Keegan v. Lemieux Security Services, Inc.

Keegan v. Lemieux Security Services, Inc. (2003-341); 177 Vt. 575; 
861 A.2d 1135

2004 VT 97

[Filed 28-Sep-2004]

                                ENTRY ORDER

                                2004 VT 97

                     SUPREME COURT DOCKET NO. 2003-341

                             MARCH TERM, 2004

Karen Keegan                         }           APPEALED FROM:
                                     }
                                     }
     v.                              }           Chittenden Superior Court
                                     }  
Lemieux Security Services, Inc. and  }
Barr & Barr, Inc.                    }           DOCKET NO. 1465-01 CnC

                                                 Trial Judge: Matthew I. Katz

             In the above-entitled cause, the Clerk will enter:


       ¶  1.  Middlebury College Security Officer Karen Keegan was injured
  after entering a Barr & Barr, Inc. (Barr) construction site "to ensure the
  safety of" a trespasser.  In an attempt to grab the fleeing intruder, she
  slipped and fell, injuring her knee.  Alleging the accident resulted from
  Barr and Lemieux Security Services, Inc.'s (Lemieux) negligent failure to
  guard and maintain the security fence around the construction site, Keegan
  sued.  The Chittenden Superior Court granted summary judgment in favor of
  defendants, finding they owed no duty to Keegan.  We affirm. (FN1)

       ¶  2.  In the fall of 2000, Middlebury College contracted with Barr to
  serve as a general contractor on a dormitory construction project in the
  middle of the campus.  Barr, not the College's security personnel, was
  responsible for safety within the site.  The College was concerned with
  keeping students away from construction site hazards and, as a result, Barr
  had a continuous six-foot chain-link fence installed to secure the majority
  of the project.  An unrelated excavation and paving project made it
  impossible to erect the security fence around a portion of the site, so
  Barr employed free-standing chain-link panels, saw-horse barriers, and
  caution tape to prevent entry to that area.  In spite of these barriers,
  unauthorized people on occasion used the construction site as a short cut
  across campus.  In response, Barr hired Lemieux to patrol the site on
  weekend evenings in the hope of further discouraging trespassers.

       ¶  3.   On the night of November 19, 2000, Keegan was conducting a
  routine patrol of College buildings when she saw four men dismantling the
  construction site barriers.  When she called out to them, they fled and
  eventually entered the construction site at a different point by going over
  the chain-link fence.  Allegedly to secure the safety of the trespassers,
  she radioed her supervisor and followed the four intruders into the
  construction site.  Keegan testified at her deposition that she knew the
  construction site was dangerous, slippery, and littered with construction
  debris.
 
       ¶  4.  Shortly after entering the site, Keegan saw another officer
  approaching her, chasing a young man later identified as Nicholas Atwood. 
  Keegan reached out to grab Atwood, but she slipped on the "wet ground . . .
  [and] construction material," injuring her knee, arm, and back.  Atwood
  continued through the construction site and climbed over an intact portion
  of the six-foot chain-link fence.  Keegan's colleagues followed Atwood over
  the fence, caught him, and tackled him onto the ground.  The officers then
  took Atwood to the campus security office, identified him as a non-student,
  gave him a trespass notice, and advised him that he could not come back on
  campus.  Keegan's injury required lateral release surgery, which left her
  with a permanent impairment to her knee.

       ¶  5.  Keegan collected worker's compensation for her injury and later
  filed suit against Barr and Lemieux.  She claimed that, but for Barr's
  negligent failure to provide sufficient fencing around the site and
  Lemieux's negligent failure to adequately patrol the site, she would not
  have needed to enter the construction site to secure the safety of the
  trespassers and would not have been injured.  Defendants filed motions for
  summary judgment on three separate grounds.  First, they argued that they
  owed no duty to maintain better fencing or greater security to protect
  Keegan from an injury she obtained while attempting to rescue trespassers
  on the site.  Second, Barr and Lemieux insisted that Keegan's claim was
  barred by the firefighter's rule.  Finally, they argued that Keegan could
  not show that their conduct was the proximate cause of her injury.

       ¶  6.  The superior court granted Barr and Lemieux's summary judgment
  motions, reasoning that when Keegan entered the construction site to rescue
  a trespasser, Barr and Lemieux's duty to Keegan was no greater than the
  duty owed to the trespasser.  The court held that, since an owner or
  occupier of land must refrain only from subjecting a trespasser to willful
  and wanton misconduct, Keegan failed "as a matter of law to show . . .
  breach of a duty owed her."  Relying on Bonney v. Canadian Nat'l Ry. Co.,
  800 F.2d 274, 279 (1st Cir. 1986), the court rejected Keegan's argument
  that an owner or occupier of land owes a duty to a rescuer independent of
  its duty to the person being rescued.  On appeal, Keegan argues that the
  trial court misconstrued the law when it held that Barr and Lemieux did not
  owe her a duty of care independent from that owed to the trespasser she was
  allegedly rescuing.  As explained below, we agree with the trial court.

       ¶  7.  Taking Keegan's allegations as true, as we must, Zukatis v.
  Perry, 165 Vt. 298, 300, 682 A.2d 964, 965 (1996), it is evident that Barr
  and Lemieux are entitled to judgment as a matter of law.  To prove a
  negligence claim, Keegan must show that defendants owed her a duty, that
  they breached the duty, that she suffered actual injury, and that
  defendants' breach proximately caused her injury.  Zukatis, 165 Vt. at 301,
  682 A.2d  at 966.  Thus, the "governing issue" here is "whether the law
  imposed upon [defendants] a duty of care" - a determination the trial court
  must make as a matter of law.  Springfield Hydroelec. Co. v. Copp, 172 Vt.
  311, 317 n.2, 779 A.2d 67, 72 n.2 (2001).  

       ¶  8.  State courts that have considered this issue have "rejected the
  concept of an independent duty to a rescuer without an underlying tortious
  act to the person actually placed in peril."  Bonney, 800 F.2d  at 279-80
  (collecting cases).  The duty owed to Keegan as a rescuer therefore derives
  from the underlying duty, if any, owed to the person she was allegedly
  rescuing when she was injured.  In Vermont, a landowner or occupier
  generally owes no duty of care to a trespasser, except to avoid willful or
  wanton misconduct.  Baisley v. Missisquoi Cemetery Ass'n, 167 Vt. 473,
  477-78, 708 A.2d 924, 926 (1998).  Therefore, if the rescuee is a
  trespasser, the landowner owes no duty to the rescuee or the rescuer, other
  than to avoid willful or wanton misconduct. 
 
       ¶  9.  Although she does not clearly articulate the elements of her
  negligence claim, Keegan's argument rests on the notion that Barr and
  Lemieux owed her a duty to maintain a sufficient fence and to adequately
  patrol the site to prevent intentional trespassing.  This novel theory of
  liability runs counter to the rule explained above that a landowner or
  occupier can be held liable for a rescuer's injury  only to the extent it
  owed, and breached a duty to, the rescuee.  Bonney, 800 F.2d  at 297. 
  Neither Barr nor Lemieux owed a duty to Atwood as a trespasser, beyond
  avoiding willful or wanton misconduct.  Thus, defendants owed no greater
  duty to Keegan as a rescuer. 

       ¶  10.  Keegan next relies on Cameron v. Abatiell, 127 Vt. 111, 241 A.2d 310 (1968), arguing that defendants owed her a direct duty as an
  invitee, not a vicarious duty transmitted through the trespasser.  She
  argues that this follows because she had to enter the site to pursue the
  trespassers as a result of defendants' negligence.  In Cameron, we held a
  landowner liable to a police officer who fell when a step on the
  landowner's stairway broke.  Id. at 117-18, 241 A.2d  at 314-15.  Because
  the landowner was aware that, as a routine part of his beat, the officer
  walked up the stairs to check the locks on the building, we held that the
  landowner had "a reasonable opportunity to make the premises safe or to
  warn plaintiff."  Id. at 117, 241 A.2d  at 314.  In so holding, we observed
  that the officer did not use the stairs "in an emergency in the discharge
  of his police duties" or "to make an arrest or chase a thief or burglar." 
  Id.  

       ¶  11.  By contrast, Keegan does not seek to hold defendants liable by
  claiming she sustained an injury due to a defect on the property that
  defendants should have fixed or warned her about.  Rather, she claims that
  defendants failed to prevent the intentional trespass that resulted in her
  presence at the construction site in the first place.  Thus, our holding in
  Cameron does not support Keegan's claim.  Therefore, because Keegan failed
  as a matter of law to show an essential element of her negligence claim -
  the breach of a duty owed to her - the trial court correctly rejected it. 

       ¶  12.  Finally, because we find no basis on which Keegan can recover
  on her negligence claim, we see no reason to explore the firefighter's rule
  advanced by Barr and Lemieux.

       Affirmed.



                                       BY THE COURT:



                                       _______________________________________
                                       Denise R. Johnson, Associate Justice


                                       _______________________________________
                                       Marilyn S. Skoglund, Associate Justice


                                       _______________________________________
                                       Paul L. Reiber, Associate Justice


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                                  Footnotes


FN1.  Chief Justice Amestoy and Associate Justice Dooley were present for
  oral argument but did not participate in the decision.