144 A.3d 324
Vt.2016Background
- In 2008 Wielt leased 1900 Harwood Hill from Toomey and was permitted to pasture two horses on that lot and an adjacent parcel (1952 Harwood Hill) on condition she care for the horses and maintain the fence.
- Wielt installed a temporary solar electric fence (two nylon strands on short fiberglass posts); Toomey walked past the pasture frequently but disavowed responsibility for the horses or fence and did not maintain or inspect it.
- At ~1:00 a.m. plaintiff struck a horse (Wielt’s thoroughbred) that had escaped onto VT Route 7A, suffering serious injuries; the fence showed sagging and a down gate, but record did not establish how or when the horse escaped or whether the fence was energized.
- Plaintiff sued both Wielt (the keeper/owner) and Toomey (landowner). Toomey moved for summary judgment arguing he owed no duty to prevent the horse’s escape.
- The trial court granted summary judgment for Toomey; the Vermont Supreme Court affirmed, holding Toomey owed no duty because he had no ownership, management, or control of the horse or the fence and had disclaimed responsibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a noncustodial landowner who permits a tenant to pasture animals owes a duty to third-party motorists to prevent escapes | Deveneau: landowner retained possession/control of the parcel(s) and knew of fencing condition; thus duty to exercise reasonable care to prevent harm | Toomey: no duty—liability for roaming animals attaches to the animal’s owner/keeper; he disavowed responsibility and did not control the horse or fence | No duty: summary judgment affirmed — landowner had no connection to ownership, management, or control of the horse or fence, so no duty to plaintiff |
| Whether Restatement (Second) of Torts § 379A (lessor liability for tenant activities) imposes duty on landowner absent special facts | Deveneau: § 379A supports duty where landowner knows of risk and retains control or consented to activity | Toomey: § 379A inapplicable because pasturing is not an unavoidably unreasonable risk and he disclaimed responsibility | § 379A not applied: court rejects imposing duty here because pasturing normally creates no unavoidable unreasonable risk and Toomey could reasonably rely on tenant’s obligation to fence |
| Whether Vermont statutes governing stray livestock displace common-law duties of possessors or limit tort liability to animal owners/keepers | Deveneau: statutory scheme does not preclude common-law duties of land possessors who retain control | Toomey: statutes show legislative focus on owner/keeper liability for roaming animals; thus landowner not liable | Statutes do not displace common-law duty analysis; court nonetheless finds no duty on these facts because Toomey lacked control/management of the animal/fence |
| Whether foreseeability of harm alone creates duty | Deveneau: foreseeability plus possession/control supports duty | Toomey: foreseeability alone insufficient; absence of control and undertaking defeats duty | Foreseeability alone insufficient; duty depends on relationship, control, and undertaking — absent here, no duty |
Key Cases Cited
- Wright v. Shedd, 122 Vt. 475, 177 A.2d 240 (Vt. 1962) (landowner liability depends on connection to ownership, management, or control of animal)
- Blake v. Dunn Farms, Inc., 413 N.E.2d 560 (Ind. 1980) (no duty where landowner is neither owner nor keeper of escaped animal)
- Clauson v. Kempffer, 477 N.W.2d 257 (S.D. 1991) (affirming summary judgment for noncustodial landowner lacking control over fence or animals)
- Gonzales v. Bierman, 773 P.2d 629 (Colo. App. 1989) (landowner potentially liable where owner knew fences were in poor condition when granting possession)
- Demag v. Better Power Equip., Inc., 197 Vt. 176, 102 A.3d 1101 (Vt. 2014) (standard of review for summary judgment)