to include more that kind of person that had previously been thought of as licensees.

The definition of “trespasser” is from the Restatement (Second) of Torts § 329 (1965) and cited in Baisley v. Mississquoi Cemetery Association, 167 Vt. 473 (1998). Another version of the same definition is found in Farnham v. Inland Sea Resort Properties, Inc., 175 Vt 500 (2003).

There are few cases in which the issue of the Plaintiff’s status as a licensee, invitee or trespasser was submitted to the jury. This question is usually decided as a matter of law by the judge. The intent of this instruction is to provide suggested wording should an instruction be needed on the issue of a Plaintiff’s status on the property of another, not to suggest that it be given in every case.

5.1 Duty of Care owed by Landowner to Trespasser

If [name of plaintiff] was a trespasser, the owner’s only duty was avoid willful or wanton misconduct that might cause harm to [name of plaintiff]. “Willful and wanton conduct” refers to intentional conduct that the owner knows, or should have known, has a tendency to injure someone.

On the other hand, a trespasser is not an outlaw. The owner of property may become liable to a trespasser by an act done in his presence if it is clear that the owner should have foreseen danger to the trespasser. Also, if the trespasser’s presence was known or should reasonably have been anticipated, the landowner has a duty to act with reasonable care towards the trespasser.

Reporter’s Notes

See Keegan v. Lemieux Security Services, 177 Vt 575 (2004); Baisley v. Mississquoi Cemetery Association, 167 Vt. 473 (1998) and cases cited in that opinion. The terms “willful” and “wanton” are defined as intentional conduct, which is or ought to be known to have a tendency to injure. Behr v. Hook, 173 Vt. 122 (2001).

The second sentence comes from Lavallee v. Pratt, 122 Vt. 90 (1960).

Vermont has not adopted the doctrine of attractive nuisance, so the absence of duty applies to both adult and child trespassers. Baisley v. Mississquoi Cemetery Association, 167 Vt. 473, 477 (1998); Trudo v. Lazarus, 116 Vt. 221, 223 (1950).

The term “trespasser” is defined in the first premises liability instruction.

5.2 Duty of Care owed by Landowner to Licensee

If [name of plaintiff] was a licensee at the time [he/she] was injured, then the owner is liable if the plaintiff was injured because [of a hidden danger on the premises that the landowner did not remove, repair or warn the plaintiff about.] [Or, alternative wording if appropriate: the landowner affirmatively did something to cause harm to the plaintiff.]

Reporter’s Notes

For the source of this instruction, see Cameron v. Abaitell, 127 Vt. 111 (1968). See also Lomberg v. Renner, 121 Vt. 311 (1959) (guest can recover where his injury is the result of active and affirmative negligence of the host while the guest was known to be on the premises or if there is such a hidden defect on the property that it amounts to a trap or pitfall, and which the host has not removed, or warned the guest about).

The concept of “affirmative” or “active” negligence has been superseded in modern practice, except, perhaps in cases in which the Plaintiff seeks punitive damages.

The term “licensee” is defined in the first premises liability instruction.

5.3 Business Owner’s Duty to Public/Business Invitees

A business owner owes a duty to the public to see that the [describe the parts of the premises ordinarily used by invitees at issue in this case; for example, “the produce aisle of the grocery store” or “the entrance to the apartment.”] are kept in a reasonably safe condition. Therefore, the owner is responsible for injuries that are caused by conditions that the owner actually knew existed, unless the dangers were obvious. The owner is also responsible for injuries caused by a condition that existed long enough so that the owner should have known about it and should have known that it could be unreasonably dangerous.

Reporter’s Notes

See generally Forcier v. Grand Union, 390 Vt. 389 (1970) (citing Dooley v. Economy Stores, Inc., 109 Vt. 138 (1937)). Note that this formulation of the premises-owner’s liability differs somewhat from the Restatement (Second) of Torts § 343, which focuses on not only the dangerous condition, but also on the duty on the part of the invitee to discover the danger and protect himself or herself against it. That section states that the person in possession of land is liable for injuries caused by a condition on the premises “if, and only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.” The Plaintiff’s duty, as recognized in the Vermont cases, is addressed in a later instruction.

The first sentence of the instruction is supported in concept by a number of Vermont cases, beginning with Wool v. Larner, 112 Vt. 138 (1942) and Wakefield v. Levin, 118 Vt. 392 (1955). The duty of a storeowner is described as a duty to “use reasonable care to keep the premises in a safe and suitable condition so that (the Plaintiff) would not be unnecessarily or unreasonably exposed to danger.”

By this point in the case, presumably the Judge has decided as a matter of law that the Defendant is a person in possession of the premises, that the premises were open to the public and that the place on which the accident occurred was a part of the premises open to the public. If these are facts in dispute that will be submitted to the jury, then the jury should be instructed using a version of the first premises liability instruction about the need to determine the status of the plaintiff.

A Defendant might have reason to know that a condition poses an unreasonable risk of injury to a Plaintiff for a number of reasons, including the length of time the condition existed, other accidents caused by the same or similar conditions, the fact that the condition violates an applicable standard or code, or the likelihood of injury.

5.4 Business Owner’s Duty to Inspect for Dangerous Conditions

A business owner must take reasonable care to know the condition of the [describe the part of the premises where the accident occurred; for example, “the entrance to the building,” “the sidewalk in front of the store,” “the produce aisle in the grocery store,” etc.] Also, if the owner discovers a dangerous condition, the owner must either take reasonable steps to make it safe or must sufficiently warn about it for a reasonable length of time until it can be fixed.

Reporter’s Notes

Forcier v. Grand Union, 390 Vt. 389 (1970) (opening premises to public carries with it some measure of assurance of safety, which the owner make good, by active care, if necessary); see also Smith v. Monmaney & Spano, 127 Vt. 585 (1969) (duty extends to danger incident to accumulations of snow and ice).

By this point in the case, presumably the Judge has decided as a matter of law that the Defendant is a person in possession of the premises, that the premises were open to the public and that the place on which the accident occurred was a part of the premises open to the public. If these are facts in dispute that will be submitted to the jury, then the jury should be appropriately instructed on the law to be applied to such a dispute. These matters are not addressed in this instruction.

5.5 Business Invitee’s Duty to Observe Dangerous Activities and Conditions if they are Obvious

[Name of defendant] is not liable to [name of plaintiff] if [he/she] was injured by something dangerous on the premises that [he/she] knew about or that would have been obvious to a reasonable person in [his/her] situation.

Reporter’s Notes

See Wall v. A. N. Deringer, 119 Vt. 36 (1955) in which the Plaintiff fell at a change in floor elevation in Defendant’s place of business. The Plaintiff testified that she had noticed the change in elevation as she had walked across the change in elevation a few moments before the accident, but forgot about it when she walked back over the same area. The trial judge (Shangraw) set aside a Plaintiff’s verdict and the Supreme Court affirmed, stating “the owner of premises is not liable to one who goes thereon as an invitee for injuries resulting from a danger that was obvious to the latter or should have been observed in the exercise of ordinary care.” See also Morgan v. Renenhan-Akers Co., 126 Vt. 494 (1967)(hole in platform scale used for weighing trucks); Dooley v. Economy Stores, Inc., 109 Vt. 138 (1937)(lack of handrail for steps in store); The Restatement (Second) of Torts § 343A (1), “A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.”

One problem with finding support for this instruction in Vermont is that for much of the 20^th century, any negligence by a Plaintiff resulted in judgment for the Defendant. There were few opportunities for the Supreme Court to discuss a Plaintiff’s duty in a premises liability case.

By this point in the case, presumably the Judge has decided as a matter of law that the Defendant is a person in possession of the premises, that the premises were open to the public and that the place on which the accident occurred was a part of the premises open to the public. If these are facts in dispute that will be submitted to the jury, then the jury should be appropriately instructed on the law to be applied to such a dispute. These matters are not addressed in this instruction.

5.6 Business Owner’s Duty: Where Place of Injury Is in a Business Using Self-Service Marketing that Creates a Foreseeable Hazard as Customers Handle Merchandise

The place where [name of plaintiff] was injured in [name of defendant store] was a place that displayed [describe merchandise] for the customers to handle themselves and select what they wanted to buy. When a store owner uses this kind of self-service marketing, the store must take reasonable steps to protect the customers from danger that might be expected from this method of doing business.

If [name of plaintiff] persuades you that [he/she] was injured because of a danger created by the self-service marketing of [describe the goods], then the store is liable unless the store used reasonable measures to discover and remove from the floor debris that may have been knocked to the floor [or insert other description of the kind of care that the defendant might have adopted to protect customers from foreseeable dangers under the circumstances presented in the litigation].

Reporter’s Notes

This instruction should be given in those cases where the premises owner displays goods for sale in a self-service format—such as in the produce section of a supermarket.

The instruction modifies the instruction about the premises owner’s duty to inspect the premises and either to warn of dangers or take action to make the dangerous condition safe.

The instruction modifies the Plaintiff’s burden of proof in cases arising from hazards created by self-service marketing that creates a foreseeable risk of danger to customers.

The instruction comes from Maleney v. Hannaford Bros. Co., 2004 VT 76. The opinion affirms the principle that the Plaintiff has the burden of making out a prima facie case of negligence in a premises liability action arising from a danger created by the practice of displaying and selling goods through self-service operations that create a foreseeable risk of danger to customers from spilled merchandise, such as in the produce section of a supermarket.

In ordinary premises liability cases, the Plaintiff’s burden of proof includes the burden of coming forward with evidence from which the jury could find that the store employees either knew of the specific dangerous condition that caused the Plaintiff’s injury, or that the condition existed for such a period of time that the store employees should have known about it. In cases arising from dangerous conditions created by self-service marketing, however, the Plaintiff is relieved of this burden and, in fact, after the Plaintiff otherwise makes out a prima facie case, the burden shifts to the Defendant to prove that it took reasonable steps to prevent the foreseeable risk of harm posed by the self-service display.

The opinion reiterates that the Plaintiff always bears the ultimate burden of proof that the Defendant was negligent in failing to respond adequately to a foreseeable hazard. The opinion also cautions that it is for the trial court, in considering a Motion for Directed Verdict, to determine if the Defendant has met its burden of producing evidence, as opposed to its burden of proof, which remains a jury question. The jury is not to be instructed about a shifting burden of proof.