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White v. Quechee Lakes Landowners' Association9/24/1999
1968). This latter principle is set forth in Restatement of Restitution § 95 (1937), which provides:
Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other's duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.
Applying this and the other principles stated above, this Court has held that (1) an engineering company that contracted with the sellers of a home to design and build a septic system would have to indemnify the sellers should they be found liable to the buyers for a defective condition in the system, so long as the sellers did not acquiesce in that condition, see Peters, 159 Vt. at 429, 620 A.2d at 1272; (2) the manufacturer of a defective automobile part was required to indemnify the automobile manufacturer for injuries sustained as a result of the defect, see Morris, 142 Vt. at 577, 459 A.2d at 974; (3) an independent contractor was required to indemnify a hotel operator for injuries sustained when a patron was struck by an automatic door that the operator had hired the contractor to repair, see Bardwell, 135 Vt. at 574, 381 A.2d at 1063; and (4) a wholesaler whose employee had inserted a glass thermometer into a banana was required to indemnify the owners of a market after a customer was injured biting into the banana, see Digregorio v. Champlain Valley Fruit Co., 127 Vt. 562, 566, 255 A.2d 183, 186 (1969).
On the other hand, this Court has held that (1) the employer of an employee injured delivering a refrigerator to a private home was not required to indemnify the homeowners for the employee's injuries, which were allegedly caused by the defective condition of the homeowners' basement steps, see Hopper v. Kelz, 166 Vt. 616, 617, 694 A.2d 415, 416 (1997) (mem.); (2) the architect of an apartment complex containing a pond in which two children drowned was not required to indemnify the owner of the complex, who acquiesced in the obvious risk presented by the absence of a fence around the pond, Goulette v. Appleton, 153 Vt. 650, 651, 571 A.2d 74, 75 (1990) (mem.); and (3) the employer of an employee injured while operating a defective side-boom counterweight used on a tractor was not required to indemnify the manufacturer of the defective equipment, notwithstanding the manufacturer's claim that the employer was aware of the defect, see Hiltz v. John Deere Indus. Equip. Co., 146 Vt. 12, 15, 497 A.2d 748, 752 (1985).
In our most recent indemnity case, the owner of a building who had laid floor tiles in the entranceway of the building settled a slip-and-fall lawsuit and then sought indemnification from the tile distributor. We reversed the trial court's summary judgment ruling in favor of the distributor because there remained a material factual dispute over whether the owner had selected the floor tiles or rather merely stated his needs and then relied on the distributor's recommendation as to what type of tile was appropriate for the entranceway. See Chapman, 167 Vt. at 161, 702 A.2d at 135.
III. Quechee Lakes' Claims of Error
A. Procedural Issues
Before reviewing the merits of the trial court's decision, we address the issues Quechee Lakes raises concerning the scope of the superior court's ruling and of the record both in the trial court and here on appeal. Quechee Lakes first complains that because the superior court's summary judgment ruling re
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