Katerina Nolan, as Administrator of the Estate of Parker J. Berry
Stephen J. Fishman and Susan B. Fishman
Appeal from Superior Court, Lamoille Unit, Civil Division
Thomas Carlson, J.
A. Beerworth and Sarah E. Cornwell of Paul Frank Collins
P.C., Burlington, for Plaintiff-Appellee.
J. Flynn of Clark, Werner & Flynn, P.C., Burlington, for
PRESENT: Reiber, C.J., Skoglund, Robinson, Eaton and Carroll,
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
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
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
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.
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
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
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 ...