Thursday, October 17, 2019

Divided Court on interlocutory appeal reverses denial of summary judgment and holds Recreational Use Statute immunized defendants from liability for drowning of child on defendants’ “open and undeveloped” land adjacent to a day care.)

Katerina Nolan, as Administrator of the Estate of Parker J. Berry v. Stephen J. Fishman and Susan B. Fishman, 2019 VT 63 [filed September 6, 2019]

SKOGLUND, J. The question presented is whether Vermont’s Recreational Use Statute, 12 V.S.A. §§ 5791-5795, which provides limitations on landowner liability, is applicable to the undisputed tragic facts of the case. We find that the Recreational Use Statute applies and that defendants’ motion for summary judgment should have been granted. Therefore, we reverse the holding of the trial court and remand.

Defendants sought and were granted an interlocutory appeal. They primarily argue that the trial court erred by holding that the Recreational Use Statute did not immunize defendants from liability

Under this law owners who make their land and water available to the public for no consideration for recreational uses by clearly establishing a rule that an owner shall have no greater duty of care to a person who, without consideration, enters or goes upon the owner’s land for a recreational use than the owner would have to a trespasser.

Most importantly for our analysis, the statute defines “land” as, among other things, “open and undeveloped land, including paths and trails.”. § 5792(2)(A)(i).

The trial court first court concluded that Parker died in the backyard of the daycare, in a portion of defendants’ property that was “seamlessly integrated” with the daycare’s property, and thus the relevant portion of defendants’ land “was not the ‘open and undeveloped land’ that the Legislature had in mind in encouraging landowners to make their land open to the public for general recreation.” As such, the court determined that defendants were not entitled to the protection of Vermont’s Recreational Use Statute and granted in part the estate’s motion for partial summary judgment and denied defendants’ motion for summary judgment

The trial court concluded that the land “was at least partially ‘developed’ for the Daycare Business” due to various “improvements” on the land—namely a sandbox, mowed pathways, and a brook bridge. 4 We disagree with this determination based on the plain language of Chapter 12. The Legislature took care to express that “land” may include paths, trails, water courses, bridges, and walkways. Id. § 5792(2)(A)(i)-(iv). Furthermore, the Legislature expressly stated that “the presence of one or more of the following on land does not by itself preclude the land from being ‘open and undeveloped’: posting of the land, fences, or agricultural or forestry-related structure.” Id. § 5794(c). As protective legislation goes, this is quite comprehensive. We cannot imagine that the Legislature meant to revoke protections from 4 The trial court noted, “[i]t is also conceivable that despite the improvements mentioned, the land involved here is more fairly characterized as ‘open and undeveloped.’ ” Although our conclusion is based on the plain language of the statute, our examination of the aerial photographs—on which the trial court relied so heavily—supports our determination that the land is “open and undeveloped.” 8 landowners where, as here, pathways, bridges, and perhaps even sandboxes are built on their otherwise “undeveloped” land.

Our examination of the aerial photographs—on which the trial court relied so heavily—supports our determination that the land is “open and undeveloped.”

REIBER, C.J, dissenting. I disagree with the majority in how it applies the law to the facts of this case. In my view, the facts compel us to conclude that defendants’ property was “developed for commercial recreational uses.” 12 V.S.A. § 5792(2)(B)(i). Therefore, the recreational-use statute does not protect defendants from liability, and the trial court’s decision was correct. Accordingly, I respectfully dissent.

In practice, defendants’ land was used for, and developed for, commercial recreational uses, and Parker Berry died while on that property for that commercial recreational use. Therefore, defendants’ land is excluded from protection pursuant to the recreational-use statute with regard to Parker’s death. The trial court did not err in so concluding, and I respectfully dissent. I am authorized to state that Justice Robinson joins this dissent

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