Dutil v. 1401 Marshfield

VERMONT SUPERIOR COURT CIVIL DIVISION
Washington Unit Case No. 24-CV-00602
65 State Street
Montpelier VT 05602
802-828-2091
www.vermontjudiciary.org

Robert Dutil v. 1401 Marshfield LLC

Opinion and Order on Mr. Dutil’s Motion for Reconsideration

Plaintiff Robert Dutil claims that while on commercial property owned by

Defendant 1401 Marshfield LLC (“Marshfield”), he slipped on ice in the parking lot,

causing injuries. He sued Marshfield only. In its recent summary judgment decision,

the Court explained that liability depends on who had control, not ownership, of the area

where the injury occurred, and that the burden of proving who had control is on Mr.

Dutil. The injury occurred in the parking area immediately in front of the tenant that

Mr. Dutil had been visiting. The only substantial evidence in the record was the lease

and excerpts of the deposition testimony of Marshfield’s principal, Mr. Lucky Boardman.

The Court analyzed the lease, which reserved the parking spaces in the disputed area for

the tenant’s exclusive use, and allocated responsibility for ice and snow removal in that

area to that tenant. The Court noted that if there were any ambiguity in the lease, it

was resolved by Mr. Boardman’s testimony. Mr. Dutil did not attempt to come forward

with any affidavits or other evidence disputing any allegedly undisputed facts or to

demonstrate, for instance, that despite the lease terms, Marshfield in fact exercised

control over the disputed parking area. To the extent that the latter issue was raised at

all, he simply cited Mr. Boardman’s own testimony, which the Court examined.

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Mr. Dutil seeks reconsideration. He argues that the lease unambiguously

designated the entire parking lot as a common area available to everyone. There are, in

his view, no reserved spots for the tenant at issue. And, he argues, Mr. Boardman’s

testimony makes clear that Marshfield took care of ice and snow removal in the entire

parking lot even if there were reserved spots for the tenant, or at least there is a dispute

of fact as to that issue.

I. Procedural Standard

“The standard for granting [a motion to reconsider] is strict, and reconsideration

will generally be denied unless the moving party can point to controlling decisions or

data that the court overlooked—matters, in other words, that might reasonably be

expected to alter the conclusion reached by the court.” Latouche v. North Country Union

High School Dist., 131 F. Supp. 2d 568, 569 (D. Vt. 2001) (quoting Shrader v. CSX

Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). “[A] motion to reconsider should not be

granted where the moving party seeks solely to relitigate an issue already decided.” Id.

II. Analysis

The Court declines to revisit in any detail Mr. Dutil’s argument that the lease

unambiguously designates the entire parking lot as a common area, and there are no

spots reserved for the tenant’s use. The lease at ¶ 1 expressly includes parking spots

reserved for the tenant’s use. To the extent that the location of those spots in a sketch

appended to the lease is unclear, Mr. Boardman’s uncontested testimony as to their

location is not. They were the parking spots immediately in front of the tenant’s leased

space. The Utilities and Services Rider is clear that responsibility for ice and snow

removal in that location is allocated to the tenant.

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The only question, then, is whether Marshfield exercised control in fact even

though the lease allocated responsibility to the tenant. Mr. Dutil has the burden on that

issue, and he came forward with no cogent evidence of it in opposition to summary

judgment. The evidence that he argues the Court “overlooked” consists of certain

testimony of Mr. Boardman. The Court recounts the relevant testimony at length:

Q. [I]s there anything in that lease with the post office that talks about
maintenance of common areas, parking lots, things of that nature?

A. Yes.

Q. Tell me about that.

A. Obviously I didn’t review it before today, but, to my knowledge,
they’re responsible for taking care of all their own parking maintenance and
the purchased area, or leased area that they have, so it states in there that
they’re responsible for their leased area for maintenance.

Q. . . . . Help me describe what their leased area is according to the
lease as you understand it.

A. It’s the storefront width of their area . . ., so that’s the area
that they typically maintain.

. . .

Q. All right. And your understanding is the post office as a tenant of
this property is responsible for maintenance, such as snow maintenance,—

A. Yes.

Q. —dirt, salting, things of that nature?

A. Yes.

Q. All right. Having owned the property now for a couple of years, what
is your understanding as to who actually does that work in their designated
area that you described?

A. I have never seen I honestly do not know. I have never seen a
subcontractor there.
. . .
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Q. . . . . Does Vermont Rental Solutions handle the maintenance of all of
your properties?

A. We handle the management.

Q. Okay. So you don’t know the name of the contractor or person or
entity that plows and sands and salts over the last two years at 1401, but
you can find that out?

A. Yes.

Q. And is it your understanding, having owned the property for two
years, that that person or entity doesn’t maintain the post office spaces?

A. It—I would—he does not, he does not maintain the post office, to my
knowledge, but because he maintains the whole lot, I’d imagine
he, you know, his maintenance encompasses some of that, so my—I guess
it’s hard to answer that question. He, to my knowledge, does not get paid to
maintain the post office spot, but because it’s a large parking lot, he
maintains it for us,
they might utilize his maintenance to do less of their own.

Q. Okay. I think—I appreciate the explanation. So let me just break it
down a
little bit. You say “he,” so you know this is a—are you saying that just
generally, or do you have someone in mind that you think does the work?

A. I’ve met him.

Q. Okay.

A. I’ve met him. I just can't recall his name I think it’s—

. . .

Q. So this individual, that you can’t think of the person’s name, your
understanding over the last two years that you’ve owned 1401 is that he
plows and maintains the area that both includes the common area at 1401
as well the designated area that the post office leases?

A. Well, I wouldn’t say he maintains theirs, because I don’t know how
that’s supposed to work for them, but in maintaining our property, he has to
pass through their designated area, so I would assume he would not lift his
plow, and I would assume he would not stop his sander, so I, you know, I

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would assume that he assists in their maintenance by just maintaining
ours.

Q. Okay.

A. But I wouldn’t say he maintains theirs.

Q. Who maintains theirs, the post office, to your knowledge?

A. I have no idea.

Q. You have no idea. All right. In the month or so of your transition
with the convenience store, you worked, you said you worked with a woman
by the name of Missy [previous owner]?

A. Yes.

Q. And during that period of time did you observe her or anyone else
maintaining the property? When I say “maintaining,” we’re here to talk
about parking lots and the like, so I’m not talking about plumbing upstairs
or—

A. Yeah.

Q. Anything that you can recall?

A. It’s the same gentleman that we hired. That’s why I don't really
remember his name.

Q. Okay.

A. We had just transitioned.

Q. Okay. And what generally did you observe this gentleman doing
when you were onsite during this transition phase?

A. I don’t know if I recall him maintaining it when I was there, usually
it’s early, but I could say when I arrived the parking lot was always clean
and sanded.

Q. Okay. And how many—so you observed what you perceived to be a
well maintained parking lot during your transition; you’re not sure when it
occurred, but that was certainly your impression?

A. Correct.

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Q. And that included both snow removal as well as salt or sand, as you
would have expected?

A. Correct.

Q. During this transition period did you have any conversations with
Missy [former owner] about the post office or the common law parking lot
and how things worked or needed to be done?

A. No. It was just a leased spot.

. . .

A. that was—when I asked them [former owners] if I’m sorry, they’ve
ever maintained that area or if the post office maintained it, the post office
is responsible for it, and I wanted to make sure that the border lines in the
lease are correct, and they said yes.

Q. Okay. So I understand who might be responsible, but, but did Missy
or Mr. Scribner [former owners] indicate to you that they had, in fact,
maintained that designated area over the years?

A. No.

Q. Did they say that they didn’t?

A. They said—I don’t know if they said they didn’t, but they said the
post office was responsible.

Q. Okay. And the post office’s responsibility includes the area that you
saw Mr. Dutil stand up quickly on the morning of the incident?

A. Yes.

Q. Which is part of the parking area, correct?

A. Correct.

Boardman Deposition at 12–13, 15–18, 43 (emphasis added). When directly asked who

actually clears snow and ice from the tenant’s parking spots, Mr. Boardman said, “I have

never seen I honestly do not know.” Despite some speculation or equivocation, the rest of

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his testimony does not fairly call that statement into question or otherwise indicate that

Marshfield in fact exercised control over the disputed parking area.

The Court considered Mr. Boardman’s testimony in its initial determination. The,

as now, Mr. Dutil has the burden of proving who actually maintained the tenant’s

parking spots. Mr. Boardman’s testimony could not reasonably support an affirmative

finding by the jury to the effect that Marshfield did such work. Otherwise, the record is

clear that the tenant had the responsibility to do so. Marshfield’s motion for summary

judgment required Mr. Dutil to come forward with that evidence, and he did not. See

Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994) (summary judgment will be granted if,

after adequate time for discovery, a party fails to make a showing sufficient to establish

an essential element of the case on which the party will bear the burden of proof at trial).

Conclusion

For the foregoing reasons, Mr. Dutil’s motion for reconsideration is denied.

Electronically signed on Monday, April 7, 2025, per V.R.E.F. 9(d).

_______________________
Timothy B. Tomasi
Superior Court Judge

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