Background
In May 2013, twelve-year-old Ian Treadway and two friends were playing near Green Mountain Power’s South Street Substation in Springfield, Vermont. Despite a chain-link fence topped with barbed wire standing over eight feet tall, a padlocked gate, and six “DANGER — HIGH VOLTAGE KEEP OUT” signs mounted along the perimeter, Treadway entered the substation through a gap in the locked gate. After briefly exploring a nearby shed, he announced his intention to climb the metal lattice tower inside the substation. His friends warned him against it — one remarking “I’m going to laugh at you when you get electrocuted” — but Treadway proceeded to climb. He either made contact with electrified equipment or came close enough for electricity to arc, igniting his clothes and causing severe burns.
Treadway filed suit against Green Mountain Power in 2021, after the tolling of Vermont’s statute of limitations during his minority. He alleged negligence, but both parties agreed that under established Vermont common law, a landowner owes no duty of care to a trespasser except to refrain from willful or wanton misconduct — a standard Treadway conceded was not met on these facts. The civil division granted summary judgment to Green Mountain Power. On appeal, Treadway did not challenge the application of existing law; instead, he urged the Vermont Supreme Court to adopt the attractive-nuisance doctrine set out in the Restatement (Second) of Torts § 339 (1965) and remand for trial.
The attractive-nuisance doctrine would impose a duty on landowners toward child trespassers when: the landowner has reason to know children are likely to trespass; an artificial condition poses an unreasonable risk of death or serious injury; children cannot appreciate the risk; the burden of eliminating the danger is slight compared to the risk; and the landowner fails to exercise reasonable care. Treadway argued all five factors were satisfied here.
The Court’s Holding
The Vermont Supreme Court unanimously affirmed the grant of summary judgment and declined to adopt the attractive-nuisance doctrine. Writing for the court, Justice Eaton applied the framework from Demag v. Better Power Equipment, Inc., 2014 VT 78, which requires “plain justification” rooted in Vermont community standards — not merely other states’ practices — before the court will overrule settled precedent. The court found that Vermont’s no-duty-to-trespassers rule, unchanged for over 115 years since Bottum’s Adm’r v. Hawks (1911), represented exactly the kind of certain, stable, and predictable common law that demands deference absent a compelling Vermont-specific reason to change it.
The court rejected Treadway’s primary argument that the majority rule in other jurisdictions constituted sufficient justification. The court emphasized that Demag required examination of Vermont’s own community circumstances and legislative landscape. That examination revealed the opposite of justification for change: Vermont’s Recreational Use Statute (12 V.S.A. §§ 5791–5795) and trail statutes (10 V.S.A. §§ 441–449) were expressly designed to encourage landowners to open private land to the public by capping their duty of care at the trespasser standard. Adopting the attractive-nuisance doctrine judicially could destabilize that deliberate legislative bargain and create unpredictable interactions between the doctrine and the recreational-use immunity framework — a conflict other states with both statutes have resolved inconsistently.
The court also acknowledged, but found insufficient, the public-policy argument that child trespassers deserve heightened protection given their inability to fully appreciate danger. The court noted that numerous Vermont municipalities have enacted local ordinances addressing attractive nuisances for children, and that competing policy considerations — including the burdens on landowners and the integrity of the state’s public-access framework — made any change a matter for the Legislature rather than the judiciary.
Key Takeaways
- Vermont continues to apply its longstanding common-law rule that landowners owe no duty of care to trespassers — adult or child — except to refrain from willful or wanton misconduct, and the attractive-nuisance doctrine remains unrecognized in Vermont.
- To overturn settled Vermont common law, a party must demonstrate “plain justification” grounded in Vermont community standards and circumstances; the fact that a majority of other states have adopted a contrary rule is relevant evidence but not independently sufficient.
- The court signaled that Vermont’s Recreational Use Statute and trail-access statutes — which peg landowner liability to the trespasser standard to encourage public access — create a structural legislative reason to preserve the status quo, and that any doctrinal change should come from the Legislature, not the courts.
- Plaintiff’s concession that the facts did not establish willful or wanton conduct foreclosed all common-law paths to recovery under existing Vermont law, making adoption of the new doctrine the only route to relief — a posture that squarely presented the question the court ultimately declined to answer favorably.
Why It Matters
This decision cements Vermont as one of the few remaining jurisdictions that has expressly and repeatedly declined to adopt the attractive-nuisance doctrine, even as applied to child trespassers injured by inherently dangerous artificial conditions. For landowners, utilities, and insurers operating in Vermont, the ruling preserves a clear liability floor: absent intentional or wanton conduct, there is no duty to protect trespassers from dangerous on-site conditions, regardless of the trespasser’s age or the foreseeability of their presence. This predictability is particularly significant for utilities and industrial operators who maintain hazardous infrastructure across the state.
The court’s framing of the recreational-use and trail-access statutes as affirmative policy reasons to maintain the status quo offers a roadmap for future litigants and legislators alike. The opinion makes clear that if Vermont is to join the majority of states in extending some duty to child trespassers, that change must come through the Legislature — and any legislative reform will need to account carefully for how a newly adopted attractive-nuisance rule would interact with Vermont’s existing immunity framework for recreational landowners.