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 

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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 
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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. 
3

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 
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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 
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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 nonstudent, 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. 
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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. 
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 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 
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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 
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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). 
10

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 
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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., 
12

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 
13

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