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Nolan v. Fishman

Supreme Court of Vermont

September 6, 2019

Katerina Nolan, as Administrator of the Estate of Parker J. Berry
v.
Stephen J. Fishman and Susan B. Fishman

          On Appeal from Superior Court, Lamoille Unit, Civil Division Thomas Carlson, J.

          Andrew A. Beerworth and Sarah E. Cornwell of Paul Frank Collins P.C., Burlington, for Plaintiff-Appellee.

          Susan J. Flynn of Clark, Werner & Flynn, P.C., Burlington, for Defendants-Appellants.

          PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll, JJ.

          SKOGLUND, J.

         ¶ 1. The question presented is whether Vermont's Recreational Use Statute, 12 V.S.A. §§ 5791-5795, which provides limitations on landowner liability, is applicable to the undisputed tragic facts of the case. We find that the Recreational Use Statute applies and that defendants' motion for summary judgment should have been granted. Therefore, we reverse the holding of the trial court and remand.

         ¶ 2. The purpose of the Recreational Use Statute "is to encourage owners to make their land and water available to the public for no consideration for recreational uses." 12 V.S.A. § 5791. It does this by establishing "that an owner shall have no greater duty of care to a person who, without consideration, enters or goes upon the owner's land for a recreational use than the owner would have to a trespasser." Id. Here, we consider the extent of this protection for the first time.

         ¶ 3. The undisputed facts are as follows. Parker Berry, a three-year-old child, attended Elephant in the Field daycare located in Waterbury, Vermont. The daycare property consisted of a house on approximately three acres of land and was owned and operated by husband and wife, Noah and Marlena Fishman, who resided at that property. Stephen and Susan Fishman, defendants in this matter, are Noah Fishman's parents. Defendants live on a forty-acre parcel of land that adjoins the daycare's property. Thatcher Brook meanders on defendants' property, near the border with the daycare's property.

         ¶ 4. The daycare used a small area of defendants' land to access a brook beach on Thatcher Brook, which was used for water play in the warm months and other outdoor activities such as birdwatching. Children at the daycare also used a sandbox, brook bridge, and seasonal teepee on defendants' land. Defendants did not profit in any way from the daycare run by Noah and Marlena Fishman; they were not employed by or otherwise involved in the daycare's business activities. They were not paid by the daycare for the use of their land to access the brook. Defendants' land is not posted, and they have always held it open to the public for recreational use.

         ¶ 5. On February 11, 2016, Parker drowned in Thatcher Brook at a location approximately one hundred feet inside defendants' property line. He had become separated from the group of the daycare's children when the others left the vicinity of the brook.[1]

         ¶ 6. Plaintiff Katerina Nolan, administrator of Parker's estate (the estate), filed suit alleging defendants' negligence was a direct and proximate cause of the incident and circumstances surrounding Parker's death. Defendants filed a motion for summary judgment, asserting an affirmative defense under Vermont's Recreation Use Statute, 12 V.S.A. §§ 5791-5795. The estate opposed defendants' motion and filed a motion for partial summary judgment on defendants' recreational-use defense.

         ¶ 7. In response to the parties' motions for summary judgment, the trial court concluded that the undisputed facts showed that the activities engaged in by the daycare on defendants' land were a mix of recreation and education and met the statutory definition of recreational use. 12 V.S.A. § 5792(4) (defining "recreational use" as "an activity undertaken for recreational, educational, or conservation purposes" and providing nonexhaustive list of such activities). The undisputed facts also showed that defendants were not paid for opening their land to the daycare. However, the trial court concluded that there were material facts not clearly established and denied both summary judgment motions pending further development of the record. In its decision, the court wrote that the "pivotal question" was whether the defendants' property, at least the portion used by the daycare, "was 'open and undeveloped land' qualifying for the protection or was 'developed for commercial recreational uses.' "

         ¶ 8. The parties filed renewed motions for summary judgment based on additional facts each supplied. The court accepted the supplemental facts as not materially disputed. The court concluded that the undisputed facts showed: defendants' home was "some distance away" from the daycare; there is no natural boundary between the two properties; and, while the properties are separately owned, "they are owned by members of the same family and the Daycare Business property is clearly a small carve out from the larger parent property." The supplemental maps submitted with the renewed motions showed that the daycare's driveway started on defendants' property and the daycare's business sign was located on defendants' property at the beginning of the driveway. The maps provided the court with the understanding that the location of the brook beach and a previously mentioned "bridge" were "more closely attached to the Daycare Business property than to defendants' homeplace." The court found these factors consistent with the fact that the daycare advertised itself as being situated on a large farm with access to the brook.

         ¶ 9. The court concluded that Parker died in the backyard of the daycare, in a portion of defendants' property that was "seamlessly integrated" with the daycare's property, and thus the relevant portion of defendants' land "was not the 'open and undeveloped land' that the Legislature had in mind in encouraging landowners to make their land open to the public for general recreation." As such, the court determined that defendants were not entitled to the protection of Vermont's Recreational Use Statute ...


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