Zukatis v. Perry

Annotate this Case
Zukatis v. Perry  (94-593); 165 Vt 298; 682 A.2d 964

[Opinion Filed 12-Jul-1996]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                           No. 94-593


Cory J. Zukatis, b/n/f Sheri E.              Supreme Court
Zukatis, Sheri E. Zukatis and
Michael Zukatis                              On Appeal from
                                             Windham Superior Court
     v.
                                             March Term, 1996
Michael G. Perry


Richard W. Norton, J.

       Thomas W. Costello, John C. Mabie and Joel T. Faxon of Thomas W.
  Costello, P.C., Brattleboro, for plaintiffs-appellants

       Robert G. Cain and William D. Riley of Paul, Frank & Collins, Inc.,
  Burlington, for  defendant-appellee

       Todd S. Brilliant and Stephen S. Ostrach, New England Legal
  Foundation, Boston, Massachusetts, for amici curiae Vermont Farm Bureau and
  Vermont Horse Council


       PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


       MORSE, J.   Plaintiffs appeal from summary judgment granted to
  defendant under V.R.C.P. 56(b) on counts of negligence and "negligent
  undertaking," and from dismissal under V.R.C.P. 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., __ Vt. __, __,
  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, Sherri 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 attractive
  nuisance doctrine as set forth in the Restatement (Second) of Torts § 339
  (1965).(FN1)

 

       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., __ Vt. __, __, 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. at 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 assumption that the fence
  should have been "child proof."  When questioned at oral argument, however,
  plaintiff declined to say what defendant should have reasonably done under
  the circumstances in order to perform his duty of care.  Nothing in the
  facts alleged indicates that defendant's failure to activate the electric
  wires was unreasonable or that the potential for young children to enter
  harm's way was substantial enough to warrant "child proofing" the pasture.

       The standard of care for the conduct at issue in this case has been
  variously described.  As a general rule:

       "the keeper of a domestic [animal] is not liable for injuries to
      persons and property unless the owner had some reason to know the animal
      was a probable source of danger."  Stated another way, liability attaches
      only when "the [animal]'s past behavior has been such as to require a
      person of reasonable prudence to foresee harm to the person or property of
      others."

  Hillier, 142 Vt. at 556, 458 A.2d  at 1104 (citations omitted) (Davis v.
  Bedell, 123 Vt. 441, 442-43, 194 A.2d 67, 68 (1963)); see also Jividen v.
  Law, 461 S.E.2d 451, 457-58 (W.Va. 1995) (liability for harm caused by
  animal will not attach unless injured party can show, based on animal's
  past behavior and characteristics, that injury could reasonably and
  foreseeably have been anticipated).  Here, it is undisputed that
  defendant's horse was not aggressive.  It is also undisputed that the fence
  was in good repair and effectively restrained the horse.  No facts are
  alleged that would have allowed a jury to concluded that defendant failed
  to exercise reasonable care in controlling his horse.  See Hillier, 142 Vt.
  at 557, 458 A.2d  at 1104.  Defendant breached no duty to Cory and thus
  cannot be found liable under either a traditional negligence theory or the
  attractive nuisance doctrine. 

 

                                        III.

       Plaintiffs next argue that erection and maintenance of the electric
  fence constituted an undertaking under § 324A of the Restatement (Second)
  of Torts (1965)(FN2) and that defendant's failure to activate the electric
  current in the fence on the day Cory was injured constitutes a negligent
  performance of the undertaking.  Plaintiffs correctly assert that Vermont
  has recognized this cause of action.  Derosia v. Liberty Mut. Ins. Co., 155
  Vt. 178, 182, 583 A.2d 881, 883 (1990).   Our reasoning on the attractive
  nuisance issue disposes of this claim as well, but we agree with the trial
  court that the undertaking doctrine is inapplicable to the facts of this
  case.   

       The tort plaintiffs cite applies only where a defendant has undertaken
  to render services to another party.  See id. at 183, 583 A.2d  at 884
  (plaintiff presented sufficient evidence to allow jury to conclude that
  defendant undertook to perform inspection for third party).  Here, there is
  no evidence that defendant, by erecting a fence to enclose his horse
  pasture, undertook to render services to anyone other than himself.     

 

       The Derosia case on which plaintiffs rely is inapposite.  There the
  plaintiff had been injured while operating a table saw that did not have a
  safety guard.  The record showed that the defendant, a workers'
  compensation insurer, had conducted safety inspections for the plaintiff's
  employer.  Thus, in Derosia there was evidence of an undertaking -- the
  performance of the inspections for the employer.  Plaintiffs can point to
  nothing comparable in the case at bar.

       Affirmed.

                              FOR THE COURT:
                              
                              ____________________________
                              Associate Justice



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                                  Footnotes


FN1.  §339  Artificial Conditions Highly Dangerous to Trespassing
  Children A possessor of land is subject to liability for physical harm to
  children trespassing thereon caused by an artificial condition upon the
  land if

  (a)  the place where the condition exists is one upon which the
  possessor knows or has reason to know that children are
  likely to trespass, and

  (b)  the condition is one of which the possessor knows or has reason
  to know and which he realizes or should realize will involve an
  unreasonable risk of death or serious bodily harm to such children, and

  (c)  the children, because of their youth do not discover the
  condition or realize the risk involved in intermeddling with it or in
  coming within the area made dangerous by it, and

  (d)  the utility to the possessor of maintaining the condition and the
  burden of eliminating the danger are slight as compared with the risk to
  children involved, and

  (e)  the possessor fails to exercise reasonable care to eliminate the
  danger or otherwise to protect the children.

  Restatement (Second) of Torts § 339 (1965).

FN2. §324A Liability to Third Persons for Negligent Performance of
  Undertaking

  One who undertakes, gratuitously or for consideration, to render
  services to another which he should recognize as necessary for the
  protection of a third person for his things, is subject to liability to the
  third person for physical harm resulting from his failure to exercise
  reasonable care to protect his undertaking, if

  (a)  his failure to exercise reasonable care increases the risk of
  such harm, or 

  (b)  he has undertaken to perform a duty owed by the other to the
  third person, or

  (c)  the harm is suffered because of reliance if the other or the
  third person upon the undertaking. 

  Restatement (Second) of Torts § 324A (1965).


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                                 Dissenting


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 No. 94-593


Cory J. Zukatis, b/n/f Sheri E.                   Supreme Court
Zukatis, Sheri E. Zukatis and
Michael Zukatis                                   On Appeal from
                                                  Windham Superior Court
     v.
                                                  March Term, 1996
Michael G. Perry


Richard W. Norton, J.

       Thomas W. Costello, John C. Mabie and Joel T. Faxon of Thomas W.
  Costello, P.C., Brattleboro, for plaintiffs-appellants

       Robert G. Cain and William D. Riley of Paul, Frank & Collins, Inc.,
  Burlington, for defendant-appellee

       Todd S. Brilliant and Stephen S. Ostrach, New England Legal
  Foundation, Boston, Massachusetts, for amici curiae Vermont Farm Bureau and
  Vermont Horse Council


PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.



       DOOLEY, J., dissenting.  The majority, like the trial court, has
  struck too soon, faulting plaintiffs for failing to "come forward with . .
  . facts from which a jury could reasonably infer a breach of . . . duty"
  while affirming a dismissal that prevented any factual showing. 
  Accordingly, I dissent from parts I and II of the majority opinion.

       Plaintiff's complaint charged that the horse and pen were an
  attractive nuisance to the small child and it was foreseeable that the
  child would enter the pen, which was possible because the fence was not
  electrified.  It further charged that in the confined area of the pen, "the
  horse was spooked and trampled plaintiff Cory."  Defendant immediately
  moved to dismiss, arguing that Cory Zukatis was a trespasser and defendant
  owed no duty to a trespasser.  With no factual development, the court
  dismissed the attractive nuisance count with the following order:

 


        Count I of the Complaint asserts a claim entitled "attractive
        nuisance."  The doctrine of attractive nuisance is not recognized
        in Vermont.  Trudo v. Lazarus, 116 Vt. 221, 223 (1950).

  It went on, over a year later, to dismiss the remaining counts on a motion
  for summary judgment.  That order did not revisit the attractive nuisance
  ruling or cite any facts that would have been relevant to such a ruling. 
  None of the facts, or absence of claims or facts, cited in the majority
  opinion appear anywhere in the trial court rulings.

       In my opinion, our law on landowner liability is in serious need of
  reexamination.  We have failed to do so because the parties have not
  briefed or argued alternative theories, either here or in the trial court. 
  See Buzzell v. Jones, 151 Vt. 4, 7, 556 A.2d 106, 109 (1989).  Here, the
  parties have focused on part of that reexamination, whether to allow
  liability for damages caused by artificial conditions highly dangerous to
  trespassing children, as endorsed by Restatement (Second) of Torts § 339
  (1965).  I am inclined to follow the Restatement rule, although I prefer
  that any attractive nuisance rule be placed in the broader context of
  reconsidered policies on landowner liability generally.

       We have been consistent that a motion to dismiss for failure to state
  a claim may not be granted "unless it appears beyond doubt that there exist
  no circumstances or facts which the plaintiff could prove about the claim
  made in his complaint which would entitle him to relief." Levinsky v.
  Diamond, 140 Vt. 595, 600-01, 442 A.2d 1277, 1280-81 (1982).  We have
  emphasized that "[a] court should be `especially reluctant to dismiss' a
  cause of action on the basis of the pleadings when the theory of liability
  is novel."  In re A.G., 151 Vt. 167, 169, 559 A.2d 656, 657 (1989) (quoting
  Association of Haystack Property Owners, Inc. v. Sprague, 145 Vt. 443, 447,
  494 A.2d 122, 125 (1985)).

       I cannot find the proper standard for judging a Rule 12(b)(6) motion
  reflected anywhere in the majority opinion.  Instead of considering what
  plaintiffs might be able to prove in support of their brief complaint, and
  showing reluctance to rule on a novel theory without factual development,
  the majority relies on facts not stated in the complaint and faults
  plaintiffs for

 

  failing to make contrary and specific factual allegations.  It concludes
  from this that the horse "was not aggressive," that "the fence was in good
  repair and effectively restrained the horse," that the "failure to activate
  the electric wires was [not] unreasonable," and that "the potential for
  young children to enter harm's way was [not] substantial enough to warrant
  `child proofing' the pasture."  If we look at the complaint in the way our
  decisions specify, we must conclude that it is entirely possible that
  plaintiffs could prove that the electric charge would have kept the child
  out of the horse pen without injuring him and that the horse pen was such a
  small, confined area that there was an unreasonable risk that a horse,
  spooked by an intruder and unable to avoid contact, would react by
  trampling the intruder.  Plaintiffs are clearly entitled to make this kind
  of showing.

       The majority holds that "summary judgment should have been granted on
  all three counts of plaintiffs' complaint."  That statement might
  ultimately prove correct, but plaintiffs are entitled to have summary
  judgment granted on a motion for that relief and not a motion to dismiss. 
  Meanwhile, this Court should face and decide the question of law presented
  by the trial court.

       I dissent.





                              _______________________________________
                              Associate Justice