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Corbin v. Buchanan10/28/1994
GIBSON, J. In a wrongful death action, defendant Town of Brattleboro appeals from a jury verdict in favor of decedent's estate for compensatory and punitive damages arising out of the Town's alleged failure to properly inspect premises where decedent was killed in a fire. Plaintiff cross-appeals on the issue of the allocation of damages. We reverse.
In 1986, a third-floor apartment in Brattleboro inhabited by a seven-year-old boy and his father was destroyed by a fire that was apparently by a cigarette dropped by the father's girlfriend. No smoke detectors had been installed in the apartment, either by the tenant or the landlord. The father escaped with injuries, but his son died from smoke inhalation.
In 1984, the Town adopted the BOCA Building and Fire Prevention Codes, which include provisions requiring the inspection of buildings and the enforcement of orders to correct dangerous conditions. The Town did not conduct regular inspections of existing buildings, but enforced the codes in response to complaints or as part of the process of granting new building permits. Shortly after the adoption of the BOCA codes, a Town employee inspected the first-floor apartment of the building in question for wiring, plumbing and sewer problems. He noticed that there was no smoke detector in the apartment, but limited his investigation to the scope of the specific complaints. According to the evidence, no complaints were received from other tenants, and no inspection of other apartments in the building was ever conducted.
Steven McGuire and the child's grandmother, Rita Corbin, on behalf of the estate of grandson, sued the landlord, the Town, and the Brattleboro Housing Authority, which subsidized the rents for the units. The landlord and the Housing Authority settled the case before trial. The Town moved for summary judgment, arguing that the Town's failure to enforce the BOCA codes created no private right of action on behalf of plaintiffs. The court denied the Town's motion for summary judgment, ruling that local ordinances created a duty to individual members of the public and that the violation of the local ordinance was a prima facie showing of negligence. The court also submitted the issue of punitive damages to the jury on grounds that a finding that the Town was grossly negligent would be sufficient for the award of such damages. The jury awarded compensatory and punitive damages, and the present appeal followed.
The central issue on appeal is whether an individual plaintiff may recover in tort against a municipality for its failure to enforce an ordinance whose purpose is protection of the public as a whole. We hold that no such action exists in Vermont under the applicable statute or common law.
First, we note the absence in Vermont of any general inference of a private action based on government regulations whose clear purpose is the general welfare. We reaffirmed this principle in Cronin v. State, 148 Vt. 252, 531 A.2d 929 (1987), overruled on other grounds by Libercent v. Aldrich, 149 Vt. 76, 539 A.2d 981 (1987), wherein a state employee sued the State and two of its employees for violation of a state personnel department regulation prohibiting disclosure of confidential information. We held:
Even if we assume, without deciding, that the defendants' conduct violated [the regulation], the violation of a statute or regulation does not in and of itself give rise to a private right of action for damages.. . . In this case, the scope of the regulation, combined with the existence of an administrative remedy for violation of the regulation, convinces us that no private right of action is created by the regulation.
On its face, [
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