William Deveneau v. Susan Weilt and Brian Toomey
2016 Vt. LEXIS 28
Vt.2016Background
- In 2008 Wielt leased a house/land from Toomey at 1900 Haiwood Hill; Toomey permitted her to pasture two horses and also permitted her to pasture them on adjacent lot 1952 Haiwood Hill on condition she care for them and maintain fencing.
- Wielt installed a temporary electric fence (two nylon strands on fiberglass posts set shallowly); Toomey drove past the pastures regularly but disavowed any responsibility for the horses or fence and did not inspect or maintain the fence.
- At ~1:00 a.m. plaintiff struck a horse (Wielt’s thoroughbred) on Route 7A, suffering serious injuries; the record showed a down gate and sagging wire but did not establish how the horse escaped or whether the fence was energized at the time.
- Plaintiff sued both Wielt (tenant/keeper) and Toomey (landowner/lessor) for negligence; Toomey moved for summary judgment arguing he owed no duty to prevent escape of the horse.
- The trial court granted summary judgment for Toomey; the Vermont Supreme Court majority affirmed, holding Toomey owed no duty absent involvement in ownership, management, or control of the animal or fence (or knowledge that the activity would unavoidably involve unreasonable risk).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether noncustodial landowner (Toomey) owed duty to motorists for tenant’s escaping horse | Toomey had sufficient control/knowledge of pasturing and fence condition (possession of 1952 lot, proximity, frequent passage) to create duty to third parties | Landowner who does not own or control animal or fence and who disclaimed responsibility owes no duty to prevent tenant’s animal from escaping | Held: No duty. Summary judgment for Toomey affirmed — absent ownership/management/control or knowledge that activity would unavoidably create unreasonable risk, no duty to third parties |
| Whether Restatement §379A imposes duty on lessor for tenant activities (pasturing horses) | §379A can apply where lessor knew activity would unavoidably involve unreasonable risk or precautions would not be taken | Toomey reasonably relied on tenant’s obligation to maintain fence; pasturing does not unavoidably create unreasonable risk; no basis to impose §379A duty here | Held: §379A inapplicable—pasturing with a fence is not an unavoidably unreasonable risk and Toomey could reasonably expect precautions would be taken |
| Relevance of Vermont livestock statutes to common-law duty | Statutes showing owner/keeper liability imply only owner/keeper should be civilly liable for damages from animals running at large | Statutes do not displace common-law duties of possessors/lessors who retain control or knowledge; statutes are regulatory and limited in scope | Held: Statutes do not create a broad duty; court relies on common-law principles and requires ownership/management/control or comparable involvement to impose duty |
| Whether summary judgment inappropriate because factual disputes (possession/control of 1952 lot, fence condition, Toomey’s knowledge) require jury resolution | Plaintiff urged that evidence of Toomey’s possession/control and awareness of fence condition creates triable issues | Toomey argued undisputed record shows he disavowed responsibility and lacked control/knowledge sufficient to impose duty | Held: Court found no legally cognizable duty as matter of law; factual gaps (how horse escaped) and lack of contractor/ownership connection meant Toomey entitled to judgment as matter of law |
Key Cases Cited
- Wright v. Shedd, 177 A.2d 240 (Vt. 1962) (distinguishing liability of animal owner/controller from noninvolved parties)
- Blake v. Dunn Farms, Inc., 413 N.E.2d 560 (Ind. 1980) (landowner not liable when neither owner nor keeper and lacked control)
- Clauson v. Kempffer, 477 N.W.2d 257 (S.D. 1991) (summary judgment for noncustodial landowner where tenant controlled animals and fence)
- Gonzales v. Bierman, 773 P.2d 629 (Colo. App. 1989) (landowner potentially liable where known poor fence condition at time of transfer)
- Hastings v. Sauve, 989 N.E.2d 940 (N.Y. 2013) (declining to limit landowner liability; court found potential liability under ordinary tort principles)
- Misterek v. Wash. Mineral Prods., Inc., 531 P.2d 805 (Wash. 1975) (jury verdict against possessor who knew fences needed repair and allowed pasturing adjacent to highway)
- Park v. Hoffard, 847 P.2d 852 (Or. 1993) (landlord may be liable where landlord knows of tenant’s dangerous activity and can control tenancy)