Background
In May 2013, then-twelve-year-old Ian Treadway and two friends were playing on footpaths near Green Mountain Power Corporation’s South Street Substation in Springfield, Vermont. Despite an eight-foot chain-link fence topped with barbed wire, a padlocked gate, six warning signs reading “DANGER” and “HIGH VOLTAGE KEEP OUT,” and an audible electrical hum, Treadway entered the substation. He briefly explored a shed, then announced to his friends that he would climb a large metal lattice tower supporting electrical equipment. His friends warned him, with one declaring, “I’m going to laugh at you when you get electrocuted.” While his friends walked away, Treadway climbed the tower and came into contact with or approached close enough to electrified equipment for electricity to arc to him. The resulting contact ignited his clothes, causing severe burns.
Treadway filed suit in 2021 (timely under Vermont’s minority statute of limitations) alleging negligence against GMP. The defendant moved for summary judgment, and both parties agreed that Treadway was a trespasser and that Vermont common law generally precludes landowner liability to trespassers absent willful or wanton misconduct. However, Treadway argued that the Vermont Supreme Court should adopt the attractive-nuisance doctrine from Restatement (Second) of Torts § 339 (1965), which would impose a duty on landowners to child trespassers in certain circumstances. The trial court granted summary judgment, and Treadway appealed.
The attractive-nuisance doctrine would create an exception to the no-duty-to-trespassers rule for children by imposing a duty when: (a) the landowner knows children are likely to trespass; (b) the condition poses an unreasonable risk of death or serious bodily harm; (c) the children cannot appreciate the risk; (d) the burden to eliminate the danger is slight compared to the risk; and (e) the landowner fails to exercise reasonable care to protect the children.
The Court’s Holding
The Vermont Supreme Court affirmed the trial court’s judgment and declined to adopt the attractive-nuisance doctrine. The court held that Vermont law has firmly established for over 115 years that landowners owe no duty of care to trespassers—whether adult or child—except to avoid willful or wanton misconduct. The court noted that it had explicitly rejected the attractive-nuisance doctrine in multiple prior decisions: in Hawks (1911), Trudo (1950), Zukatis (1996), and Baisley (1998). The court rejected plaintiff’s argument that those decisions had not explicitly addressed the specific Restatement (Second) formulation, finding that interpretation inconsistent with precedent.
The court applied Vermont’s established standard for overruling precedent: change is only appropriate when Vermont’s evolving “circumstances and experiences” create “plain justification.” The court found no such justification here. Plaintiff’s reliance on the fact that most other states have adopted the attractive-nuisance doctrine was rejected as misguided; the court emphasized that the relevant inquiry must focus on Vermont community standards specifically, not national trends. The court further noted that overturning this rule could drastically alter Vermont’s carefully balanced legislative scheme encouraging public access to private land through statutes like the Recreational Use Statute and trail system laws, which depend on limiting landowner liability. The court concluded this was fundamentally a matter for the Legislature, not the courts.
The court acknowledged that other states recognize policy reasons to protect children from dangerous conditions, but found competing policy considerations controlling, including the need for certainty in landowner liability law and the Legislature’s deliberate balance between public recreational access and landowner immunity. The court noted that local ordinances in Vermont already address attractive nuisances separately, suggesting additional protections exist outside the common law framework.
Key Takeaways
- Vermont maintains its 115-year-old rule that landowners owe no duty of care to trespassers, absent willful or wanton conduct, even when the trespasser is a child.
- The court declined to adopt the attractive-nuisance doctrine despite its majority adoption in other jurisdictions, finding that such decisions must be grounded in Vermont-specific community standards, not national trends.
- Judicial overruling of longstanding precedent requires “plain justification” from a state’s own circumstances; the mere fact that most states have adopted a different rule is insufficient.
- Statutory schemes encouraging public access to private land (like Vermont’s Recreational Use Statute and trail systems) depend on limiting landowner liability and cannot be modified judicially without risking unintended legislative consequences.
- Questions of competing public policy involving significant economic or regulatory implications are best resolved by the Legislature, not the courts, particularly where the court has created stability and predictability over more than a century.
Why It Matters
This decision provides important clarity for Vermont property owners regarding their liability exposure to trespassers, including child trespassers who suffer injury on dangerous premises. It signals that landowners need not undertake expensive safety measures specifically to protect unauthorized entrants, allowing them to maintain their property according to their own interests without fear of liability for ordinary negligence (though they must avoid deliberately harming trespassers). The ruling also protects Vermont’s public-access policy infrastructure: the Recreational Use Statute explicitly encourages landowners to open property for recreational use by limiting their liability, and this decision preserves that incentive structure.
Conversely, the decision leaves the question open for legislative resolution if policymakers conclude children warrant greater protection. Several Vermont municipalities already address attractive nuisances through local ordinance, demonstrating an alternative regulatory path. The opinion emphasizes Vermont courts’ institutional modesty: major shifts in common law affecting property rights and public access should originate in the Legislature, where competing interests can be weighed and statutory schemes can be coordinated. For practitioners, this reaffirms that Vermont’s common-law position on trespasser liability remains settled law absent legislative action.