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Sweet v. Roy4/26/2002
aintiff-customer in the course of a discussion over scraps of wood given to plaintiff by other customers, store could be held vicariously liable); Gonpere Corp. v. Rebull, 440 So. 2d 1307, 1308 (Fla. Dist. Ct. App. 1983) (jury could find apartment owner vicariously liable where apartment manager shot tenant during discussion of tenant's eviction notice); Hinson v. Morris, 298 S.W. 254, 256 (Mo. Ct. App. 1927) (apartment owner held vicariously liable where apartment manager assaulted plaintiff when he could not pay for damage to personal property in his apartment); De Wald v. Seidenburg, 79 N.E.2d 430, 432 (N.Y. 1948) (apartment building owner could be held liable where superintendent pushed tenant down a flight of stairs in argument over breach of building rules by tenant's maid).
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. See Ploof v. Putnam, 83 Vt. 252, 257, 75 A. 277, 278 (1910) (island caretaker who was responsible to keep trespassers off the island could use such force as is necessary to accomplish the purpose). 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. See id. (island owner is liable if caretaker would not allow boat to land in a storm as long as caretaker did not act for his own private purpose). It was undisputed that Leon Roy had never met, and had never communicated with, plaintiff until the trial of this case.
Where it is "clearly indicated" that the servant was acting within the scope of the employment, the court may hold the master vicariously responsible as a matter of law. Restatement (Second) of Agency at § 228 cmt. d; see also Ploof, 83 Vt. at 259, 75 A. at 279 (although scope of employment is normally a question of fact, it can be decided as a matter of law where "facts and inferences to be drawn therefrom are not in dispute"). It is hard to imagine a case where authorization is more clearly indicated. The superior court properly found as a matter of law that Leon's actions were taken to benefit the park and the trust, as its owner; the self-help methods Leon employed were of the kind he was employed to perform; and Leon's intentional force was "not unexpectable by the master." There is no error in holding the trust vicariously responsible for Leon's acts.
B.
Defendants' second ground for its motion for a new trial was the admission of the opinion and judgment in Wright v. Roy, the testimony of the circumstances of that case, and the testimony of other mobile home owners describing events involving their sale, purchase or occupancy. Defendants filed a motion in limine seeking to exclude this evidence on the ground that it was inadmissible under V.R.E. 403 and 404. Plaintiff argued in response that the evidence was not inadmissible under Rule 404, because it was not offered to prove defendants' character, but rather to show motive, plan and the identity of the person who vandalized her mobile home. She argued that the evidence was not inadmissible under Rule 403 because the probative value was high, and it outweighed any prejudice to defendants.
Th
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