Francoeur v. Allen, No. 95-3-04 Bncv (Carroll, J., Dec. 6, 2004)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT BENNINGTON COUNTY, ss.
AMANDA FRANCOEUR, a minor, ) and MICHELLE FRANCOEUR, her ) guardian and next friend, ) Plaintiffs, ) BENNINGTON SUPERIOR COURT ) DOCKET NO. 95-3-04 Bncv v. ) ) RAYMOND ALLEN and ) DOROTHY ALLEN, ) Defendants. )
ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff Amanda Francoeur (Francoeur), through her mother and next friend Michelle
Francoeur sues Defendants Raymond and Dorothy Allen (Allens) for negligence as a result of
dog bites suffered by Francoeur at the Allens’ residence in Bennington.
The Allens have moved the Court for summary judgment, arguing that at the time of the
dog bite, Francoeur was a trespasser to whom no legal duty was owed and that no dispute exists
as to that status. Therefore, the Allens argue that summary judgment is appropriate as a matter
of law. For the reasons that follow, Defendants’ Motion for Summary Judgment is GRANTED.
Standard for Summary Judgment
Summary Judgment under V.R.C.P. 56 is appropriate when there is “no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” V.R.C.P. 56
(c)(3). When reviewing a motion for summary judgment, the Court will afford the non-moving
party “all reasonable doubts and inferences” based upon the facts presented. Samplid
Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996) (citing Pierce v. Riggs, 149 Vt.
136, 139 (1987)). In the event that the non-moving party opposes the moving party’s motion,
“[a]llegations to the contrary must be supported by specific facts sufficient to create a genuine
issue of material fact.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986)).
Background
On the evening of June 21, 2003, the Allens’ daughter, Kristy Osgood who was
accompanied by Amanda Francoeur, stopped by the Allens’ home to use the bathroom and speak
with her mother. Osgood is Dorothy Allen’s daughter and Raymond Allen’s stepdaughter. The
Allens were unaware that Osgood planned to visit, and were not home when Osgood and
Francoeur arrived. Plaintiff Amanda Francoeur is Osgood’s friend and neighbor who
occasionally looked after Osgood’s young child. Francoeur accompanied Osgood in her vehicle
as the two drove around on June 21, 2003, following an argument between Osgood and her
fiancé.
On June 21, 2003, Osgood was a nineteen year old adult woman and lived at another
residence in the area with her children and fiancé. She had not lived with her parents since she
was sixteen. The deposition testimony of Dorothy Allen, Raymond Allen, and Kristy Osgood
reflects an understanding among the three that Osgood (or any of the Allens’ other children) was
not to enter her parents’ property when they were not present. (See Osgood Dep., at 18, 63;
2 Raymond Allen Dep., at 5; Dorothy Allen Dep., at 39-40, 42.)
Osgood testified in her deposition that on June 21, 2003, when she arrived at her parents’
house, she believed that her parents were not home and told Francoeur to remain in her vehicle
while she used the bathroom. (Osgood Dep., at 18.)
Francoeur testified in her deposition that Raymond Allen had never given her his
permission to enter the Allens’ property. (Francoeur Dep., at 25.) However, Francoeur testified
that Osgood invited her into the house when they arrived, and thus the parties’ deposition
testimony is in conflict with respect to whether or not Osgood invited Francoeur into the house
on June 21, 2003. Prior to June 21, 2003 Dorothy Allen had met Francoeur on one occasion at
Osgood’s home, however Raymond Allen had never met Francoeur. (Raymond Allen Dep., at
18.) Neither Dorothy nor Raymond Allen gave Francoeur permission to enter their property on
June 21, 2003. (Raymond Allen Dep., at 5; Dorothy Allen Dep., at 39-40.)
Despite the disparity between Osgood’s and Francoeur’s deposition testimony, at some
point before her entry into the house, Francoeur was knocked down and bitten by the Allens’
dogs after they ran through the front door from within the house. The dogs exited the house as
the front door was opened (either by Osgood or Francoeur), knocked Francoeur down, and
proceeded to bite her until Osgood restrained them. Francoeur was on the Allens’ front porch at
the time she was bitten.
Discussion
The undisputed facts lead the Court to conclude that Francoeur was a trespasser at the
Allens’ residence on June 21, 2003. A trespasser is “one who ‘enters or remains upon land in the
possession of another without a privilege to do so created by the possessor’s consent or
3 otherwise.’” Farnham v. Inland Sea Resort Properties, Inc., 175 Vt. 500, 502 (2003) (mem.)
(quoting Restatement (Second) of Torts § 329 (1965)). Consent given by a possessor of land
may be conditional or restricted in scope.1 See Hillier v. Noble, 142 Vt. 552, 557-58 (1983) (by
entering land for purpose different from that for which consent was expressly given, invitee
exceeded scope of consent and became a trespasser to whom no duty was owed); 75 Am. Jur. 2d
Trespass § 89 (1991) (“consent given by a possessor of land to the actor’s presence on the land
during a specified period of time does not create a privilege to enter or remain on the land at any
other time”).
Moreover, a reasonable mistake of law or fact is no defense to trespass, 75 Am. Jur. 2d
Trespass §§ 11, 83, nor is infancy, id. § 77, nor authorization from one who could not lawfully
give such authorization. Id. § 75. In essence, trespass is viewed objectively from the land
1 Francoeur also argues that the cases cited by the Allens are “inapplicable,” attempting to
distinguish Hillier v. Noble on its facts by stating that “Plaintiff did not enter the Defendants’
property to retrieve a ball or otherwise trespass.” (Pl.’s Response to Def.’s Mot. for Summ. J., at
4.) However, Francoeur misses the import of Hillier’s guidance. Hillier illustrates the concept
of a limited scope of consent, an issue at the fore of this case. See Hillier, 142 Vt. at 557-58
(“[a]n invitation to come upon premises for one purpose does not justify or invite entry for any
and all other purposes.”). Francoeur restates this concept by noting that Dorothy Allen “claims
that Kristy [Osgood] did not have permission to be in her house if she wasn’t there but
apparently it was no problem if the parents were home.” (Pl.’s Response to Def.’s Mot. for
Summ. J., at 3.) This is precisely the nature of conditional or restricted consent.
4 owner’s vantage point, and invitee or licensee status is created by consent from the actual
possessor of the land. See Hillier, 142 Vt. at 557 (property owner “has the right to make an
invitation as broad or as limited as he sees fit”). Here, it is undisputed that Francoeur was not
given permission by the Allens to enter their property on June 21, 2003. (Francoeur Dep., at 25;
Raymond Allen Dep., at 5; Dorothy Allen Dep., at 39-40, 42.)
In Vermont, “an owner or occupant is under no obligation to a trespasser, whether adult
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Francoeur v. Allen, No. 95-3-04 Bncv (Carroll, J., Dec. 6, 2004)
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT BENNINGTON COUNTY, ss.
AMANDA FRANCOEUR, a minor, ) and MICHELLE FRANCOEUR, her ) guardian and next friend, ) Plaintiffs, ) BENNINGTON SUPERIOR COURT ) DOCKET NO. 95-3-04 Bncv v. ) ) RAYMOND ALLEN and ) DOROTHY ALLEN, ) Defendants. )
ORDER ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Plaintiff Amanda Francoeur (Francoeur), through her mother and next friend Michelle
Francoeur sues Defendants Raymond and Dorothy Allen (Allens) for negligence as a result of
dog bites suffered by Francoeur at the Allens’ residence in Bennington.
The Allens have moved the Court for summary judgment, arguing that at the time of the
dog bite, Francoeur was a trespasser to whom no legal duty was owed and that no dispute exists
as to that status. Therefore, the Allens argue that summary judgment is appropriate as a matter
of law. For the reasons that follow, Defendants’ Motion for Summary Judgment is GRANTED.
Standard for Summary Judgment
Summary Judgment under V.R.C.P. 56 is appropriate when there is “no genuine issue as to any material fact and that any party is entitled to judgment as a matter of law.” V.R.C.P. 56
(c)(3). When reviewing a motion for summary judgment, the Court will afford the non-moving
party “all reasonable doubts and inferences” based upon the facts presented. Samplid
Enterprises, Inc. v. First Vermont Bank, 165 Vt. 22, 25 (1996) (citing Pierce v. Riggs, 149 Vt.
136, 139 (1987)). In the event that the non-moving party opposes the moving party’s motion,
“[a]llegations to the contrary must be supported by specific facts sufficient to create a genuine
issue of material fact.” Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50
(1986)).
Background
On the evening of June 21, 2003, the Allens’ daughter, Kristy Osgood who was
accompanied by Amanda Francoeur, stopped by the Allens’ home to use the bathroom and speak
with her mother. Osgood is Dorothy Allen’s daughter and Raymond Allen’s stepdaughter. The
Allens were unaware that Osgood planned to visit, and were not home when Osgood and
Francoeur arrived. Plaintiff Amanda Francoeur is Osgood’s friend and neighbor who
occasionally looked after Osgood’s young child. Francoeur accompanied Osgood in her vehicle
as the two drove around on June 21, 2003, following an argument between Osgood and her
fiancé.
On June 21, 2003, Osgood was a nineteen year old adult woman and lived at another
residence in the area with her children and fiancé. She had not lived with her parents since she
was sixteen. The deposition testimony of Dorothy Allen, Raymond Allen, and Kristy Osgood
reflects an understanding among the three that Osgood (or any of the Allens’ other children) was
not to enter her parents’ property when they were not present. (See Osgood Dep., at 18, 63;
2 Raymond Allen Dep., at 5; Dorothy Allen Dep., at 39-40, 42.)
Osgood testified in her deposition that on June 21, 2003, when she arrived at her parents’
house, she believed that her parents were not home and told Francoeur to remain in her vehicle
while she used the bathroom. (Osgood Dep., at 18.)
Francoeur testified in her deposition that Raymond Allen had never given her his
permission to enter the Allens’ property. (Francoeur Dep., at 25.) However, Francoeur testified
that Osgood invited her into the house when they arrived, and thus the parties’ deposition
testimony is in conflict with respect to whether or not Osgood invited Francoeur into the house
on June 21, 2003. Prior to June 21, 2003 Dorothy Allen had met Francoeur on one occasion at
Osgood’s home, however Raymond Allen had never met Francoeur. (Raymond Allen Dep., at
18.) Neither Dorothy nor Raymond Allen gave Francoeur permission to enter their property on
June 21, 2003. (Raymond Allen Dep., at 5; Dorothy Allen Dep., at 39-40.)
Despite the disparity between Osgood’s and Francoeur’s deposition testimony, at some
point before her entry into the house, Francoeur was knocked down and bitten by the Allens’
dogs after they ran through the front door from within the house. The dogs exited the house as
the front door was opened (either by Osgood or Francoeur), knocked Francoeur down, and
proceeded to bite her until Osgood restrained them. Francoeur was on the Allens’ front porch at
the time she was bitten.
Discussion
The undisputed facts lead the Court to conclude that Francoeur was a trespasser at the
Allens’ residence on June 21, 2003. A trespasser is “one who ‘enters or remains upon land in the
possession of another without a privilege to do so created by the possessor’s consent or
3 otherwise.’” Farnham v. Inland Sea Resort Properties, Inc., 175 Vt. 500, 502 (2003) (mem.)
(quoting Restatement (Second) of Torts § 329 (1965)). Consent given by a possessor of land
may be conditional or restricted in scope.1 See Hillier v. Noble, 142 Vt. 552, 557-58 (1983) (by
entering land for purpose different from that for which consent was expressly given, invitee
exceeded scope of consent and became a trespasser to whom no duty was owed); 75 Am. Jur. 2d
Trespass § 89 (1991) (“consent given by a possessor of land to the actor’s presence on the land
during a specified period of time does not create a privilege to enter or remain on the land at any
other time”).
Moreover, a reasonable mistake of law or fact is no defense to trespass, 75 Am. Jur. 2d
Trespass §§ 11, 83, nor is infancy, id. § 77, nor authorization from one who could not lawfully
give such authorization. Id. § 75. In essence, trespass is viewed objectively from the land
1 Francoeur also argues that the cases cited by the Allens are “inapplicable,” attempting to
distinguish Hillier v. Noble on its facts by stating that “Plaintiff did not enter the Defendants’
property to retrieve a ball or otherwise trespass.” (Pl.’s Response to Def.’s Mot. for Summ. J., at
4.) However, Francoeur misses the import of Hillier’s guidance. Hillier illustrates the concept
of a limited scope of consent, an issue at the fore of this case. See Hillier, 142 Vt. at 557-58
(“[a]n invitation to come upon premises for one purpose does not justify or invite entry for any
and all other purposes.”). Francoeur restates this concept by noting that Dorothy Allen “claims
that Kristy [Osgood] did not have permission to be in her house if she wasn’t there but
apparently it was no problem if the parents were home.” (Pl.’s Response to Def.’s Mot. for
Summ. J., at 3.) This is precisely the nature of conditional or restricted consent.
4 owner’s vantage point, and invitee or licensee status is created by consent from the actual
possessor of the land. See Hillier, 142 Vt. at 557 (property owner “has the right to make an
invitation as broad or as limited as he sees fit”). Here, it is undisputed that Francoeur was not
given permission by the Allens to enter their property on June 21, 2003. (Francoeur Dep., at 25;
Raymond Allen Dep., at 5; Dorothy Allen Dep., at 39-40, 42.)
In Vermont, “an owner or occupant is under no obligation to a trespasser, whether adult
or child, to protect him from injury by reason of the unsafe and dangerous conditions of the
premises.” Hillier, 142 Vt. at 556 (quoting Trudo v. Lazarus, 116 Vt. 221, 223 (1950)).
Vermont has not adopted strict liability for injuries caused by dog bites, but rather imposes
liability when the owner of the dog has “some reason to know the animal [is] a probable source
of danger.” Id. (quoting Davis v. Bedell, 123 Vt. 441, 442-43 (1963)). If a dog owner has
reason to know that the animal is dangerous, the owner’s duty to invitees and licensees becomes
one of “reasonable control and restraint” of the animal. Id. at 557 (citing Carr v. Case, 135 Vt.
524, 526 (1977)); Buzzell v. Jones, 151 Vt. 4, 6-7 (1989).2
Francoeur argues that material facts regarding her status as a trespasser remain in dispute.
First Francoeur argues that summary judgment is inappropriate because she was invited to the
Allens’ house by Osgood and thus was not a trespasser. Francoeur argues that “it should be left
2 Although one of the Allens’ dogs had bitten other visitors to the Allens’ home, the Court
need not address whether or not the Allens took reasonable precautions to restrain the animals
and notify visitors of their presence. Because Francoeur was a trespasser, the Allens owed no
duty of care to Francoeur other than not willfully or wantonly causing her injury.
5 to a jury to decide which set of facts it accepts.” (Pl.’s Response to Def.’s Mot. for Summ. J., at
1.) Even were it undisputed that Osgood affirmatively invited Francoeur onto the Allens’
property, Osgood would still have had no authority to consent to Francoeur’s presence as she
was not in possession of the property, nor is there any evidence that she was authorized to give
such consent. See 75 Am. Jur. 2d Trespass § 86 (consent “must be granted by one in possession
. . . or by one . . . authorized to give such consent”); see also id § 83 (for liability in trespass it is
“immaterial whether [one] honestly and reasonably believes that he has the consent of the
possessor or of a third person having power to give consent on his behalf”).
Francoeur’s status on the night she was bitten was in no way elevated by any invitation
Osgood may or may not have made to her because Osgood lacked her parents’ consent to be
present when they were not there. Cf. Robillard v. Tillotson, 118 Vt. 294, 300 (1954) (in
business setting, person invited onto premises by another invitee or licensee on premises has
rights coextensive with invitee or licensee). Therefore, the dispute as to whether Francoeur was
invited inside by Osgood is not material to Francoeur’s status as a trespasser and will not
preclude summary judgment.
Francoeur also argues that it is “clear that the Defendants’ 19 year old daughter had
permission to enter the premises.” (Pl.’s Response to Def.’s Mot. for Summ. J., at 4.)
Francoeur’s bare assertion is not supported by any evidence indicating that Osgood had any more
than conditional or restricted consent to enter her parents’ property. Francoeur asserts that the
“argument that the Defendants did not invite any of their daughter’s friends so therefore her
friends are trespassers” is an issue of “reasonableness” to be considered by a jury. (Id.)
Francoeur is incorrect as she has presented no evidence contravening the testimony of Osgood
6 and the Allens in her opposition to the Allens’ motion. Moreover, the question of whether or not
a property owner gave consent to an individual to enter his or her land is not determined by a
reasonableness inquiry. It is a factual inquiry. Here it is undisputed from the evidence put forth
by the parties that Kristy Osgood had only limited consent to enter her parents’ property when
they were present.
Lastly, whether or not the lights were on in the Allens’ driveway, and whether or not
Francoeur saw the multiple ‘beware of dogs’ signs is immaterial to whether Francoeur was a
trespasser to whom no duty was owed. As a trespasser under the law, the presence or absence of
signs and illumination in no way affects the duty owed by the Allens to Francoeur.
ORDER
For the foregoing reasons, Defendants Raymond and Dorothy Allen’s Motion for
Summary Judgment is GRANTED.
Dated this _____ day of November, 2004, at Bennington, County of Bennington, Vermont.
__________________________ Karen R. Carroll Presiding Judge