Vermont law attributes different duties to a possessor of land towards entrants depending upon the entrant's status. The law divides entrants into three classes: invitee, licensee and trespasser. Each class is defined below and then the duty of a possessor of land towards that class is discussed.

        A.        Invitee

        Generally, an invitee is someone who the possessor of the land either explicitly or implicitly invites onto the property. Implicit invitees are generally either a public invitee or a business invitee. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. Farnham v. Inland Sea Resort Properties, Inc., 2003 Vt. 23 (2003); Restatement (Second) of Torts § 332 (1965). A business invitee is a person who is invited to enter or remain on the land for a purpose directly or indirectly connected with business dealings with the possessor of the land. Id.

        A possessor of land is subject to liability for physical harm caused to his or her invitees by a condition on the land if, but only if, he or she (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Restatement (Second) of Torts § 343 (1965); see Gero v. J.W.J. Realty, 171 Vt. 57, 757 A.2d 475 (2000). Limitations of place, purpose and time may be tied to the invitation, however, which, if exceeded, can deprive the invitee of that status. See Sanville v. Williams, 138 Vt. 498, 501, 418 A.2d 860, 861-62 (1980). Thus, the owner's duty of reasonable care to an invitee extends only to those portions of the premises to which he has been invited and to which the purpose of his visit may reasonably be expected to take him. Lucas v. Kelley, 102 Vt. 173, 176, 147 A. 281, 283 (1929). Or, if he "effects an entry for purposes other than ... for which the permission was granted, or, after entering, engages in activities beyond the scope of his permission, whatever duty may be owed to him comes to an end." Hillier v. Noble, 142 Vt. 552, 556, 458 A.2d 1101, 1103 (1983).

        B.        Licensee

        The class of licensees is a narrow one. A licensee enters property under authority of law, not by an express or implied invitation, and there are no business dealings between him and the possessor of the land. Cameron v. Abatiell, 127 Vt. 111, 241 A.2d 310 (1968). A licensee is one "who is privileged to enter or remain on land only by virtue of the possessor's consent." Restatement (Second) of Torts § 330 (1965). Licensees are those to whom the possessor "accords his consent out of mere grace, their visit being for their own purely personal purpose." quoting Elliman v. Gombar, 86 Ohio App. 352, 91 N.E.2d 801, 803. Licensee status "is inferred where the object is the mere pleasure or benefit of the person using it." Robillard v. Tillotson, 118 Vt. 294, 299, 108 A.2d 524, 527 (1954).

        A landowner has a duty to warn licensees about known dangers that involve an unreasonable risk of harm that the licensee will not discover or realize. See Peters v. State, 161 Vt. 582, 583, 636 A.2d 340, 341 (1993) (mem.) (citing Restatement (Second) of Torts § 342 cmt. d, illustration 2 (1965).

        C.         Trespasser

        A trespasser is one who "enters or remains upon land in the possession of another without a privilege to so do created by the possessor's consent or otherwise." Farnham v. Inland Sea Resort Properties, Inc., 2003 VT 23 (2003) quoting Restatement (Second) of Torts § 329 (1965); Baisley v. Young, 167 Vt. 473, 478, 708 A.2d 924, 927 (1998).

        In Vermont, a landowner generally owes no duty of care to a trespasser to protect him from injury caused by unsafe and dangerous conditions on the premises, except to avoid willful or wanton misconduct. Baisley v. Young, 167 Vt. 473, 708 A.2d 924 (1998); see Buzzell v. Jones, 151 Vt. 4, 556 A.2d 106 (1989) (additional citations omitted). Vermont does not recognize the doctrine of attractive nuisance. See Zukatis v. Perry, 165 Vt. 298, 300-01, 682 A.2d 964, 965-66 (1996).

II.        Maintenance of Sidewalks

        State statutes appear to mandate that municipalities maintain their sidewalks. See, 18 V.S.A. § 306a (" The provisions of this section shall not affect any legislative body's jurisdiction over class 1 town highways or any municipality's responsibility for general maintenance of class 1 town highways, including, but not limited to, spot patching, traffic control devices, curbs, sidewalks, drainage and snow removal.")(emphasis added); see also, 24 V.S.A. § 2291 (Towns, cities, and incorporated villages have the power to "set off portions of public highways … for sidewalks and bicycle paths and to regulate their use."). At least one Vermont case holds that municipalities have a duty to maintain sidewalks. See Latulippe v. City of Burlington, 93 Vt. 434, 435 (1919). (In the absence of any statutory provision relating to the matter, municipalities have a duty to maintain their sidewalks); see also, Dugan v. City of Burlington, 375 A.2d 991, 304 (Vt. 1977)("The building and maintenance of streets and sidewalks are governmental functions"); see also, Fuller v. City of Rutland, 122 Vt. 284, 286, 171 A.2d 58 (1961); but see, Stark v. First Nat. Stores, Inc., 117 Vt.231 (1952) (Landowners have a duty not to cause dangerous conditions on adjacent sidewalks).

        Despite the foregoing, landowners should review local ordinances and consult with an experienced attorney to protect themselves from liability towards pedestrians who utilize sidewalks in front of their property. If the property is a business and its possessor owns and controls the sidewalk, liability could attach with respect to invitees injured by a dangerous condition of the sidewalk. See Wakefield v. Levin, 118 Vt. 392, 110 A.2d 712 (1955); Smith v. Monmaney, 127 Vt. 585, 255 A.2d 674 (1969).

III.         Dog Bite Liability

        Vermont does not recognize the doctrine of strict liability with respect to dog bites. Carr v. Case, 135 Vt. 524, 525, 380 A.2d 91, 93 (1977).

        "The general rule is that 'the keeper of a domestic dog is not liable for injuries to persons and property unless the owner had some reason to know the animal was a probable source of danger.'" Davis v. Bedell, 123 Vt. 441, 442-43, 194 A.2d 67, 68 (1963). Stated another way, liability attaches only when "the dog's past behavior has been such as to require a person of reasonable prudence to foresee harm to the person or property of others." Id.

        Even if a dog owner is chargeable with knowledge of the dog's viciousness, her obligation under such circumstances is to exercise reasonable control and restraint of the animal. Carr v. Case, 135 Vt. 524, 526, 380 A.2d 91, 93 (1977). The Vermont Supreme Court has held that a landowner that chained-up a vicious dog was not liable where a child who knew of the dog's vicious propensities ventured into the radius of the dog's chain. Hillier v. Noble, 142 Vt. 552, 556-557, 458 A.2d 1101 (1983). The Court stated that "the law does not yet require that these common household pets be either caged or destroyed." Id.

        Where the owner knows of the dog's vicious propensities, the issue of provocation, by a minor or otherwise, is a defense that speaks to the provocateur's contributory negligence. Carr v. Case, 135 Vt. 524, 525-26, 380 A.2d 91, 93 (1977)("Because there was evidence presented from which the jury could infer that appellant had been contributorily negligent, the trial court was also correct in charging the jury on that issue). In such a case, the apportionment of fault is for a jury. Id. In a case where the question of a child's contributory negligence arises, his age, intelligence and experience are to be considered, as well as her knowledge of the situation and its dangers. Beaucage v. Russell, 127 Vt. 58, 238 A.2d 631 (1968).

IV.        Social Host Liquor Liability

        7 V.S.A. § 501(g), a subsection of Vermont's Dram Shop Act, provides: (g) Social host.

(1) Except as set forth in subdivision (2) of this subsection, nothing in this section shall create a statutory cause of action against a social host for furnishing intoxicating liquor to any person without compensation or profit, if the social host is not a licensee or required to be a licensee under this title. However, this subdivision shall not be construed to limit or otherwise affect the liability of a social host for negligence at common law. (emphasis added)

(2) A social host who knowingly furnishes intoxicating liquor to a minor may be held liable under this section if the social host knew, or a reasonable person in the same circumstances would have known, that the person who received the intoxicating liquor was a minor. Vermont's Dram Shop Act provides a remedy only for third parties injured by drunk driving, not a remedy for the drunk person against the person who served the alcohol. Langle v. Kurkul, 146 Vt. 513, 510 A.2d 1301 (1986). Landowners are not liable for the injuries caused by the consumption of alcohol on their property when they are not present during the consumption, do not furnish the alcohol, and do not control the alcohol consumed. Knight v. Rower, 170 Vt. 96, 742 A.2d 1237 (1999). Under Vermont common law, a social host has no duty on behalf of a social guest "absent a situation where the social host furnishes alcoholic beverages to one who is visibly intoxicated and it is foreseeable to the host that the guest will thereafter drive an automobile, or, where the social host furnishes alcoholic beverages to a minor." Langle v. Kurkul, 146 Vt. 513, 510 A.2d 1301 (1986).

V.        Negligence of Minors

        Vermont has never recognized a set age limit below which a child is deemed incapable of negligence. See Mitchell v. Amadon, 128 Vt. 169, 177, 260 A.2d 213 (1969). A child of less than three has been held to be incapable of negligence, as a matter of law. Howe v. Central Vermont Ry. Co., 91 Vt. 485, 493, 101 A. 45 ( ). In the case of Johnson's Administrator v. Rutland Railroad Company, 93 Vt. 132, 106 A. 682 (1919) the question of contributory negligence on the part of a child six years and nine months old was presented to the Court. The Court rejected the doctrine held in some jurisdictions that a child under the age of seven years should be deemed incapable of any care or discretion. Id. The Court stated:

        "A more satisfactory doctrine, and one in harmony with our former decisions, is that a child may be of such tender years that he should be conclusively presumed incapable of judgment and discretion. On the other hand, he may be so mature in age and intelligence that the Court should say as a matter of law that he is capable of exercising some degree of care for his own safety under circumstances like those in question; in which case, under the rule that prevails with us, if there is no evidence that any care was exercised, the question of contributory negligence is one of law and not of fact. Lying between these limits, necessarily undefined as to age, are the cases where the question of capacity to encounter and avoid a given danger cannot be ruled as a matter of law, either that the child has or does not have any capacity for caution, or was capable or incapable of exercising care for his own safety in the circumstances. In such cases capacity is purely a question of fact to be submitted to the jury on the evidence." Id. at 140.

VI.        Parental Liability for Acts of Child

        15 V.S.A. § 901 Parents' Liability for Damages, provides: "(a) When an unemancipated minor under the age of 18 years willfully or maliciously causes damage to any property, public or private, or injury to a person, either of his parents shall be liable to the owner of such property or to the person injured, in an action on this statute, for the damage to property, injury to person, or either, in an amount not to exceed $5,000.00 provided such minor would be liable had such minor been an adult. If the damage or injury is caused by two or more such minors, a parent shall be liable for each of his children subject to the provisions of this section in an amount not exceeding $5,000.00. The remedy herein provided shall be in addition to, and not in lieu of, any other remedy which may exist at law, except, however, that any judgment subsequently recovered in any action brought for money damages on account of the damage or injury herein contemplated shall be reduced by the extent of any previous judgment recovered in any other such action."

        Vermont's common law recognizes the tort of negligent supervision of a minor. See e.g., Mailhiot & Coltey v. Nationwide Mutual Fire Insurance Company, 169 Vt. 498, 740 A.2d 360 (1999). Vermont appears to have adopted the Restatement (Second) of Torts § 316 explication of the tort. See Cooperative Fire Ins. Assoc. of VT. v. Gray, 157 Vt. 380, 599 A.2d 360 (1991), footnote 1 (Stating that "[i]n appropriate circumstances parents have a duty to control, or supervise, their children. Restatement (Second) of Torts § 316 (1965)). Section §316 of the Restatement provides: "A parent is under a duty to exercise reasonable care so to control his minor child as to prevent it from intentionally harming others or from so conducting itself as to create an unreasonable risk of harm to them if the parent

        (a) knows or has reason to know that he has the ability to control his child, and

        (b) knows or should know of the necessity and opportunity for exercising such control.

        Although intentional act exclusions contained in homeowners' insurance policies have been held to void coverage for the intentional behavior of a child insured, those provisions, unless carefully drafted, do not void coverage for a parent sued for negligent supervision of the same child, for the same injuries. See Northern Security Insurance Co. v. Perron, 172 Vt. 204, 777 A.2d 151 (2001). ***

Prepared by:     Matthew D. Anderson, Esq. of
                        Reis, Urso, Ewald & Anderson, PLLC
                        Advising insurance companies and individuals since 1969.