Okundaye v. Driscoll, No. 83-3-10 Bncv (Wesley, J., May 12, 2011)
[The text of this Vermont trial court opinion is un official. It has been reformatted from the origina l. The accuracy of the text and the accompanying data included in the Vermont trial cou rt 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 own er of the motel liable for the intentional, criminal acts of Donald O’Dell. To th is end, Plaintiff has asserted various
theories under which he believes the motel owner ca n 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 w ith 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 jud gment 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 oppos ing 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 supp ort 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-mont h tenant who worked for2

Defendant William Driscoll. Donald O’Dell was also a month-to-month tenant at the motel, and he plowed the parking lot in exchange fo r a reduction in his monthly rent. Defendant owns the motel where both men were stayin g, but had never met Plaintiff at
the time of the incident. Around two years prior to the incident, Defendant r ented a room to O’Dell at the suggestion of two motel tenants. At that time, Def endant 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 con victions: 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 parkin g lot of the motel. Plaintiff was concerned that snow would be plowed into the wa lkway 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 the re 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 an d O’Dell was convicted of aggravated assault with a deadly weapon. 1

1 O’Dell’s conviction and sentence of 15 years to li fe 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

.3 Discussion Plaintiff asserts liability on the part of Defendan t under the following theories: (1) vicarious liability; (2) negligent hiring; (3) negligent supervision; (4) negligent renting; and (5) consumer fraud. The Court will di scuss these claims in turn. Vicarious Liability Plaintiff first argues that O’Dell was acting as De fendant’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 c onduct: (a) ... is of the kind the servant is employed to p erform; (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 (Se cond) of Agency § 229(1)(1958)). The conduct of an employee falls out side 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 maste r.” Restatement (Second) of Agency § 228(2); Sweet , 173 Vt. at 431. “[T]he inquiry turns not on whet her the act done was authorized or was in violation of the employer's po licies, but rather whether the acts can properly be seen as intending to advance the employ er's interests.” Sweet , 173 Vt. at 431- 32 (2002)(citation omitted).
In Sweet v. Roy , plaintiff brought suit against a trust which owne d a mobile home park and the park manager, among others. 173 Vt. 41 8. 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 Cour t found that the trust was vicariously liable for the actions of the park manager as a mat ter of law. Id . at 426. The Supreme4

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 par k manager included the removal of trespassers from the park. The trustees were on notice that Leon used surreptitious vandalism and utility disco nnection as a means of self-help eviction. They were parties to the 1986 a ction in which the court found Leon used these methods to evict Mark Wright and awarded $10,234 in compensatory and punitive damages agains t them. Yet, they made no change in their methods of operation after that judgment. Finally, there is no evidence that Leon acted out of persona l animus against plaintiff, rather than for the business interests o f the park.”

Sweet , 172 Vt. at 432-33 (citations omitted).
The facts of this case are in stark contrast to tho se in Sweet and the factors set forth in the Restatement. First, O’Dell’s responsi bilities were limited to plowing snow and cannot reasonably be understood to include stri king someone with a crowbar. Second, there is no evidence here that Defendant au thorized the assault, or that O’Dell had previously assaulted others while engaged in hi s work duties and that Defendant explicitly or tacitly approved of this conduct whil e continuing his employment. Third, it
is clear that O’Dell’s actions could not have furth ered Defendant’s interest in having the parking lot plowed, or in any other regard. Plaint iff was walking away at the time he was struck by O’Dell, thus any interference with his pl owing had ended. Indeed, Plaintiff’s own filings suggest that the motivation for this cr ime was O’Dell’s personal animus toward African-Americans, rather than to benefit De fendant. Fourth, O’Dell’s acts must be seen as unexpectable by Defendant based on the n ature 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 ca nnot 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 acte d outside of the scope of his employment when he hit another driver with a pipe). Negligent Hiring, Negligent Supervision, and Neglig ent Renting
Plaintiff next claims that Defendant can be found l iable under several theories in negligence. In order to establish a claim in negli gence, “a plaintiff must demonstrate that5

the defendant owed a legal duty to the plaintiff, t he 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 p laintiff 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 nonstudent, and was later murdered by an acquaintance of the non-student). Exceptions to that general principle are found “only where the de fendant had special knowledge or notice upon which to impose a duty to anticipate th e wrongful act.” Id. (citing (Sabia v.
State , 164 Vt. 293, 305-06 (1995))(SRS had a “special re lationship” by virtue of its statutory duty to protect abused children that requ ired 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 anticip ate homicidal act by a child in its custody). There are no Vermont decisions addressing whether t he relationship between a landlord and tenant can create a duty to protect ag ainst 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 sa fety of a tenant; rather, the duty of a
landlord has been characterized as one of reasonabl e diligence and ordinary care to

2 For the purposes of this discussion, the Court wil l assume that Plaintiff was Defendant’s tenant by v irtue of co-occupancy of the apartment he shared with his wife, although Defendant had never met him.6

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 o n commercial landlord for injuries sustained during robbery of premises, when better s ecurity 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 f acts 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 foreseea bility of harm arising from landlord-tenant relationships due to the criminal acts of third persons has been addressed in other jurisdictions, providin g 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 wa s 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 aggravat ed 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 h ousing complexes, together with its particular knowledge that the shooter had stabbed a nother tenant on the premises four years earlier, made the foreseeability of his subse quent violent act a proper question for a jury. Id . at 367.7

In Estate of Hough v. Estate of Hough , 205 W.Va. 537 (W.Va. 1999), a decedent’s estate brought a wrongful death action a gainst 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 fail ure to state claim upon which relief can be granted and th e estate appealed. Id . at 541. The West Virginia Supreme Court of Appeals reversed hol ding that the factual allegations viewed in a light most favorable to the estate coul d 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 th e 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 t heir son to rent the property with knowledge of his mental instability and prior viole nt behavior, defendants breached a duty to protect third parties from their tenant's c riminal conduct.” Id . at 1050. The trial
court assumed that the landlords were aware of thei r 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 plai ntiffs having demonstrated
defendants' awareness of the shooter's criminal rec ord, 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 te nant’s estate filed suit against the landlord of an apartment building, asserting that a nother 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 i t was not reasonably foreseeable that the tenant would beat a cotenant during a figh t over a personal matter. Id . at *1. The8

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 expensiv e. 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 addicti on. 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 evid ence 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 rea sonably foreseeable that one tenant would commit a crime against another tenant or neig hbor. The cases demonstrate how particular circumstances affect whether a crime aga inst a tenant is foreseeable. The more specific a threat, or the closer the relation of pr ior crimes to the premises, or the greater the accumulation of indicia of violence, the more l ikely it becomes that a crime by that tenant is reasonably foreseeable, and that a corres ponding duty will be imposed on the landlord to protect against a predictable harm. Th us when the Memphis Housing Authority was aware that a tenant had previously st abbed someone on the premises, it was foreseeable that he would severely injure someo ne else on the premises. Giggers , 277 S.W.3d 359. Similarly, where a landlord knowin gly rented a trailer to a man across from a woman who had just obtained a protective ord er 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 o f specific threats against residents, crimes committed by a tenant are not foreseeable. Thus, where a landlord knew of general mental instability and prior violent behavi or of a tenant—not related to the apartment building or aimed at other tenants—that t enant’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 criminal9

history and drug addiction, crimes by the tenant we re 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 crimi nal history, including a decades old aggravated assault conviction, made the subsequ ent crime against him foreseeable. However, even assuming that Defendant could have be come knowledgeable of O’Dell’s criminal record, this would not have made the crimi nal assault against Plaintiff
foreseeable. There was no indication that O’Dell h ad 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 la ndlords and employers to rely upon the criminal justice system’s determination that a conv ict is ready to rejoin the community at large. If reliance on such a determination, withou t more, becomes a cognizable basis for imposing liability in tort, significant adverse col lateral 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, dr ug abuse, or other behavioral problems remain on campus would not only be financi ally and logistically burdensome, but would likely detract from schools' primary purp ose 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 reasonabl e measures to protect one tenant from another, no such duty could arise from the circumst ances here. Where the only indication that a tenant poses a risk to other tenants is a cr iminal 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’Del l’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 disc ourage resort to the incendiary assumption that pri or bad acts are logically indicative of a future prope nsity toward assaultive or vicious behavior. V.R.E. 404(b). The single crime of violence in the criminal histor y relied on by Plaintiff is more than twenty years old, robbing it of any probative effect even in the limi ted circumstances when convictions might be deemed admissible for impeachment. V.R.E. 609(b).10

O’Dell would commit an assault solely because he ha d 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 a ny 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 require s “a
causal connection between the act for which the def endant is claimed to be responsible and which is alleged to be negligent and the result ing 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 c ause 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 c onclusions or where all reasonable
minds would construe the facts and circumstances on e 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 mov ing 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 uninspect ed 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 a rea marked “loading zone”. When defendant returned to her vehicle, she discovered t hat 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 inju red the plaintiff. Id . Plaintiff sued the defendant arguing that she contributed to his injur y by parking in an unauthorized manner, an act that played a substantial role in th e events leading to the injury. Id . The11

Windham Superior Court (Wesley, J.) found that Plai ntiff’s injuries were not the natural and probable consequences of defendant’s acts of pa rking in a loading zone and that his “but for” analysis was “far too attenuated to permi t 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 wa s O’Dell’s criminal assault upon him, an incident in which Defendant ha d 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 proximate ly caused injury attributable to the hiree’s criminally assaultive behavior. The proxim ate 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 connecti ons between some act of the
defendant and the ultimate harm strain the bounds o f reason and logic upon which the law insists in determining proximate cause. The Sup reme Court’s reference in LaCroix to a leading treatise applies equally here: “[i]n a ph ilosophical sense, the consequences of an act go forward to eternity, and the causes of an ev ent go back to the discovery of America and beyond. . . . But any attempt to impose respons ibility upon such a basis would result in infinite liability for all wrongful acts, and wo uld 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 th e result and of such significance that the law is justified in imposing liability.” W. Pro sser, 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 a ssault–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 inve stigate O’Dell’s criminal history and then inform occupants of the motel before renti ng to them is deceptive or fraudulent
such that it is actionable under the Consumer Fraud Act (“CFA”). The CFA, 9 V.S.A.,12

chapter 63, is meant “to protect the public from un fair 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 conte xt 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 tha t the CFA requires the hospitality industry to investigate the criminal history of pro spective tenants, or to inform current tenants of a guest’s negative criminal history. Nei ther 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 t he apartment, landlords impliedly represented to tenant that the apartment was in com pliance 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 s ubject to known housing code violations. Plaintiff can make no comparable claim of a per se deceptive act inherent in Defendant’s alleged failure to investig ate and disclose O’Dell’s criminal history to other tenants. There is no case law ext ending the CFA to cover such circumstances, and the Court concludes that judgmen t as a matter of law must be granted based on Plaintiff’s failure to establish any decep tive or fraudulent act by Defendant upon which to ground liability under the CFA.
Conclusion Plaintiff’s arguments depend, in substantial measur e, on the notion that O’Dell’s criminal record made him dangerous or vicious and h is presence on the premises made it unreasonably dangerous. The slippery slope on whic h this argument perches is readily apparent. Unbounded by statutory guidance, the Cou rt cannot conclude that the common law of negligence imposes a duty on landlords to in vestigate the criminal history of prospective tenants or employees, disclose it to ot her 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, ar e vast and unrecognized by any Vermont jurisprudence. However the argument is cou ched, be it in negligence, vicarious liability, or consumer fraud, the only conclusion t hat can be drawn from these facts is that13

Donald O’Dell was the sole cause of Plaintiff’s inj uries, and that Defendant owed no duty to Plaintiff as regards to O’Dell’s employment or p resence 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 spac e 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 dism issed as MOOT

. DATED , at Bennington, Vermont,

______________________ John P. Wesley Presiding Judge