Torts. Duty. Premises liability. Horses. Landowner had no duty to passing motorist to prevent escape of horse not in his control.

DEVENEAU v. WIELT, 2016 VT 21 (filed March 4, 2016).

SKOGLUND, J. Plaintiff was injured while diving in a public highway when he struck a horse owned by Susan Wielt, who leased a house and land from Brian Toomey. Toomey moved for summary judgment, arguing he had no duty to keep the horse enclosed or to prevent its escape. The trial court granted summary judgment, and plaintiff appeals. We hold that Toomey owed no duty to plaintiff and affirm.

Toomey gave Wielt permission to keep two horses, an Arabian mare and a thoroughbred on his property and to pasture them there on the condition that Wielt take responsibility for all care of the horses and maintain a fence to keep them enclosed.

Our question on appeal is: What duty, if any, runs from Toomey, as noncustodial landowner, to plaintiff? Vermont common law imposes a general duty of ordinary care: to act as a reasonably prudent person would in similar circumstances. But whether there is a cognizable legal duty that supports a particular tort action depends on a variety of public policy considerations and relevant factors and is primarily a question of law.

Our decision in Wright v. Shedd . 122 Vt. 475, 177 A.2d 240 (1962). did not go so far as to absolve all landowners of the duty to prevent harm from horses that escape from their property, but it implied that such a duty will not attach absent some involvement in the ownership, management, or control of the horse. Ownership of the land was not enough 20 V.S.A. § 3349(a) and other provisions demonstrate the Legislature's intent that only the horse's "owner or keeper" is liable in a civil action for damages suffered as a result of a horse's escape.

We reject plaintiff’s argument that landowner owes a duty pursuant to Restatement (Second) of Torts § 379A (1965). Under that provision, a landowner may be liable to persons outside of the land caused by activities of the tenant "if, but only if," the landowner "knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken." We cannot say there is an unreasonable risk in the ordinary course of pasturing that horses contained by a fence will escape and pose a danger to passing motorists.

Because landowner had no connection to the ownership, management, or control of the injurious horse or of the fence containing it, we cannot impose a duty on him to prevent that horse from escaping and harming passing motorists. We therefore affirm the trial court's grant of summary judgment to Toomey.

ROBINSON, J., dissents because of the “troubling implications of the majority's suggestion that only the owner of a farm animal can be liable in tort to a driver injured on a public highway when the animal escapes.” She would hold the existence of a duty on the part of a landowner to exercise reasonable care to avoid harm to third parties outside the land resulting from activities conducted upon the land depends on the landowner's knowledge of the activities and ability to exercise control with respect to those activities, and that there was s more than sufficient evidence on the issues of knowledge and control to avoid summary judgment: (1) evidence that Toomey never transferred possession of the property that was inadequately fenced; and (2) evidence that, while retaining the ability to control activities on the property, Toomey was fully aware of the state of the fencing.