SCOVT affirms summary judgment dismissing premises liability claim brought on behalf of trespassing child, declining to adopt attractive nuisance doctrine recognized in the Restatement, holding protection of children was not “plain justification “ for overruling longstanding no-duty-to-trespasser precedent that has fostered certainty, stability, and predictability in Vermont’s landowner liability law.

   Premises Liability. Attractive Nuisance. Stare Decisis

Treadway v. Green Mountain Power Corporation, 2026 VT 20 [6/5/2026] 

EATON, J.   Plaintiff Ian Treadway appeals a civil division order granting summary judgment to defendant, Green Mountain Power (GMP).  Plaintiff’s suit stemmed from a severe injury incurred while trespassing at defendant’s electrical substation.  Consistent with Vermont’s common law, the civil division granted defendant’s motion for summary judgment concluding that defendant owed no duty to plaintiff, who was a trespasser.  On appeal, plaintiff does not contest that Vermont’s common law precludes recovery on his complaint.  However, plaintiff asks this Court to adopt the attractive-nuisance doctrine outlined in the Restatement (Second) of Torts § 339 (1965) and remand for a trial.  We decline to overrule our existing cases regarding the duty owed to trespassers and affirm. In Demag v. Better Power Equipment, Inc., we explained that when considering overruling precedent that has created “certainty, stability, and predictability” in our common law, this Court will only deviate from such precedent when “our community’s ever-evolving circumstances and experiences” create “plain justification” to do so.  2014 VT 78, ¶ 14. ¶ 14. For over 115 years, Vermont law has recognized that landowners, absent willful or wanton actions, are not liable to trespassers. We conclude that the common law on this issue has created certainty, stability, and predictability in the rule.   No “plain justification” exists to adopt the attractive-nuisance doctrine.  In Demag, we specified that the required “plain justification” must be derived from Vermont community standards and not those in existence in other states.  2014 VT 78, ¶ 14; see also Zeno-Ethridge v. Comcast Corp., 2024 VT 16, ¶¶ 9-15, 219 Vt. 121, 315 A.3d 978 (declining to modify Vermont’s common law for negligent-infliction-of-emotional-distress claims because Vermont’s community circumstances and experiences demonstrated policy reasons for common-law rule were still relevant in Vermont). We reject plaintiff’s argument that adoption of the attractive-nuisance doctrine in the majority of other states is “strong evidence that common standards have evolved” such that Vermont common law should also be modified. The current law—constitutional, legislative, and common law—surrounding public access to private land and correlated reductions in landowner liability demonstrates significant public-policy justification for maintaining the status quo.  Doing so provides predictability for landowners regarding liability to trespassers and also maintains the assumptions regarding owed duties that underpin the Legislature’s statutory scheme encouraging public access to private lands throughout the state.   This clear legislative and constitutional desire to support public access to private land in Vermont could not exist without protection against liability for land possessors who open their land to the public. Modification to our common-law rule regarding landowner liability to trespassers, children or otherwise, could have significant impact upon and drastically alter the deliberate balance established by the Legislature to support public access to private land developed in these statutes. Thus the protection for trespassing children too immature to appreciate and guard against dangerous does not rise to the level of “plain justification” required to overturn our longstanding precedent through judicial order. For over a century, our no-duty-to-trespassers law has harbored certainty, stability, and predictability within Vermont’s landowner liability law.  Given the doctrine’s integration into our Vermont community’s circumstances and experiences, and the complex and far-reaching policy considerations both supporting and opposing any change in Vermont, we decline to adopt the attractive-nuisance doctrine by judicial fiat. Accordingly, we reaffirm that under Vermont’s common law, absent willful or wanton conduct, “[o]ur rule is that the owner or occupant is under no obligation to [protect] a trespasser, whether adult or child,” from injury by reason of the claimed unsafe and dangerous condition of the premises.  Trudo, 116 Vt. at 223, 73 A.2d at 307.  Affirmed.

SCOVT affirms denial of post-conviction relief on the basis that plaintiff failed to prove ineffective assistance of counsel; trial court’s error in applying claim preclusion to bar claim was harmless

 Post-Conviction Relief. Ineffective Assistance of Counsel

In re Bruyette, 2026 VT 18 [5/22/2026]

WAPLES, J.   Petitioner Joseph Bruyette sought post-conviction relief (PCR) on the ground of ineffective assistance of sentencing counsel.  The civil division denied the PCR petition on the merits and, in the alternative, held that the petition was barred by the doctrine of claim preclusion.  Petitioner appealed, arguing the court erroneously denied his claim on the merits, excluded admissible evidence at the final hearing, and applied the doctrine of claim preclusion in the context of a PCR proceeding.  We conclude that the court improperly applied claim preclusion but that the error does not require reversal because petitioner failed to prove his claim of ineffective assistance of counsel.  We therefore affirm.  Petitioner failed to fulfill his heavy burden in overcoming the “strong presumption” that Attorney Kershaw’s conduct “fell within the wide range of reasonable professional assistance.”  In re Grega, 2003 VT 77, ¶ 7. ¶ 2 We further conclude petitioner failed to demonstrate a reasonable probability that, but for Attorney Kershaw’s alleged errors, the result of the proceeding would have been different.  Williams, 2014 VT 67, ¶ 29.  We agree with petitioner that the court erred in applying claim preclusion here.  As we have explained, the civil doctrine of claim preclusion does not apply to PCR cases.  In re Laws, 2007 VT 54, ¶ 14, 182 Vt. 66, 928 A.2d 1210 (explaining that while claim preclusion ordinarily precludes litigant “from raising a claim that was or could have been fully litigated in a prior judicial proceeding,” claim preclusion “has traditionally not been applied to habeas corpus relief”); see In re Chandler, 2013 VT 10, ¶ 16 n.4, 193 Vt. 246, 67 A.3d 261 However, he doctrine of successive petitions, like claim preclusion, “applies to ‘relitigation of claims actually raised and decided on the merits in an earlier PCR.’ ”    Vermont’s PCR statute, 13 V.S.A. § 7134, provides: “The court is not required to entertain a second or successive [PCR] for similar relief on behalf of the same prisoner.”  This suggests that the court has discretion in deciding whether to entertain a second or successive PCR.Because the State alleged that petitioner’s ineffective-assistance claim was litigated and decided in Bruyette 2019, the PCR court should have assessed the State’s motion under the doctrine of successive petitions rather than claim preclusion.  However, because we affirm the court’s decision that petitioner failed to demonstrate ineffective assistance of sentencing counsel, the error is not a basis for reversal.  Affirmed.

Divided Court upholds charter amendment allowing noncitizens to vote in the City of Burlington’s school board and school budget elections

 

Vermont Constitution. Noncitizen Voting 

Morin  v. City of Burlington , 2026 VT 17 [5/15/2026]

WAPLES, J.   In this appeal, we consider whether a Burlington charter amendment allowing noncitizens to vote in the City of Burlington’s school board and school budget elections violates the voter-eligibility requirements set forth in Chapter II, § 42 of the Vermont Constitution.  Plaintiffs sought declaratory and injunctive relief to this effect below and challenge the trial court’s dismissal of their complaint for failure to state a claim upon which relief can be granted.  We extend our discussion in Ferry v. City of Montpelier, 2023 VT 4, 217 Vt. 450, 296 A.3d 749, to clarify the distinction between local and statewide elections.  We conclude that plaintiffs’ complaint failed to demonstrate that school elections are statewide elections that implicate § 42.  See Ferry, 2023 VT 4, ¶ 1 (explaining § 42 “does not apply to local elections”).  We affirm the trial court’s dismissal.  

Chapter II, § 42 of the Vermont Constitution.  provides: Every person of the full age of eighteen years who is a citizen of the United States, having resided in this State for the period established by the General Assembly and who is of a quiet and peaceable behavior, and will take the following oath or affirmation, shall be entitled to all the privileges of a voter of this state.    In Ferry, we held that § 42 applies to statewide elections but does not apply to municipal elections.  2023 VT 4, ¶¶ 9, 36.

We distinguish local and statewide elections as follows: when the question voted on has been (1) delegated to the locality, and (2) such delegation is lawful, the election is properly a local election.  On the other hand, when the question either  (1) has not been delegated or (2) cannot lawfully be delegated to local governments, the election is properly a statewide election.   Plaintiffs argue that although Burlington’s school board and school budget elections may appear to be local elections, under Vermont’s current school-funding mechanisms, they are properly categorized as statewide elections subject to § 42

We reject plaintiffs’ arguments.  While we are “particularly wary of dismissing novel claims,” like the one before us, on a motion to dismiss for failure to state a claim because “[t]he legal theory of a case should be explored in the light of facts as developed by the evidence,” factual development of the complaint’s legal claims would not change our conclusion here.  Montague, 2019 VT 16, ¶ 11 (quotation omitted).  Given plaintiffs’ complaint did not present a sufficient basis to allow this Court to evaluate whether statewide school-funding mechanisms make the local-voting provisions of Title 16 an unconstitutional delegation of authority, it does not satisfy the rigorous standard necessary  for us to nullify an act of the Legislature.

ZONAY, Supr. J., Specially Assigned, concurring and dissenting.   The majority concludes that plaintiffs failed to demonstrate that school-board and school-budget 19 elections are statewide elections subject to the voter-eligibility requirements of Chapter II, § 42 of the Vermont Constitution.  I concur in part because I agree that a vote to elect members of the Burlington School District’s Board of School Commissioners is, as a matter of law, a local election.  Plaintiffs’ argument that the Burlington City Charter amendment violates § 42 as applied to votes to ratify the District’s education budget, however, demands an answer to the question left open in Ferry v. City of Montpelier—how do we distinguish between local and statewide issues where a vote is “municipal in name” but allegedly statewide in character?  2023 VT 4, ¶ 50, 217 Vt. 450, 296 A.3d 749.  In my view, the text of our state Constitution supplies a complete answer to that question: § 42 provides that its voter-qualification requirements apply to votes “touching any matter that concerns the State of Vermont.”  Vt. Const. ch. II, § 42.  It is undisputed that under Vermont’s current education-funding structure, a vote on the District’s annual education budget has statewide effects.  That being the case, I would reverse the trial court’s dismissal of plaintiffs’ claim that the Burlington City Charter amendment violates § 42 as applied to the District’s education-budget vote. 

SCOVT vacates default judgment for failure to appear at jury draw, holding at least 7 days’ written notice was required under V.R.C.P. 55(c)(4)

 

1  Default;  Rule 55(c)(6) 

    Westwardhos LLC v. Anatoly Glass LLC , 2026 VT 19 [5/29/2026]

COHEN, J. (Ret.), Specially Assigned.   Tenant Anatoly Kishinevski appeals pro se from the trial court’s order granting landlord Westwardhos LLC a default judgment under Vermont Rule of Civil Procedure 55(c)(6) following tenant’s failure to appear at jury draw. Tenant argues, among other things, that the trial court erred in entering default judgment without holding a hearing on seven-days’ notice as required under Rules 55(c)(6) and 55(c)(4).  We vacate and remand for the trial court to provide seven-days’ notice and a default judgment hearing pursuant to Rule 55(c)(4) and conduct further proceedings as necessary.  The rule’s plain language makes it clear that holding a hearing on the default judgment motion is mandatory.  The rule states that “[i]f the party against whom judgment by default is sought has appeared in the action judgment may be entered by the judge after hearing, upon at least 7 days’ written notice.”  V.R.C.P. 55(c)(4) (emphasis added). In this case, tenant did not appear for jury draw, but he had otherwise appeared in the matter, and landlord moved for a default judgment.  The trial court was therefore required to provide tenant with a hearing on seven days’ written notice under Rule 55(c)(4) before deciding the motion.  The court abused its discretion when it failed to do so, granting the motion for default judgment the same day.  When the trial court entered default judgment against tenant, it did not cite to Rule 55(c)(4), instead relying on Rule 55(c)(6).  Rule 55(c)(6) states: “In those cases in which a party has appeared in the action but has failed to appear at a duly noticed trial on the merits, any other party seeking affirmative relief may either waive trial and move for a default judgment or proceed to trial.”  The rule goes on to explain that “[i]f the party seeking affirmative relief chooses to file a motion for default judgment, a hearing shall be scheduled on the motion pursuant to” Rule 55(c)(4).  V.R.C.P. 55(c)(6).  If the jury draw is part of a duly noticed trial on the merits for the purposes of this rule, Rule 55(c)(6) requires a notice and hearing under Rule 55(c)(4) if the nondefaulting party moves for default judgment. Accordingly, we conclude that the trial court did not satisfy the hearing requirement of Rule 55(c)(4) when it held the hearing on landlord’s request for default judgment the same day and without notice to tenant. Finally, landlord argues that even if an additional default judgment hearing was required, the failure to hold such a hearing was harmless error because tenant did not demonstrate prejudice.  We conclude that tenant was not required to make such a showing under the circumstances here.  Entry of default judgment against a party who has appeared in a case without first providing notice and an opportunity to be heard implicates that party’s due-process rights.  See Reuther, 146 Vt. at 542, 507 A.2d at 973 (explaining that because defendant was not given notice before court entered default judgment, “ ‘[t]o get such a judgment without evidence and without notice is not in our opinion due process of law’ ” (quoting Bass, 172 F.2d at 210)); see also Dougherty, 147 Vt. at 366, 518 A.2d at 365 (“Due process favors the rights of the defendants to be heard in their own defense.  Denial of that right, and rejection of the remedies for default, 7 must have strong support.” (alteration and quotation omitted)).  Accordingly, “[a] failure to give the required notice generally is considered a serious procedural error that justifies the reversal or the setting aside of a default judgment.”6  10A M. Kane & A. Steinman, Federal Practice and Procedure § 2687 (4th ed. 2026); see, e.g., Bass, 172 F.2d at 210 (concluding that failure to provide notice under Federal Rule 55 to defaulting party was error and “[t]o get such a judgment without evidence and without notice is not in our opinion due process of law”); In re Roxford Foods, Inc., 12 F.3d 875, 881-82 (9th Cir. 1993) (holding that failure to provide notice of motion for entry of default judgment violated defaulting party’s due-process rights); Press v. Forest Lab’ys, Inc., 45 F.R.D. 354, 357 (S.D.N.Y. 1968) (“Where notice of a motion for a default judgment is required, but not given, such a judgment entered without notice must be vacated as a matter of law.”).  For this reason, we conclude that the judgment must be vacated and remanded for the trial court to provide tenant with the required notice and hearing.    Vacated and remanded for the trial court to provide seven-days’ notice and a default judgment hearing pursuant to Vermont Rule of Civil Procedure 55(c)(4) and conduct further proceedings as necessary.

SCOVT affirms dismissal for lack of subject matter jurisdiction of a superior court complaint challenging PUC denial of request to submit interrogatories to commissioners concerning their deliberations, holding 3 V.S.A. § 809b allows review when an agency compels discovery – not when the agency denies discovery.

 Administrative Appeals. Discovery. Jurisdiction

1.      Otter Creek Solar LLC v. Vermont Public Utility Commission, 2026 VT 15 [May 8, 2026]

SCOVT affirms summary judgment that Town has authority to maintain and repair public trails to ensure the public's access, holding this authority is implied from the definition of a trail as a public right-of-way.

 

1.    Public Trails.

       Echeverria v. Town of Tunbridge, 2026 VT 5 [2/20/2026]

SCOVT affirms ruling that town failed to prove “necessity” under the condemnation statute, holding that necessity is “a question of fact which is to be determined exclusively by the trial court,” and that the record supports the finding that the town did not meet its burden to prove necessity.

 

1.    Condemnation. Factual findings.

     Mongeon Bay Properties, LLC v. Town of Colchester, 2026 VT 1 [1/23/2026]