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.

Divided Court affirms denial of motion to suppress breath test, holding no violation of statutory right to consult counsel where officer provided materially false information to on-call attorney – declining to overrule State v. Fredette, 167 Vt. 586 (1997) (mem.) )

 Stare Decisis. Breath Test. 

State v. Eaton, 2026 VT 14 [4/24/2026]

SCOVT reverses and remands criminal conviction, holding that jury charge defining “beyond a reasonable doubt” as “great certainty” is plain error under federal standards, overruling State v. Levitt, 2016 VT 60

 

1.    Plain Error. Stare Decisis

      State v. Kolts, 2026 VT 10 [4/10/2026] 

SCOVT overrules Kuhling v. Glaze, 2018 VT 75, ¶ 11, as to the standard of review of conclusions of law, holding de novo review is limited to “pure questions of law” and that a trial court's conclusions will be affirmed where they are "reasonably drawn from the evidence presented."

Jackson v. Jackson , 2025 VT 29 [June 6, 2025.] (Affirms superior court merits ruling and fee award on appeal from probate court in dispute between beneficiaries and a trustee, holding the record supports the findings and the findings support the court's conclusions, including the award of attorney’s fees for work in both courts under 14A V.S.A. § 1004 of the Vermont Trust Code,)

EATON, J.   Petitioners Anne and Jeffrey Jackson sought to remove their father Willard Jackson as trustee of two trusts for which Willard is an income beneficiary and they are remainder beneficiaries.  Petitioners sought to terminate Willard’s beneficial interest in the income of the trusts, terminate the trusts, and distribute the trust assets to the beneficiaries based on an allegation of breach of trust.  Petitioners also sought to have Willard pay restitution to the trust from his personal assets to restore the value of the trust assets that they argued were improvidently spent.  Petitioners initiated their action in the probate division in April 2021 against Willard individually and in his capacity as trustee.  The probate division granted their request to remove Willard as trustee and granted petitioners’ request for attorney’s fees from Willard personally under 14A V.S.A. § 1004.  Willard appealed to the civil division, which considered the matter de novo.  Following a five-day bench trial, the civil division rejected petitioners’ arguments and granted judgment to Willard.  The court also granted Willard’s request for attorney’s fees from petitioners pursuant to 14A V.S.A. § 1004.  Petitioners appeal, arguing that the court erred in rejecting their claims and in awarding attorney’s fees to Willard.  We affirm.

 

Petitioners ask this Court to consider the probate decision as persuasive. We decline to do so. The trial court here conducted a de novo bench trial and the trial court's decision is the only decision before this Court on appeal.

 

The arguments here involve fact-specific inquiries, appropriately subject to a deferential standard of review:

“This Court's review of a trial court's findings . . . following a bench trial is limited. A trial court's factual findings will not be disturbed on appeal unless clearly erroneous when viewed in the light most favorable to the prevailing party. A finding will not be disturbed merely because it is contradicted by substantial evidence; rather, an appellant must show there is no credible evidence to support the finding. This Court gives due regard . . . to the opportunity of the trial court to judge . . . the credibility of the witnesses, and will accordingly defer to the court's determinations regarding the credibility of witnesses and . . . the persuasive effect of the evidence. Finally, a trial court's conclusions will be affirmed where they are reasonably drawn from the evidence presented.”

Lofts Essex, LLC v. Strategis Floor & Décor Inc., 2019 VT 82, ¶ 17 

 

This case does not present pure questions of law subject to de novo review. To the extent that we suggested otherwise in Kuhling v. Glaze, 2018 VT 75, ¶ 11, 208 Vt. 273, 196 A.3d 1125 (“On appeal, we review the trial court's findings of fact for clear error, and its legal conclusions de novo”), the language to that effect conflicts with Lofts Essex, LLC and is overruled.

Petitioners fail to show that the court's findings are clearly erroneous. Petitioners essentially challenge the trial court's assessment of the weight of the evidence and the credibility of witnesses and we do not reweigh the evidence on appeal. While petitioners disagree with the trial court's conclusions, they do not demonstrate error. The court applied the appropriate legal standard. Its findings are supported by the record, and the findings in turn support the court's conclusions. We therefore affirm the court's merits decision in Willard's favor.

 

Two weeks after the merits decision in his favor, Willard moved for attorney's fees under 14A V.S.A. § 1004 of the Vermont Trust Code, which is based on the Uniform Trust Code. Section 1004 provides:

In a judicial proceeding involving the administration of a trust, the Probate Division of the Superior Court, as justice and equity may require, may award costs and expenses, including reasonable attorney's fees, to any party, to be paid by another party or from the trust that is the subject of the controversy.

 The court granted Willard's motion in the full amount requested.   On appeal petitioners argue that there is no basis in "justice or equity" for the award and that the court did not make sufficient findings to support its award. While the court's findings are not extensive, it provided a reasoned basis for its decision and acted within its discretion in awarding fees. We can discern from the court's decision "what was decided and why," which is the purpose of findings. Petitioners did not object below to the time spent by counsel or the rates charged. Petitioners do not show where in the record they argued that the court should not award fees associated with the probate proceeding. The court acted within its discretion in awarding attorney's fees to Willard and we find no grounds to disturb its decision

Affirmed.

SCOVT NOTE 1. Attorney's fees under 14A V.S.A. § 1004.

Compare Curran v. Building Fund of the United Church of Ludlow, 2013 VT 118 ) (where beneficiaries successfully defended settlor's capacity to execute trust trial court did not abuse its discretion in determining “justice and equity” did not require an award of attorney’s fees under 14A V.S.A. § 1004.)

SCOVT NOTE 2: STANDARD OF REVIEW OF "LEGAL CONCLUSIONS"

The statement in Kuhling v. Glaze (EATON, J.), which is here overruled - that a trial court's legal conclusions are reviewed de novo - derives from N.A.S. Holdings, Inc. v. Pafundi, 169 Vt 437 (1999). Pafundi was an adverse possession case where the Court said the trial court's own findings established a different outcome as a matter of law. The Court reversed a ruling that the appellant had established title only to the floor of a slate quarry but not to its walls and held the appellant established adverse possession of the entire quarry on the basis of facts found by the trial court. The Court reviewed the trial courts' conclusions de novo, stating:

Adverse possession is a mixed question of law and fact . . .When reviewing the factual findings of a trial court, . . .findings will stand if there is any reasonable and credible evidence to support them. Review of conclusions of law, however, is nondeferential and plenary. See State v. Pollander, 167 Vt. 301, 304, 706 A.2d 1359, 1360 (1997) (questions of law reviewed de novo); State v. Madison, 163 Vt. 360, 371, 658 A.2d 536, 543 (1995) ("review de novo" commonly used to describe nondeferential on-the-record standard of review that appellate courts apply to lower court determinations regarding questions of law or mixed questions of law and fact)

169 Vt. at 438-39 (Citations omitted.).

The standard in Lofts Essex quoted by the Jackson Court-- that a trial court's conclusions will be affirmed where they are "reasonably drawn from the evidence presented." -- derives from tax appeal cases. E.g. Dewey v. Town of Waitsfield, 2008 VT 41 ¶ 3. But it also   appears in other contexts. E.g..In re Burton Corp. Conditional Use/Act 250, 2024 VT 40 ¶ 18 (" The Environmental Division's legal conclusions are reviewed de novo but will be upheld 'if they are reasonably supported by the findings.'"); Hirchak v. Hirchak, 2024 VT 81 ¶ 15 ("'Where the trial court has applied the proper legal standard, we will uphold its conclusions of law if reasonably supported by its findings.' . . . However, we review pure questions of law de novo")

Unanimus Court affirms denial of stalking complaint because defendant’s conduct did not fall within the statutory definition of stalking, as recently interpreted by a divided Court.

Morton v. Young, 2023 VT 29 

WAPLES, J. Plaintiff Ava Morton appeals the denial of her complaint for an order against stalking. We conclude that defendant’s conduct did not fall within our recent interpretation of the statutory definition of stalking, which encompasses “only threats of physical harm,” and therefore affirm the decision below.

In Hinkson v. Stevens, a majority of this Court concluded that the term “threatens, or makes threats about” in § 5131(1) encompasses “only threats of physical harm.” 2020 VT 69, ¶ 42. 

 As Hinkson plainly controls this case plaintiff urges us to reconsider Hinkson . She argues that a threat to disseminate nude photos, while not a “true threat” of physical harm, is also not a constitutionally protected activity and therefore can be restrained by the civil stalking statute. She contends that Hickson was wrongly decided and unsupported by the previous Vermont caselaw referred to in the decision.

We considered and rejected most of plaintiff’s arguments in Hinkson. See 2020 VT 69, ¶¶ 32-34, ¶¶ 44-46; id. ¶¶ 54-62, 71 (Reiber, C.J., dissenting)

“While not slavish adherents to stare decisis, we generally require more than mere disagreement to overturn a decision, particularly one of such recent vintage.” State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem.) (citation omitted). Plaintiff has offered no persuasive reason for us to overrule a case decided just three years ago. There is no evidence that this Court has moved away from our holding in Hinkson  since it was issued or that Hinkson was inconsistent with a trend in other jurisdictions. Cf. Coop. Fire Ins. Ass’n of Vt. v. White Caps, Inc., 166 Vt. 355, 356, 694 A.2d 34, 34 (1997) (reconsidering previous caselaw based in part on evolving trends in jurisprudence of other jurisdictions). Nor has the Legislature amended the statute since we decided Hinkson . See Chittenden v. Waterbury Ctr. Cmty. Church, Inc., 168 Vt. 478, 490-91, 726 A.2d 20, 29 (1998) (noting that “we do not lightly overrule settled law especially where it involves construction of a statute which the legislature could change at any time.” (quotation omitted)). These considerations weigh against overturning Hinkson , “even assuming that current members of the Court would have reached a different decision.” O’Connor v. City of Rutland, 172 Vt. 570, 571, 772 A.2d 551, 553 (2001).

Affirmed.

How cited

SCOVT NOTE. State Decisis.  This case is in a  line of authority reciting the  proposition that “mere disagreement” is not grounds to overrule "recent" precedent, "especially where the precedent could be changed easily by legislation at any time.” O’Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.); State v. Berini,, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem)

On the other hand, the Court, will overrule a precedent interpreting a statute if the interpretation is is "simply wrong." In re SD, 2022 VT 44.

And the age of the precedent should  not matter. The Court has upheld 200 year-old  precedent, despite its age.  Ferry v. City of Montpelier, 2023 VT 4.  And it has overruled cases as little as one ,two or three years-old, despite their recent vintage.  See State v. Haynes, 2019 VT 44 (overruling State v. Lyford, 2016 VT 118 as inconsistent with a specific Court rule); Whippie v. O'Connor, 2011 VT 97 (mem.) (overruling Massey v. Hrostek, 2009 VT 70, as overlooking settled prior law); Town of Lyndon v. Burnett's Contracting Co., 138 Vt. 102, (1980) (overruling In re Town of St. Johnsbury Town School District, 137 Vt. 557 (1979) as overlooking a specific Court rule.)

A perhaps more important factor in Morton v. Young is that the precedent in question was decided over a dissenting voice. A dissent usually means the Court has already fully considered the arguments, has not overlooked anything, and is not "simply wrong." This is not a Court likely to reconsider just because the composition of the Court has changed. 

As Chief Justice Reiber did here, dissenting judges ordinarily join in the majority the next time around. For another example, see Justice Johnson’s opinion dissenting from the reversal of a punitive damage award in Brueckner v. Norwich University, 169 VT 118 (1999) and her opinion relying on  the  Brueckner  majority in support of the reversal of a punitive damage award. in Monahan v. GMAC Mortg. Corp,  2005 VT 110 ¶57.

SCOVT declines to overrule 200-year-old precedent and holds that the voter- citizenship requirement of Chapter II, § 42 of the Vermont Constitution does not apply to municipal elections.

 Ferry  v. City of Montpelier, 2023 VT 4 [filed 1/20/2023]

EATON, J. In this declaratory-judgment action, we are asked to consider whether a statute allowing noncitizens to vote in City of Montpelier elections violates the voter-eligibility requirements set forth in Chapter II, § 42 of the Vermont Constitution. We conclude that the statute allowing noncitizens to vote in local Montpelier elections does not violate Chapter II, § 42 because that constitutional provision does not apply to local elections. We accordingly affirm the trial court’s grant of the City’s motion to dismiss.

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:

Because § 42 is an older constitutional provision with a complicated history, our analysis of the text requires historical analysis. When we look to the plain text of a constitutional provision, we often simultaneously rely “on historical context to illuminate [its] meaning.” State v. Misch, 2021 VT 10, ¶ 12, 214 Vt. 309, 256 A.3d 519 (per curiam) 

From this history, we know that “voter” in § 42 is synonymous with “freeman,” and since 1828, at the latest, citizenship has been required to exercise the “privileges of a freeman in this State.” The operative question then becomes: what does it mean to have the “privileges of a freeman” under § 42? ¶ 33. Our precedents answer this question.

Marsh and Woodcock demonstrate that a “freeman” is an individual with the ability to vote in statewide elections in Vermont. State v. Marsh, N. Chip. 17 (1789); Woodcock v. Bolster, 35 Vt. 632 (1863) Therefore, under § 42, to exercise the “privileges of a freeman in this State” is to vote in statewide elections. These cases dictate that § 42 does not apply to municipal elections.

Plaintiffs assert that this conclusion is incorrect. First, they argue that the plain text of § 42 clearly applies to voters in all Vermont elections. Second,they argue Woodcock and Marsh , “outmoded” and should not be applied because of changes over time. 

Principles of stare decisis are a necessary lens through which to evaluate these arguments. “[T]his Court is not a slavish adherent to the principle of stare decisis, but we will not deviate from policies essential to certainty, stability, and predictability in the law absent plain justification supported by our community’s ever-evolving circumstances and experiences.” State v. Carrolton, 2011 VT 131, ¶ 15; see Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 14 (recognizing that changes in social and economic circumstances over time may require deviation from precedent). 

Plaintiffs’ arguments do not convince us that Woodcock and surrounding precedents were wrongly decided then or that changed circumstances since those decisions require us to reach a different conclusion now.

Plaintiffs claim was properly dismissed on the merits because our precedents demonstrate that § 42 does not apply to municipal elections and we decline to overrule or abrogate those precedents in this case. 

Affirmed.

 How cited

SCOVT NOTES: 

 

1) NONCITIZEN VOTING

Noncitizen voting is not a novel idea. The right to vote is not an incident of U. S. citizenship, but is a matter of state law.  Historically, other states have permitted foreigners to vote:

The privilege to vote in any State is not given by the Federal Constitution, or by any of its amendments. It is not a privilege springing from citizenship of the United States. Minor v. Happersett, 88 US. 162 (1875)  It may not be refused on account of race, color or previous condition of servitude, but it does not follow from mere citizenship of the United States. In other words, the privilege to vote in a State is within the jurisdiction of the State itself, to be exercised as the State may direct, and upon such terms as to it may seem proper, provided, of course, no discrimination is made between individuals in violation of the Federal Constitution. The State might provide that persons of foreign birth could vote without being naturalized.

Pope v. Williams, 193 US 621, 632-33 (1904) (citing Minor v. Happersett for its statement that under certain circumstance's the constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, Missouri and Texas permit voting by persons of foreign birth before naturalization.)

2) STARE DECISIS and CONSTITUTIONAL INTERPRETATION

This case -- involving a test of an ancient interpretation the Vermont Constitution -- recites a standard requiring “plain justification" supported by evolving community experience, to overrule the precedent. 

The cases cited by the Ferry Court for this standard did not involve a constitutional issue. State v. Carrolton, 2011 VT 131, ¶ 15; Demag v. Better Power Equip., Inc., 2014 VT 78, ¶ 14.  They are in a line of authority that says “mere disagreement” is not grounds to overrule recent precedent, "especially where the precedent could be changed easily by legislation at any time.” O’Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.); State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem); see also Haupt v. Triggs , 2022 VT 61.

Just months ago the Court overruled a constititional interpretation simply because it was “decided incorrectly.” State v. Downing, 2020 VT 101 ¶ 22 (overruling a case that misinterpreted a bail statute expressed in terms identical to the Constitution). The Ferry Court holds the challenged precedent was correctly decided, thus leaving the requirement of “plain justification” in constitutional cases mere dictum.

Downing is consistent with decisions of the U. S. Supreme Court that the rule of stare decisis is relaxed in constitutional cases, because judicial action is the only recourse short of constitutional amendment. E.g. Smith v. Allwright, 321 U.S. 649, 665 (1944). But cf. Arizona v. Rumsey, 467 U.S. 203, 212 (1984) (Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands "special justification")

Indeed, some recent Vermont Supreme Court cases involving statutory interpretation do not follow the O’Connor caution. Instead, the Court has said it will overrule prior case law when it  determines the  earlier decision is "simply wrong." In re SD, 2022 VT 44 (overruling a 2007 case and holding the statutes grant no right for the State to appeal the dismissal of a delinquency petition). This simply-wrong standard traces back to a comment of Justice Jackson that there is “no reason why [the Court] should be consciously wrong today because [it] was unconsciously wrong yesterday."  Massachusetts v. United States, 333 U.S. 611, 639-40, (1948) (Jackson, J., dissenting).

It appears that "plain justification" is not necessarily required to overrule even a statutory interpretation, and that  Ferry is better viewed as an independent interpretation of the Constitution, rather than as an application of stare decisis to decide the constitutional question.

Legal malpractice. Successor attorney who committed alleged errors in resolving case not liable to predecessor attorney for indemnity or contribution

 

Haupt v. Triggs , 2022 VT 61 [filed December 16, 2022]

REIBER, C.J. This appeal stems from third-party claims in a legal-malpractice action. Plaintiffs filed suit against defendant, attorney Daniel S. Triggs, who represented plaintiffs in a property dispute for allowing 12 V.S.A. § 501’s statute of limitations for recovery of lands to run without filing an ejectment suit against neighbors. Triggs filed a third-party complaint for contribution and indemnification against the attorneys who succeeded Triggs as counsel to plaintiffs in the matter. The third-party complaint for indemnity and contribution, alleges that the underlying adverse-possession suit against plaintiffs was meritless and that third-party defendants should have obtained a merits judgment instead of settling the dispute. Third-party defendants filed a motion to dismiss Triggs’s complaint, and the civil division granted their motion. Triggs appeals this dismissal and urges this Court to overturn its longstanding precedent regarding contribution and indemnity. We decline to do so and affirm the civil division’s dismissal

In granting Third-party defendants filed a Vermont Rule of Civil Procedure (12)(b)(6) motion to dismiss the civil division concluded that Triggs had failed to allege any relationship between himself and third-party defendants that might give rise to an implied right of indemnity, and that his claim “is at best a claim for contribution among joint tortfeasors, which Vermont law does not recognize.”

“[A]lthough we are not ‘slavish adherents’ to [the doctrine of stare decisis], neither do we lightly overturn recent precedent, especially where the precedent could be changed easily by legislation at any time.” O’Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.). To overturn precedent, “we generally require more than mere disagreement.” State v. Berini, 167 Vt. 565, 566, 701 A.2d 1055, 1056 (1997) (mem.

Triggs argues that Vermont’s no-contribution rule should not apply to claims brought by prior counsel against successor counsel in legal-malpractice suits. He cites cases from California, Illinois, Maine, Massachusetts, Maryland, Washington, and Wisconsin, where courts allowed contribution claims under similar circumstances, and he discusses the public-policy concerns underlying these cases. Unlike Vermont, however, those jurisdictions recognized contribution, either by statute or at common law, at the time these cases arose.

We have for decades declined to revisit our no-contribution rule, preferring not to substitute judicial fiat for legislative action. Triggs cites no Vermont authority supporting his argument that this Court should overturn its well-settled precedent regarding contribution, and, even if he did so, we are not inclined to weigh the comparative merits of competing public-policy arguments, which is a matter best left to the Legislature.

Because Triggs does not allege that third-party defendants expressly agreed to indemnify him, his indemnity claim will survive only if implied by a legally cognizable relationship. It is axiomatic that a party seeking implied equitable indemnity may recover only where its potential liability is vicariously derivative of the acts of the indemnitor and it is not independently culpable. Heco v. Foster Motors, 2015 VT 3, ¶ 10, 198 Vt. 377, 114 A.3d 902. Triggs does not allege that any legal relationship—contractual or otherwise— existed between him and third-party defendants. Instead, Triggs alleges that third-party defendants’ independent actions caused plaintiffs’ injury. This is not a basis for implied indemnity. Triggs has alleged no legally cognizable relationship linking him to third-party defendants and, therefore, his indemnification claim must fail as a matter of law.

Affirmed

How cited

SCOVT note: 

Stare decisis. Compare Whippie v. O'Connor, 2011 VT 97 (mem.)(cotenant who excludes his cotenants from possession and enjoyment of the jointly owned property is entitled to contribution for necessary maintenance costs such as mortgage, taxes and insurance during the period of ouster, overruling Massey v. Hrostek, 2009 VT 70, as based on an incorrect statement of prior law).

Indemntiy: The opinion contains a restatement of Vermont law of implied indemnity, which it characterizes as requiring "a legally cognizable relationship" linking indemnitee and indemnitor:

According to our precedents, “indemnity is a right accruing to a party who, without active fault, has been compelled by some legal obligation, such as a finding of vicarious liability, to pay damages occasioned by the negligence of another.” Morris v. Am. Motors Corp., 142 Vt. 566, 576, 459 A.2d 968, 974 (1982). “Unlike contribution in which liability is shared by joint tortfeasors, the right of indemnity shifts the entire loss upon the real wrongdoer.” Peters, 159 Vt. at 428, 620 A.2d at 1270. In Vermont, indemnity arises in two ways: (1) through “an express agreement by one party to indemnify the other, or (2) [because] the circumstances are such that the law will imply such an undertaking.” Id. at 427, 620 A.2d at 1270. The latter, “[i]mplied indemnity[,] will apply only when the party seeking indemnity is vicariously or secondarily liable to the third person because of a legal relationship with the third person or because of the party’s failure to discover a dangerous condition caused by the indemnifying party.” Hemond v. Frontier Commc’ns of Am., Inc., 2015 VT 67, ¶ 11, 199 Vt. 272, 123 A.3d 1176 (quotation omitted). “[I]ndemnity is imputed only when equitable considerations concerning the nature of the parties’ obligations to one another or the significant difference in the kind or quality of their conduct demonstrate that it is fair to shift the entire loss occasioned by the injury from one party to another.” Hemond v. Frontier Commc’ns of Am., Inc, 2015 VT 66, ¶ 9, 199 Vt. 259, 122 A.3d 1205 (quotation omitted). Lastly, “[i]t is axiomatic that a party seeking implied equitable indemnity may recover only where its potential liability is vicariously derivative of the acts of the indemnitor and it is not independently culpable.” Heco v. Foster Motors, 2015 VT 3, ¶ 10, 198 Vt. 377, 114 A.3d 902. Because Triggs does not allege that third-party defendants expressly agreed to indemnify him, his indemnity claim will survive only if implied by a legally cognizable relationship. Triggs has alleged no legally cognizable relationship linking him to third-party Triggs has alleged no legally cognizable relationship linking him to third-party defendants and, therefore, his indemnification claim must fail as a matter of law.

Haupt v. Triggs , 2022 VT 61 ¶¶ 10, 11.

A defendant in a criminal action may seek interlocutory review under VRAP 5 without showing that a conditional guilty plea is not practicable or available before seeking such interlocutory review (overruling State v. Lyford, 2016 VT 118.),

State v.  Haynes, 2019 VT 44 [filed 6/28/2019]

PER CURIAM. Defendants move to reconsider this Court’s dismissal of their interlocutory appeals because defendants had not demonstrated why they could not seek review by entering a conditional guilty plea.

In January 2019, this Court dismissed the interlocutory appeals quoting State v. Lyford, 2016 VT 118, ¶ 2, 203 Vt. 648, 160 A.3d 317 (mem.), for the proposition that generally interlocutory appeals of motions to suppress in criminal cases are not granted “ ‘unless a conditional plea is not available or practicable under the circumstances and the criteria in Rule 5(b) have been met.’ ”

Defendants argue that they should not be required to enter a conditional guilty plea instead of seeking interlocutory review. We agree and conclude that a defendant is not required to demonstrate that a conditional guilty plea is not practicable or available before seeking interlocutory review. A defendant in a criminal action may seek interlocutory review if the requirements of Vermont Rule of Appellate Procedure 5 are met.

In 1971 the Legislature amended § 2386 into separate subdivisions relating to civil and criminal cases. Subdivision (a) regarding civil actions provided that appeals before final judgment for questions of law “may be taken in such manner and under such conditions as the supreme court may by rule provide.” 1971, No. 185, § 57. Subdivision (b) maintained the existing language of the statute, providing that the trial court in its discretion and before final judgment may permit an appeal to be taken by the respondent or the state in a criminal cause.

Following the statutory amendment and the promulgation of Appellate Rule 5, three main themes have been consistent in this Court’s decisions regarding interlocutory appeals by defendants in criminal cases. First, review of denials of motions to suppress in criminal cases are interlocutory and not reviewed as of right until after final judgment. Second, denials of motions to suppress usually do not meet the criteria in  Appellate Rule 5. Id. Third, this Court has the authority to dismiss interlocutory appeals, even when certified by the trial court.

In 1989, Rule 11 of the Vermont Rules of Criminal Procedure was amended to authorize conditional guilty pleas. See V.R.Cr.P. 11(a)(2). The conditional guilty plea was designed to allow defendants who were not eligible to appeal through interlocutory means to get appellate review of pretrial motions without having to go through an entire trial. The Court continued to both grant and deny interlocutory appeals filed by defendants in criminal actions without reference to the availability of a conditional guilty plea.

Upon consideration, we overrule Lyford to the extent that it holds that a defendant is precluded from seeking interlocutory appeal through Appellate Rule 5 if a conditional guilty plea is available. 

 In this case, because the criminal division did not explain the basis for granting interlocutory appeal, we dismiss the interlocutory appeals without prejudice to defendants refiling after the trial court issues a decision.

An interlocutory appeal is appropriate where the order is a “controlling question of law about which there exists substantial ground for difference of opinion” and “an immediate appeal may materially advance the termination of the litigation.” V.R.A.P. 5(b)(1)(A), (B). Regardless of whether the trial court has determined that a case is appropriate for interlocutory appeal, this Court retains authority to dismiss an appeal if the trial court abused its discretion in allowing it.

We review the trial court’s decision to grant interlocutory appeal for an abuse of discretion.. Here, we do not have an explanation of the reasons that the trial court exercised its discretion. Although the court has discretion to allow an interlocutory appeal, it must provide at least some basis for this Court to determine how that discretion was exercised. Therefore, we dismiss the appeals to allow the trial court to issue a new decision providing the grounds for its decision on the motion for interlocutory appeal.

Upon reconsideration, the interlocutory appeals are dismissed without prejudice to defendants refiling after the trial court issues a decision. 

How cited

SCOVT NOTE.ON OVERRULING RECENT PRECEDENT

The Court has recognized the importance of the doctrine of stare decisis, and has noted that, although the Court is not "slavish adherents" to this doctrine, it does not "lightly overturn recent precedent," especially where the precedent could be changed easily by legislation at any time.  O'Connor v. City of Rutland, 172 Vt. 570, 570, 772 A.2d 551, 552 (2001) (mem.)


State v. Haynes overrules a three-year-old case. But this is not a record. See Whippie v. O'Connor, 2011 VT 97 (mem.)(cotenant who excludes his cotenants from possession and enjoyment of the jointly owned property is entitled to contribution for necessary maintenance costs such as mortgage, taxes and insurance during the period of ouster, overruling Massey v. Hrostek, 2009 VT 70, as based on an incorrect statement of prior law); Town of Lyndon v. Burnett's Contracting Co., 138 Vt. 102, (1980) (order being appealed need not be specified in the notice of appeal, overruling In re Town of St. Johnsbury Town School District, 137 Vt. 557 (1979) as overlooking V.R.A.P 3(a) (an appeal from a judgment preserves all claims of error in the record)).

SCOVT affirms summary judgment dismissing claims, including takings claims against municipality arising from sewage backups that were “intermittent, limited, and transient.”

Lorman v. City of Rutland, 2018 VT 64 [filed 6/29/2018]

REIBER, C.J. Plaintiffs sought relief from the City of Rutland after suffering sewage backups in their homes. The trial court granted summary judgment to the City, concluding that plaintiffs failed to adequately support their negligence, nuisance, trespass, and constitutional takings claims. Plaintiffs appeal, arguing that they produced sufficient evidence to survive summary judgment. We affirm the court’s decision

Plaintiffs suggest that a taking has occurred, citing Winn v. Vill. of Rutland, 52 Vt. 481, 494-95  (1880) (stating that village authorities had no “right to make the lands of the plaintiff a place of deposit for the sewage of the village, creating there a cesspool and nuisance, and endangering the lives of the plaintiff and his family, without first making compensation therefor,” and “[s]uch use of the plaintiff’s lands amounts to a taking of his land within the purview of the constitutional requirement that compensation shall be made”)

The City is not immune from takings claims. For a property loss to be compensable as a taking, the government must “intend[] to invade a protected property interest or the asserted invasion [must be] the direct, natural, or probable result of an authorized activity and not the incidental or consequential injury inflicted by the action.” Ondovchik Family 21 Ltd. P’ship, 2010 VT 35, ¶ 16

Although temporary, repeated incursions can sometimes rise to the level of a taking, the incursions must “amount to the taking of an easement. When the intrusion is limited and transient in nature and occurs for legitimate governmental reasons, it does not amount to a taking. Ondovchik, 2010 VT 35, ¶ 18 To the extent that we suggested otherwise in Winn v. Vill. of Rutland, 52 Vt. 481, 491-93 (1880), that suggestion is no longer good law

The undisputed facts here show that the sewage backups on plaintiffs’ property have been intermittent, limited, and transient. The Gallaghers have had one backup since 2007 and the Lormans have had two. The Dalys have had five backups between 1983 and 2014 with the closest backups occurring four years apart. While no backup is insignificant, the backups occurred intermittently over a long period of time, and we conclude that this does not suffice to show a taking under the law. Based on the undisputed facts, the City was entitled to summary judgment on this claim.

How cited

SCOVT interprets zoning ordinance and permit conditions de novo, without deference to environmental court.

In re Confluence Behavioral Health, LLC. , .2017 VT 112 [filed 12/8/2017]

EATON, J. The Environmental Division approved the issuance of a conditional use permit for Confluence Behavioral Health, LLC’s proposed community therapeutic residence in Thetford. A group of neighbors appeal the decision. Neighbors contend that the Environmental Division improperly concluded that Confluence’s therapeutic community residence (the Project) was a health care facility, and thus was an allowed conditional use under the Thetford zoning ordinance. We affirm.

Applying our own statutory interpretation to the evidence, we affirm the Environmental Division’s determination that Confluence’s therapeutic community residence is a “health care facility” under the Thetford Zoning Bylaws and, as such, is an allowed conditional use in Thetford’s Rural Residential area.

We review zoning ordinances and municipal permit conditions according to the principles of statutory construction. Wagner & Guay, 2016 VT 96, ¶ 11. We approach the interpretation of such ordinances and permits as a legal question that we resolve without deference to the trial court. See In re Treetop Dev. Co. Act 250 Dev., 2016 VT 20, ¶ 9, ___ Vt. ___, 143 A.3d 1086 (stating that this Court proceeds “with a nondeferential, on-the-record review” of issues of law and statutory interpretation); see also In re Jenness & Berrie, 2008 VT 117, ¶ 26, 185 Vt. 16, 968 A.2d 316 (“To the extent that the setback issues raises questions of law, our review is de novo.”).

To the extent that we have suggested otherwise in prior decisions, we overrule those statements We now overrule prior cases which afforded deference to the Environmental Division’s interpretation of a permit condition or a local zoning ordinance. Henceforth, we will review the Environmental Division’s interpretation of permit conditions and local zoning ordinances without deference.

Private nuisance law in Vermont does not encompass a cause of action for aesthetic harm alone.

Myrick v. Peck Electric Company, 2017 VT 4 (filed January 13, 2017)

EATON, J. For 120 years, Vermont has recognized that the unsightliness of a thing, without more, does not render it a nuisance under the law. See Woodstock Burying Ground Ass'n v. Hager, 68 Vt. 488, 35 A. 431 (1896). These consolidated cases require us to revisit whether Vermont law recognizes a cause of action for private nuisance based solely on aesthetic considerations. Appellants, a group of landowners from New Haven, appeal from the trial court's grant of summary judgment to defendants, two solar energy companies. The landowners filed suit after their neighbors leased property to the solar companies for the purpose of constructing commercial solar arrays. According to the landowners, the solar arrays constitute a private nuisance because they have negatively affected the surrounding area's rural aesthetic, causing properties in their vicinity to lose value. The trial court consolidated the cases and, noting that this Court's precedent in Hager bars nuisance actions based purely on aesthetics, granted summary judgment to the solar companies. We uphold Vermont's long-standing rule barring private nuisance actions based upon aesthetic disapproval alone. Accordingly, we affirm.

In Vermont, a private nuisance is defined as an "interference with the use and enjoyment of another's property" that is both "unreasonable and substantial." An unattractive sight—without more—is not a substantial interference as a matter of law because the mere appearance of the property of another does not affect a citizen's ability to use and enjoy his or her neighboring land. A substantial interference requires some showing that a plaintiff has suffered harm to "the actual present use of land" or to "interests in having the present use of the land unimpaired by changes in its physical condition."

There is a difference between, on the one hand, a complaint that solar panels are casting reflections and thereby interfering with a neighbor's ability to sleep or watch television and, on the other hand, the landowners' complaint in this case—that the solar panels are unattractive. The former involves a potential interference with the use or enjoyment of property, while the latter does not.
Additionally, a complaint based solely on aesthetic disapproval cannot be measured using the unreasonableness standard that underpins nuisance law. This is because unlike traditional bases for nuisance claims—noise, light, vibration, odor—which can be quantified, the propriety of one neighbor's aesthetic preferences cannot be quantified because those preferences are inherently subjective. The judicial branch is ill-suited to be an arbiter of style or taste, and given the subjectivity of aesthetic preferences, they must remain the province of legislative decision-making in the form of zoning laws and, in specific instances, restrictive covenants that the courts are competent to interpret and apply.

Vermont's rule barring nuisance claims based solely on aesthetics is aligned with the majority rule in this country. We do not accept the landowners' argument that "[g]iven the importance of scenic resources in today's economy, and the development of our jurisprudence, Hager is no longer good law."

We reaffirm the rule from Hager that private nuisance law in Vermont does not encompass a cause of action for aesthetic harm alone.

Action on a judgment not barred by 8-year statute of limitations, because statute was tolled by acknowledgment and partial payment of the debt.

Flex-A-Seal, Inc. v. Safford, 2015 VT 40 (27-Feb-2015)


REIBER, C.J. Plaintiff appeals from the dismissal of its complaint to renew a judgment.. The trial court found the complaint barred by the statute of limitations, 12 V.S.A. § 506. On appeal, Plaintiff argues that:the statute of limitations was tolled by by Defendant’s acknowledgment and partial payment of her debt. We reverse the trial court’s decision.

The statute as amended in 2010, now provides that “[a]ctions on judgments and actions for the renewal or revival of judgments shall be brought by filing a new and independent action on the judgment within eight years after the rendition of the judgment, and not after.” 12 V.S.A. § 506.

In October 2002, the court issued a stipulated judgment order pursuant to the parties’ agreement, granting judgment to Plaintiff against Defendant in the amount of $230,000. After plaintiff later filed a motion for trustee process against earnings, the court in November 2004 issued a stipulated order stating the original judgment amount, the judgment amount with interest as of October 28, 2004, and providing for the suspension of post-judgment interest.

In April 2012, Plainiff filed this action to renew its judgment..The court sua sponte questioned if the action was timely filed. The court ultimately rejected Plaintiff's argument that the relevant final judgment for purposes of 12 V.S.A. § 506 was the 2004 stipulated order rather than the 2002 judgment. The court cited Ayer v. Hemingway, 2013 VT 37, 193 Vt. 610, 73 A.3d 673, where we held a stipulated payment plan was not a new “final judgment” from which a new eight-year statute-of-limitations period began to run. Id. ¶ 18

In light of Ayer v. Hemingway, and Nelson v. Russo, 2008 VT 66, 184 Vt. 550, 956 A.2d 1117 (mem.), the trial court concluded that the common law rule that an acknowledgment of the existence of a debt “has the effect of starting the statute of limitations running anew” no longer applies to judgments. In Nelson, this Court clarified that under 12 V.S.A. § 506, a plaintiff must file a new and independent action to renew a judgment and cannot do so by motion. 2008 VT 66, ¶ 9. The Court reiterated this principle in Ayer, 2013 VT 37, ¶ 15.

Our case law holds that the same tolling rule applicable to contract actions applies to actions on judgment debts,  Olcott v. Scales, 3 Vt. 173, 178 (1831), like the instant case, involved a plaintiff’s attempt to collect a judgment debt. The Olcott court expressly held that in such cases, the acknowledgement of a debt, in terms that admit it to be due, removes the effect of the statute of limitations. 3 Vt. at 178. In Gailer v. Grinnel, 2 Aik. 349, 1828 WL 1161 (1828), the Court similarly held that, in actions of debt on judgment, an acknowledgment of the debt within the statute-of-limitations period removed the statutory bar. Id. at 354 The Court held that:

The defendant’s liability was fixed by the judgment, and as the statute goes upon the presumption of payment after the lapse of eight years, the acknowledgment of the debt within eight years shows that it has not been paid, and thus, by removing the presumption, takes the case out of the statute. The acknowledgment . . . revives the debt ab initio, and the plaintiff recovers, not on the ground of having a new right of action, but that the statute, by reason of the acknowledgment, does not apply to bar the old one.

Id. at 353

Defendant has neither argued nor briefed the question of whether we should overrule Gailer and Olcott in light of the holdings and rationales of Ayer and Nelson. While we note some possible tension among those decisions, we leave to another day, following complete briefing, any consideration of that issue.

As our case law holds that the same tolling rule applicable to contract actions applies to actions on judgment debts, we reverse the court’s decision to dismiss and we remand for further proceedings.

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.

Liability for dog bite is based on negligence.

Martin v. Christman, 2014 VT 55 (13-Jun-2014)

CRAWFORD, J. The single issue raised by this appeal is whether we should change the common-law rule requiring proof of a dog owner’s negligence as the sole basis for liability for personal injuries inflicted by the dog. In the face of longstanding precedent, both in Vermont and in the United States in general, we decline to change the substantive law by judicial decision.

The trial court granted defendants’ motion to dismiss the strict liability claim on the ground that Vermont precedent has long required proof of negligence to recover against a dog owner for damages caused by his or her dog. Godeau v. Blood, 52 Vt. 251 (1880). See Hillier v. Noble, 142 Vt. 552, 556, 458 A.2d 1101, 1104 (1983); Carr v. Case, 135 Vt. 524, 525, 380 A.2d 91, 93 (1977); Davis v. Bedell, 123 Vt. 441, 442-43, 194 A.2d 67, 68 (1963); Worthen v. Love, 60 Vt. 285, 286, 14 A. 461, 461 (1888).

In limiting recovery to cases of negligence, the dog-bite cases fall within the normal parameters of our tort law. O. Holmes, Jr., The Common Law 163 (Little, Brown & Co. 1946) (1881)(“ the defendant must have had at least a fair chance of avoiding the infliction of harm before he becomes answerable for such a consequence of his conduct.”)

These principles are generally followed in the United States. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 23 (2010). The overwhelming majority of those states that have adopted strict liability for dog bites have done so only by statute.

We see no reason to single out dog ownership for treatment that is different from that we apply to other human pursuits. If a change were warranted, it should be left to the Legislature. We are not prepared to depart from long-held principles of negligence to create a new field of strict liability.

Affirmed.

SCOVT note on strict liability at common law in Vermont. 

The Court today reaffirms its early rejection of strict liability in dog bite cases, noting that “With the exception of ultra-hazardous activities such as blasting and keeping dangerous animals, there is no liability without a breach of a duty of care based on the defendant’s conduct.” Martin v. Christman, 2014 VT 55, ¶ 10. 

The doctrine of strict liability for abnormally dangerous conditions and activities is a comparatively recent one in the law. See Bosley v. Central Vermont Public Service Corp., 127 Vt. 581, 582-85, 255 A.2d 671, 672-74 (1969). In Vermont the only recognized application of the doctrine involves blasting.

Here is a brief history.

The doctrine of absolute liability was jettisoned in Vermont as early as 1833 in the case of Lapham v. Curtis, 5 Vt. 371.

In Goupiel v. Grand Trunk Ry. Co., 94 Vt. 337, 343, 111 A. 346, a case involving a railroad torpedo, the Vermont Court rejected strict liability as a general doctrine.

Goupiel was recognized as good law as late as 1958, in Thompson v. Green Mtn. Power Corp., 120 Vt. 478, 482, 144 A.2d 786 (1958), a case involving dynamite and chickens. The Court said that the doctrine of absolute liability has not been accepted in this jurisdiction, citing Goupiel v. Grand Trunk R. Co., supra, 94 Vt. at page 343, 111 A. at page 348.

In Malloy v. Lane Construction Corporation, 123 Vt. 500, 194 A.2d 398 (1963) the Court overruled Goupiel v. Grand Truck Ry. Co., and adopted the doctrine of absolute liability in its application to the blasting operations. There “The shock waves of a blasting operation, travelling through air and ground, damaged the plaintiffs' dwelling house, according to their writ. The defendant construction company is named as the responsible agency, but its acts are not condemned as wrongful or negligent.” 194 A2d at 398-99. The Court accepted plaintiff’s’ argument that they ought not to be barred from recovery for their damage because there were no reasonable measures, short of abandoning the operation, that would have prevented injury to their property.

Surveying law elsewhere the Court said, “The use of dangerous explosives has been particularly subject to rules imposing strict liability….Negligence need not be demonstrated, but only the use of explosives and resulting damage.”

Malloy is the high water mark for Rylands v. Fletcher in Vermont.

In 1969 the Court expressly refused to extend the doctrine of strict or absolute liability, as recognized in Malloy, to accidents involving the transmission of electricity. Bosley v. Central Vermont Public Service Corp., 127 Vt. 581, 582-85, 255 A.2d 671, 672-74 (1969) .

In 1990 the Court also refused to extend the doctrine to public railroad crossings.Mobbs v. Cent. Vt. Ry., 155 Vt. 210, 218, 583 A.2d 566, 571 (1990).

In 2000 a case involve the escape of electicity from transmission lines came before the Court on a products liability theory. Darling v. Central Vt. Pub. Serv. Corp., 171 Vt. 565, 567, 762 A.2d 826, 828 (2000) Because the utility did not sell the electricity that allegedly caused the fire in this case, the Court held the doctrine of strict product liability did not apply. The issue of ultra-hazardous activities was not before the Court.

In Bosley  the Court explained that strict liability has been confined to things or activities which are "extraordinary", or "exceptional", or "abnormal". (citing Prosser on Torts, 3rd Ed. Strict Liability, section 77, page 520. ) The Court noted the Restatement of Torts, section 519, 520 accepts the principle of Rylands v. Fletcher, 3 Hurl & C 744 (1865), but has limited it to an "ultra-hazardous activity", defined as one which "necessarily involves a risk of serious harm to the person, land or chattels of others which cannot be eliminated by the exercise of the utmost care" and "is not a matter of common usage."

~ Zphx