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 Rule 12 (b)((6) dismissal of wrongful death action against landlord, holding a landlord not in possession of defective property and with no “legal relationship” to injured person invited by tenant, has no liability for injuries regardless of foreseeability of harm

Fleurrey v. Department of Aging and Independent Living, 2023 VT 11 (filed 2/24/2023)

EATON, J. Plaintiff appeals from the civil division’s dismissal of her negligence claim against defendant landlord which alleged that landlord was responsible for the drowning death of a fifty-four-year-old man with developmental disabilities on the property that landlord leased to decedent’s caretakers.  Count III of the complaint alleged that landlord failed to fence the pond, thereby negligently failing to keep the property free of unreasonably dangerous conditions which it knew to exist. Landlord filed a Rule 12(b)(6) motion to dismiss Count III, arguing that it owed decedent no duty to fence the pond at the  property. The question on appeal is whether the civil division properly dismissed plaintiff’s claim. We conclude that it did and therefore affirm.

The purpose of a dismissal motion is to test the law of the claim, not the facts which support it. “[W]hether there is a cognizable legal duty that supports a particular tort action depends on a variety of public policy considerations and relevant factors.” Deveneau v. Wielt, 2016 VT 21, ¶ 8. The court considers “the relationship of the parties, the nature of the risk, . . . the public interest at stake, and the foreseeability of the harm.” Id. The existence of a duty is” primarily a question of law” and “[a]bsent a duty of care, an action for negligence fails.” Id.

More than a century ago we held that a suit could not be sustained against a landlord by a tenant’s invitee, explaining that “[l]iability for an injury due to defective premises ordinarily depends upon power to prevent the injury by making repairs, and therefor rests primarily upon him who has control and possession of the premises.” Beaulac v. Robie, 92 Vt. 27, 32 108 A. 88, 90 (1917).   This decision applies to this case. Here, plaintiff must seek redress from those who invited decedent to the property because the property was in their possession and under their control. Vermont law has recognized this rule for more than a century, and we find no reason to disturb this longstanding precedent now.

Plaintiff argues on appeal landlord owed decedent a duty to protect, relying mainly on §§ 343 and 343A of the Restatement (Second) of Torts. Sections 343 and 343A of the Restatement (Second) of Torts, covering duties that land possessors owe to their invitees. do not apply here because plaintiff did not allege that landlord was the “possessor” of the Elmore Road property. “Possessor” is  defined in Restatement (Second) of Torts § 328E as, ordinarily, “a person who is in occupation of the land with intent to control it.”

We reject Plaintiff’s further argument that a duty arises from foreseeability of harm and that this is jury issue.  Alleging foreseeable harm cannot sustain a negligence action where no legal relationship is alleged to have existed between parties. While Vermont courts consider foreseeability in determining whether one party owed a duty to another party in a negligence suit,  “[f]oreseeability of injury, in and of itself, does not give rise to a duty.” ¶ 8,2016 VT 21,¶ 8, ¶ 18.   Instead, a legal relationship must be alleged between parties before a court may reach the question of duty, See Haupt v. Triggs, 2022 VT 61, ¶ 12, (holding that no indemnification duty can arise where no legal relationship is alleged to have existed between parties).  Courts reach the duty question, where they may properly consider foreseeability, only where a legal relationship linking one party to the other is alleged because legal duties are dependent upon and coextensive with legal relationships. Haupt, 2022 VT 61, ¶ 12; Deveneau, 2016 VT 21, ¶ 18

Lastly, plaintiff argues that the civil division erred in drawing three inferences favorable to landlord: “[f]irst, the court made an inference that the landlord would not have reason to expect that Scott Fleurrey would nevertheless suffer physical harm from the pond because he lived with a caretaker at the property”; second, the civil division inferred “that the care provider would have Scott Fleurrey under her immediate supervision at all times”; and third, the civil division inferred “that the pond is a ‘natural’ pond.”  This Court “review[s] the trial court’s disposition of a motion to dismiss de novo, and may affirm on any appropriate ground.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 959 A.2d 990 (mem.).The inferences were harmless because plaintiff’s claim would not survive a dismissal motion in their absence.

Plaintiff’s claims cannot survive a dismissal motion, because (1) our precedents require an invitee to seek redress for injuries sustained on negligently maintained property from the land possessor who invited them to the defective property, rather than from the absentee landlord; (2) §§ 343 and 343A are inapplicable because plaintiff did not allege that landlord was the possessor of the Elmore Road property; and (3) no duty can arise where, as here, no legal relationship is alleged to have linked the parties.

Affirmed.

How cited

SCOVT NOTE: The rule of Beaulac v. Robie is codified in the First and Second Restatements as §354. This section and its exceptions in §§ 355 to 362  have been replaced by the  Restatement (Third) of Torts: Phys. & Emot. Harm  §§ 7 & 53 (2012), the latter of which is  titled “Duty of Lessors.”

In the view of the Third Restatement, “foreseeability” is an element in the determination of negligence but not  the determination of duty. Restatement (Third) of Torts: Phys. & Emot. Harm §7, comment j (2010) See Kuligoski v. Rapoza, 2018 VT 14 (Reiber CJ, dissenting)

 

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

SCOVT affirms summary judgment for defendant in premises liability case for lack of evidence of notice of the hazard and, thus, of causation.

Jay Bernasconi v. City of Barre: Hope Cemetery, 2019 VT 6 [filed 1/25/2019]


ROBINSON, J. Plaintiff Jay Bernasconi appeals from the Superior Court’s grant of summary judgment to defendant City of Barre. Plaintiff fell into a hole and injured his knee while visiting family graves at Hope Cemetery, which the City owns. He contends that the City’s negligent maintenance of the Cemetery caused his injury. We conclude that even if the City was negligent in its inspection and maintenance practices, because plaintiff produced no evidence from which it is possible to determine how long the hole existed, he cannot show that the City would have found the hole if it followed different inspection and maintenance practices. Thus, he cannot establish that any breach of the City’s duty of care caused his injuries. We accordingly affirm

While causation is ordinarily a question for the jury, where a reasonable jury could not find that the defendant caused the plaintiff harm, a court must award judgment as a matter of law. See Collins v. Thomas, 2007 VT 92, ¶ 8 (“Although proximate cause ordinarily is characterized as a jury issue, it may be decided as a matter of law . . . where all reasonable minds would construe the facts and circumstances one way.” (quotations omitted)).

Even assuming that the City was not sufficiently diligent in inspecting for holes, without evidence as to how long the hole existed, plaintiff cannot prove that any lack of diligence by the City in failing to timely inspect for and repair holes caused his injury. In that respect, this case is analogous to Maciejko v. Lunenberg Fire District No. 2, 171 Vt. 542, 758 A.2d 811 (2000) (mem.) (without a finding as to how long an obstruction had been in a sewer main, the court erred in holding that the defendant’s lack of a maintenance plan or policy was the proximate cause of a backup.)

The facts that the workers did not always cover or report holes that they found, that City workers knew about the hole the day after plaintiff’s accident, and that one smiled and said “Call your lawyer” when plaintiff told them he had fallen in it the day before, are together not enough evidence for a reasonable jury to find that the City knew about the hole before the accident. That evidence supports only “conjecture, surmise or suspicion” that the City’s negligence caused plaintiff’s injury, and so is legally insufficient.

Because plaintiff has not offered sufficient evidence to establish causation, his claim for negligence fails.



SCOVT NOTE : As a general rule, "In order to impose liability for injury to an invitee by reason of the dangerous condition of the premises, the condition must have been known to the owner or have existed for such a time that it was his duty to know it." Forcier v. Grand Union Stores, Inc., 128 Vt. 389, 264 A.2d 796, 799 (1970), quoting Dooley v. Economy Store, Inc., 109 Vt. 138, 142, 194 A. 375, 377, and Wakefield v. Levin, 118 Vt. 392, 397, 110 A.2d 712.

Forcier, however, announced a "business practice" exception that relieves plaintiffs of having to prove that a retail business owner had notice of a foreseeably dangerous condition caused by self-service operations. See Randall v. K-Mart Corp., 150 F.3d 210, 213 (2d Cir.1998). Under Vermont law, the existence of a reasonably foreseeable dangerous condition created by self-service retail operations effectively notifies the store owner of the dangerous condition, making the critical issue whether the store owner responded reasonably to protect its customers from the danger. Malaney v. Hannaford Bros. Co. 2004 VT 76 ¶ 13, 861 A. 2d 1069. The modification of premises liability law in slip-and-fall cases involving self-service retail stores — as endorsed Forcier — was aimed at relieving plaintiffs of the nearly insurmountable burden of proving how long the dangerous condition had existed. Id. ¶ 18.


Query whether plaintiffs should be relieved of this impossible burden in situations other than the self-service operation?

SCOVT affirms summary judgment that neither landlord nor guest of tenant/dog-owner owed a duty to passerby injured when pit bull escaped because they had no "reason to know" that the dog in question posed an unreasonable risk

Eric Gross and Adrianne Gross v. Elizabeth Turner and Antonio Flores , 2018 VT 80 [filed 8/10/2018]

REIBER, C.J. In this negligence action, we consider whether a landlord and a social guest of a tenant may be held liable for injuries caused by the tenant’s pit bulls to a third person outside of the landlord’s property. We conclude that plaintiffs failed to establish that either defendant owed a duty of care to the injured plaintiff in this case, and therefore affirm.

A landlord owes a duty to take reasonable steps to protect persons outside the land from injuries caused by a tenant’s dog if the landlord knew or had reason to know at the time of entering the lease that the dog in question posed an unreasonable risk of harm to such persons. Restatement (Second) of Torts § 379A. To survive summary judgment on their negligence claim against landlord under the above rule, plaintiffs had to present admissible evidence from which a jury could conclude that at the time of entering the lease, landlord knew or had reason to know the tenants’ dogs posed an unreasonable risk to persons outside the land. Plaintiffs did not meet this burden.

Liability under § 379A turns on whether a landlord “knew or had reason to know” at the time of the lease that the particular animal in question is abnormally dangerous. the phrase “reason to know” does not imply a duty to investigate: Restatement (Second) of Torts § 12, cmt. a. Landlords are not obligated to conduct background checks on tenants’ pets.

A dog’s breed alone is not sufficient to put its owners or others on notice that it poses an unreasonable risk of harm,. In Vermont, liability in dog-bite cases has always depended on the propensities of the individual animal.

Assuming for the purpose of summary judgment that the jury could find the guest was acting as the dogs’ keeper, plaintiffs’ negligence claim against him still fails, for the same reason as their claim against the landlord: they have not shown that the guest knew that the dogs posed a threat to anyone. Plaintiffs have failed to present evidence from which a reasonable jury could conclude that defendant knew or had reason to know that the dogs were a probable source of danger, such that he owed a duty to third persons to restrain them. Nor have they demonstrated that he voluntarily undertook to restrain the dogs.

Plaintiff in premises liability case had sufficient evidence that defendant had a duty, despite the obvious danger, not to order plaintiff roofer to go onto a frosted roof.

LeClair v. LeClair, 2017 VT 34 (May 12, 2017)

DOOLEY, J.. Plaintiff appeals from the trial court's grant of summary judgment to defendant, plaintiff's grandfather, in this negligence action. Plaintiff argues that the trial court erred by concluding that defendant owed him no duty. We reverse and remand.

Plaintiff fell from a second-story roof and landed on the paved driveway below, sustaining serious and permanent head and spinal injuries while working to help replace the roof on the building in which defendant has his office. Plaintiff claims that he initially decided not to work on the roof because the frost made it slippery but changed his mind when defendant arrived at the property and ordered him to begin work. Plaintiff contends that the facts alleged in the complaint and that emerged through discovery presented a jury question as to whether defendant breached his duty to exercise reasonable care in demanding that plaintiff get on the frost-covered roof.

The critical issue in this case is whether defendant, under the circumstances, should have expected that plaintiff would not protect himself from the danger that was open and obvious to both of them. Under § 343 of the Restatement (Second) of Torts a "possessor of land" may be liable "for physical harm caused to his invitees by a condition on the land if the possessor "should expect that they will not discover or realize the danger, or will fail to protect themselves against it." Section 343 should be read together with § 343A, which provides that "[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts § 343A

We recognize that some of our older cases concerning this area of the law have found no liability to an invitee when an injury was caused by a condition that was obvious or known to the invitee. These decisions arose when contributory negligence was a total defense to negligence liability.We concur with the holding of Wisdom v. TJX Companies, Inc., 410 F. Supp. 2d 336, 344 (D. Vt. 2006), that while "Vermont law has traditionally afforded a measure of protection to business owners whose invitees injure themselves by disregarding obvious dangers," this protection now bears more on the plaintiff's comparative negligence than on the defendant's duty of care.

We conclude that the facts of this case, as alleged, do not preclude a finding of duty under § 343 and § 343A, The key alleged fact in this case is that defendant, in a position of authority vis-à-vis plaintiff, ordered him to go onto the frosted roof despite the obvious danger involved. A jury could conclude that, in ordering plaintiff to climb onto the roof despite its dangerous condition acknowledged by both defendant and plaintiff, defendant should have anticipated that the condition of the roof presented an unreasonable risk of harm to plaintiff. A jury could conclude that defendant breached a duty to protect plaintiff from encountering an open-and-obvious dangerous condition on his property by demanding that he encounter the dangerous condition. Accordingly, the superior court's grant of summary judgment to defendant on plaintiff's premises liability claim was inappropriate

ROBINSON, J., concurring in part and dissenting in part. I cannot join the majority's conclusion that defendant, as the property owner, can be held liable pursuant to the common law of premises liability for injuries resulting when a roofer climbed onto a frost-covered roof, stripped of shingles and covered with underlayment, thereby encountering dangers that were obvious and acknowledged by plaintiff before he climbed onto the roof. The majority's analysis suffers from two critical flaws: First, it misconstrues the scope of a landowner's common law duties concerning the condition of the premises in circumstances like this. Second, it rests on the assertion that defendant's familial relationship with plaintiff gave defendant "authority" over plaintiff such that defendant was legally accountable as landowner for plaintiff's choices.

I is difficult to imagine what the landowner's duty would be in this case. It clearly isn't a duty to warn, because there is no dispute that plaintiff was fully on notice of the danger. The reality is, this is not really a premises liability case at all. That is, plaintiff's claim is not really predicated on unreasonably dangerous conditions of the premises. Plaintiff's claim is that his grandfather goaded him into doing something dangerous, and he was injured as a result. This isn't a premises liability claim. It is not tied to defendant's status as landowner, or a breach of any duty with respect to the condition of the land.

In connection with the premises liability claim, there is no evidence that plaintiff was not competent, or had a special, cognizable vulnerability. Plaintiff was undisputedly a mature, twenty-seven-year-old man at the time of the accident. If there is a tort theory that supports liability when a defendant urges another competent adult to undertake dangerous activity, plaintiff has not pled or argued it.

I dissent from the majority's analysis of the premises liability claim. I would affirm that claim.


SCOVT NOTE: An example of where the Restatement says the possessor “should anticipate the harm despite such knowledge or obviousness” is where “the possessor has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it. Restatement (Second) of Torts § 343A, comment f. (1965) The current Restatement's view on “open and obvious" dangers is stated in Restatement (Third) of Torts: Phys. & Emot. Harm § 51 (2012), comment k.  Compare Menard v. Lavoie, 174 Vt. 479, 806 A.2d 1004, 1006 (2002) (mem.) (homeowners not negligent as a matter of law for spiral staircase fall because "[w]hatever dangers the stairs posed were obvious to any observer, and were well known by plaintiff”) with Ainsworth v. Chandler, 2014 VT 107  (holding a reasonable jury could conclude that either the danger on a stairway was not open and obvious or "that defendant should have foreseen the harm even if the danger was obvious.").

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.

Premises liability. Under standard of reasonable care jury could find that owner should have foreseen the harm even if the danger was obvious. Court gives force to change in law while case on appeal -- abrogating invitee/licensee distinction.

Ainsworth v. Chandler, 2014 VT 107 (29-Aug-2014)

REIBER, C.J. These consolidated cases stem from alleged injuries suffered by plaintiff Faye Ainsworth while she was at defendant Charles Chandler’s business, Chandler Electric. Plaintiff filed suit, claiming that she was injured when she tripped on a coil of wires that had been placed in the stairway. Defendant filed suit against his insurer, Concord Insurance Group (insurer), arguing that insurer had wrongfully and in bad faith failed to provide adequate coverage for the claim. Insurer filed a counterclaim seeking a declaration of noncoverage. The court granted summary judgment to defendant, concluding that plaintiff was a social guest of defendant at the time of her visit, that the duty of care defendant owed her was the lesser duty applicable to licensees under Vermont law, as contrasted with that owed to business invitees, and that defendant did not breach this duty. The trial court also granted summary judgment to insurer, on the basis that the underlying personal injury action had been dismissed and therefore no coverage was owed. For the following reasons, we reverse with respect to plaintiff’s suit and reverse and remand for further proceedings with respect to defendant’s claim against insurer and insurer’s counterclaim for declaration of noncoverage.

We begin with plaintiff’s claim that the court wrongfully found that she was a social guest rather than a business invitee. We reverse and remand for further proceedings in light of our recent abrogation of the common law distinction between invitees and licensees, as held in Demag v. Better Power Equipment, 2014 VT 78, ¶ 26, ___ Vt. ___, ___ A.3d ___. We find Demag controlling based on the common-law rule, recognized in both civil and criminal litigation, that a change in law will be given effect while a case is on direct review. In accordance with Demag, on remand the trial court is to apply the standard of “reasonable care under all the circumstances,” which “is no more and no less than that of any other alleged tortfeasor.” Id. ¶¶ 26-27 (quotations omitted). In this determination, “[t]he entrant’s status, no longer controlling, is simply one element, among many, to be considered in determining the landowner’s liability under ordinary standards of negligence.” Id. ¶ 26 (quotation omitted).

Given plaintiff’s deposition testimony that she did not see the wire in the stairs before she tripped, and defendant’s admissions that the area was poorly lit, covered in debris, and unsecured, a reasonable jury could conclude that either the danger was not open and obvious or that defendant should have foreseen the harm even if the danger was obvious. Thus, a jury could find that defendant had a duty to make the condition safe or warn plaintiff of the danger, and that he breached this duty. Cf. Menard, 174 Vt. at 479-80, 806 A.2d at 1005-07 (holding defendants not liable for negligence under either an invitee or licensee standard where danger of spiral staircase was obvious to plaintiff, defendants had installed a guardrail, area was well-lit, and there was no “foreign substance” on the stairs) Viewing the facts in the light most favorable to plaintiff, plaintiff has presented a genuine issue of material fact as to the elements of common law negligence sufficient to defeat summary judgment.

As to defendant’s lawsuit against insurer, the court’s order granting summary judgment in favor of insurer hinged on its dismissal of plaintiff’s claims. Accordingly, we reverse the court’s grant of summary judgment in favor of insurer and remand for further proceedings consistent with this opinion.

SCOVT abolishes distinction between licensees and invitees in premises liability cases. Duty of reasonable care owed to all lawful visitors, not just business visitors. Trespasser rule not addressed “at this time.”

Demag v. Better Power Equipment, Inc., 2014 VT 78 (18-Jul-2014)

The history of the law on the subject of landowners and licensees shows a tendency to whittle away a rule which no longer conforms to public opinion. ~ Cameron v. Abatiell, 127 Vt. 111, 114, 241 A.2d 310, 312 (1968)

DOOLEY, J.  Plaintiff appeals a summary judgment against him in this case to recover damages for the injuries he suffered as a result of a fall into an uncovered storm drain in defendant BPE’s parking lot. Consistent with our current negligence law, the trial court found that plaintiff was a licensee of BPE, rather than an invitee. It then concluded that plaintiff was entitled to a lesser standard of care from BPE, which allowed for summary judgment against him. We determine that the time has come to abolish Vermont’s common-law negligence distinction between licensees and invitees and reverse and remand.

Plaintiff worked for a car dealership. As a convenience for BPE’s general manager and his wife Plainitff would pick up their car from BPE’s parking lot when it needed service. In January 2009, plaintiff drove to the lot to pick up the car and fell into an uncovered storm drain. Recent snowfall had obscured the drain so that its opening was not obvious. BPE and its employees were not aware that the storm drain was uncovered until plaintiff fell into it.

The trial court correctly noted that under our traditional common-law approach to landowner liability, the landowner’s duty to an entrant on his or her land depends on whether the entrant is an invitee, a licensee, or a trespasser. The trial court found that plaintiff was a licensee at the time of his injury. Citing to the Restatement (Second) of Torts § 342 cmt. c (1965), the court determined that the landowner had no duty to “inspect the land to discover possible or even probable dangers.”

Plaintiff argues that this Court should hold that all lawful visitors to business premises should be entitled to a duty of reasonable care.

We have long maintained the traditional, common-law approach to landowner liability, holding landowners to different duties of care depending on whether a land entrant is an invitee, licensee, or trespasser. Cameron v. Abatiell, 127 Vt. 111, 114, 241 A.2d 310, 312 (1968). In this decision, we do not address the duty owed by a landowner to a trespasser; we focus only on the distinctions we have drawn between licensees and invitees.

An invitee is one who “enters the land for the purpose of business dealings with the landowner.” The landowner owes a duty of reasonable care to an invitee, such that the invitee “is not unnecessarily or unreasonably exposed to danger.” A licensee is one who merely “enters or remains on land with the consent of the landowner.”

We will modify settled aspects of the common law only when plainly justified by evolving common standards.

Common standards have evolved. A slight majority of state courts have now abolished the distinction between licensees and invitees. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 51, Reporter’s Note, cmt. a, tbl. (2012). For the last thirty-five years, reform states have included all of Vermont’s closest neighbors.

The arbitrariness, rigidity and complexity of the distinctions that have developed to separate licensees from invitees is one of the reasons many courts have abandoned the classifications. The common law arose when “the presumption [was] that landowners generally were free to act as they pleased within the confines of their own property.” We are now in a different legal context, where control of land use for the protection the public is pervasive. The value we place on human health and safety has increased. The lower standard of care for landowners in relation to licensees is an anomaly in modern tort law.We conclude that this is an issue on which the need for modernization is so strong that we must act.

We hold that a landowner owes the same duty of care to a licensee as to an invitee. The standard of “reasonable care in all the circumstances” will better reflect our common expectation of the duty of care owed by landowners and occupiers to all lawful entrants. An entrant’s status, no longer controlling, is simply “one element, among many, to be considered in determining the landowner’s liability under ordinary standards of negligence.”

In making this change applicable to all lawful land entrants, we reiterate that we make no determination as to the duty owed to trespassers at this time. The rule as to trespassers that we recently stated in Farnham—that “a landowner owes no duty to protect a trespasser from injury caused by unsafe or dangerous conditions”—remains good law in Vermont.  Farnham v. Inland Sea Resort Properties, .2003 VT 23, ¶ 8.

The evidence creates a question of fact sufficient to reach the jury under our new standard of care, whether the uncovered storm drain was reasonably foreseeable to BPE. 

Reversed and remanded for further proceedings not inconsistent with this opinion.

Premises liability. Owner liable for injury to worker resulting from defective ventilation system, even though occupant was in control of system and had sole duty to provide safe workplace.

Arnold v. Palmer, 2011 VT 8, ¶ 12 (mem.)

This is a wrongful death and survival action brought by the estate and survivors of a funeral director who died from cancer after exposure to formaldehyde in defendant landlords’ building. Landowners argue for summary judgment on the grounds that they lacked any duty to maintain or repair the ventilation system because they had no control over the system.  Further, they argue that it was the tenant’s duty to provide a safe workplace for its employees. We reject this claim.

Vermont landlords “may be held liable for exposing their tenants to unreasonable risks of harm in the leased premises, whether or not they retain ‘control’ of the dangerous condition.”  Favreau v. Miller, 156 Vt. 222, 228, 591 A.2d 68, 72 (1991).  A landlord’s duty to maintain the premises is not the same as an employer’s duty to provide a safe workplace for its employees.  Vella, 2003 VT 108, ¶ 14.  A landlord’s duty to maintain the premises is an “independent, personal duty.”  Id.

Torts: implied warranty of habitability does not protect tenant’s automobile from falling ice and snow.

Weiler v. Hooshiari,  2011 VT 16 (Burgess, J.)

 Landlord appeals from a judgment in favor of his former tenant finding that landlord violated the implied warranty of habitability when heavy snow and ice fell from the roof of tenant’s residence onto her parking place, destroying her car.  We hold that the implied warranty of habitability does not protect tenant’s automobile and therefore reverse.

The warranty of habitability promises that the landlord “will deliver over and maintain, throughout the period of the tenancy, premises that are safe, clean and fit for human habitation.”  9 V.S.A. § 4457 (a); Hilder, 144 Vt. at 159, 478 A.2d at 208.. No jurisdiction extends the warranty of habitability beyond essential sanitation and tenant safety. The warranty does not extend to loss of personal property.

In Favreau v. Miller, we declined to extend the implied warranty of habitability to personal injuries.  156 Vt. 222, 591 A.2d 68 (1991).  Favreau recognized that remedies at law already exist for personal injuries and that “the concepts of tort and negligence law provide the more straightforward way to describe the respective duties and liabilities of the parties.”  Id. at 229, 591 A.2d at 73.  We specifically declined to “do away” with the principles of tort-based claims for bodily injury in favor of recovery of all damages stemming from a breach of lease regardless of fault.  Id. at 230, 591 A.2d at 73.  

The precepts of Favreau are applicable here. Claims for personal injury or property damage sound in tort, typically in an action for negligent breach of a duty of care, and depend on comparative degrees of fault.  The Restatement confirms that, in addition to a breach of the implied warranty of habitability, a tenant must show the landlord “failed to exercise reasonable care to repair the condition,” a negligence standard.  Restatement (Second) of Property: Landlord and Tenant § 17.6.  

Plaintiff did not plead negligence.