ZUKATIS BY ZUKATIS v. Perry

682 A.2d 964, 165 Vt. 298, 1996 Vt. LEXIS 68
CourtSupreme Court of Vermont
DecidedJuly 12, 1996
Docket94-593
StatusPublished
Cited by30 cases

This text of 682 A.2d 964 (ZUKATIS BY ZUKATIS v. Perry) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ZUKATIS BY ZUKATIS v. Perry, 682 A.2d 964, 165 Vt. 298, 1996 Vt. LEXIS 68 (Vt. 1996).

Opinions

Morse, J.

Plaintiffs appeal from summary judgment granted to defendant under V.R.C.P 56(b) on counts of negligence and “negli[300]*300gent undertaking,” and from dismissal under V.R.C.E 12(b)(6) of a claim of “attractive nuisance.” They argue that the trial court erred in concluding that (1) a landowner owes no duty of care to a trespassing child, and (2) that the facts did not support a claim of negligent undertaking.

As noted above, the trial court dismissed the claim of attractive nuisance on the pleadings but granted summary judgment on the counts of negligence and negligent undertaking. Summary judgment is appropriate only where, taking the allegations made by the nonmoving party as true, there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Ross v. Times Mirror, Inc., 164 Vt. 13, 17-18, 665 A.2d 580, 582 (1995). The standard presupposes that the nonmoving party has had the opportunity to develop his factual case, as plaintiffs did here. We hold that summary judgment should have been granted on all three counts of plaintiffs’ complaint, and affirm.

On April 24, 1993, Sheri Zukatis and her three-year-old son Cory were visiting Nora Ellis at Ellis’s residence on Pond Road in Vernon, Vermont. At approximately one p.m., Cory and Ellis’s son Coleman, accompanied by their mothers, went outside. While the boys played on swings, Ellis’s father demonstrated a new video camera for the women. By the time Zukatis looked back toward the boys, Cory was gone. Cory had apparently wandered onto the adjoining property, which belonged to defendant Michael Perry, and crawled through a fence into Perry’s horse pasture. Perry’s horse, which had not been considered an aggressive animal, kicked and injured Cory.

The horse pasture was fully enclosed by a fence consisting of two strands of wire supported by metal stakes. Though capable of conducting electricity, the wire was not activated that day. Neither Zukatis nor Cory was given permission to enter Perry’s land. Coleman Ellis had apparently been specifically forbidden to enter the Perry property after a prior, and never repeated, incident in which he had trespassed. There was no evidence that any other children had ever trespassed on the Perry property.

I.

The trial court dismissed the claim of attractive nuisance on the pleadings on the basis that the attractive nuisance doctrine is not recognized in Vermont. Trudo v. Lazarus, 116 Vt. 221, 223, 73 A.2d 306, 307 (1950). Plaintiffs urge us to overrule Trudo and adopt the [301]*301attractive nuisance doctrine as set forth in the Restatement (Second) of Torts § 339 (1965).1

The attractive nuisance doctrine is merely a detailed articulation of ordinary negligence. See id. cmt. o. (liability covered by section is liability for negligence). Under the doctrine, a trespassing child is not entitled to a heightened standard of care, but rather, is afforded the protection of the ordinary negligence doctrine. W Keeton, et al., Prosser & Keeton on the Law of Torts § 59, at 401-02 (5th ed. 1984) (attractive nuisance doctrine gives child trespasser protection of ordinary negligence doctrine); W. Prosser, Trespassing Children, 47 Cal. L. Rev. 427, 432 (1959) (“child trespasser law is merely ordinary negligence law”). Thus where a party is not negligent, he cannot be found liable on an attractive nuisance theory. The attractive nuisance is simply one factor to be taken into account with others in determining defendant’s negligence.

Common law negligence has four elements: a legal duty owed by defendant to plaintiff, a breach of that duty, actual injury to the plaintiff, and a causal link between the breach and the injury. O’Connell v. Killington, Ltd., 164 Vt. 73, 76, 665 A.2d 39, 42 (1995). We have held that a landowner generally owes no duty of care to a trespasser, whether adult or child. Buzzell v. Jones, 151 Vt. 4, 6, 556 A.2d 106, 108 (1989); Hillier v. Noble, 142 Vt. 552, 556, 458 A.2d 1101, 1103 (1983). We have not seriously reexamined the “no-duty-to-trespassers” doctrine, putting it off to another day in Buzzell. 151 Vt. [302]*302at 7, 556 A.2d at 109 (although other jurisdictions have modified traditional distinctions in duties of care owed to persons entering land, where parties did not brief issue, court will decline to address it). The attractive nuisance doctrine creates an exception to the “no-duty-to-trespassers” rule. It “forthrightly recognize[s] the status of the child as a trespasser, but [] impose[s] a duty upon the landowner under carefully limited circumstances.” Jones v. Billings, 289 A.2d 39, 42 (Me. 1972); see also Annotation, Animals as Attractive Nuisance, 64 A.L.R.3d 1069, 1073 (1975) (attractive nuisance doctrine is exception to rule that owner of premises is under no obligation to keep it in safe condition for trespassers). Plaintiffs evidently believe that recognition of this duty will enable them to proceed with their claims, and therefore urge us to adopt the doctrine. We need not address the issue today, however, because even if defendant owed such a duty of care to Cory, plaintiffs have come forward with no facts from which a jury could reasonably infer a breach of that duty.

II.

As Professor Prosser once so delicately put it:

Children, as is well known to anyone who has ever been a child, are by nature unreliable and irresponsible people, who are quite likely to do almost anything. In particular, they have a deplorable tendency to stray upon land which does not belong to them, and to meddle with what they find there. In the process they not infrequently get hurt.

Prosser, supra, at 427. For the purposes of this analysis, we assume the existence of a duty of reasonable care to protect a trespassing child. The question remains, what is the scope of that duty? See Dunning v. Kerzner, 910 F.2d 1009, 1013 (1st Cir. 1990) (general standard of care is matter of law for determination by court); Mignone v. Fieldcrest Mills, 556 A.2d 35, 37 (R.I.1989) (existence and extent of duty of care are questions of law). Simply put, defendant can be found liable only if he has failed to take steps that a reasonable person would take under like circumstances.

All of plaintiffs’ claims are grounded on the fact that defendant’s fence failed to keep the child out of the pasture. There is no suggestion that it was unreasonable for defendant to have had a horse on his premises at all. Plaintiffs assert that the electric fence should have been activated, though they concede that an electric charge might have injured the child. Their position evidently rests on an [303]

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Bluebook (online)
682 A.2d 964, 165 Vt. 298, 1996 Vt. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zukatis-by-zukatis-v-perry-vt-1996.