Some cases are just sad. 

Estate of Berry v. Fishman, 2019 VT 63

By Andrew Delaney

This decision deals with Vermont’s recreational use statutes and the limits on liability. If you’re not familiar, the statutes essentially exempt landowners from liability when someone uses their land for recreational purposes and no consideration is paid for the use.

This is a tragic case. Three-year-old Parker Berry drowned while attending Elephant in the Field daycare in Waterbury, Vermont. The younger Fishmans, husband and wife, ran the daycare on a three-acre parcel. The older Fishmans, husband’s parents and defendants here, own the adjoining forty-acre parcel. “Thatcher Brook meanders on defendants’ property, near the border with the daycare’s property.” The daycare used defendants’ property to access the brook and children also used a sandbox, brook bridge, and seasonal teepee on defendants’ land. Defendants didn’t profit from these uses and weren’t daycare employees. Defendants never posted the land and have always held it open for recreational use.

In February 2016, Parker drowned in Thatcher Brook about 100 feet inside the defendants’ property line. The administrator of his estate filed a negligence suit against the defendants. Defendants filed a motion for summary judgment, arguing the recreational use statutes barred the suit. The estate filed a motion for partial summary judgment on the recreational-use defense.

In response to the motions, 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.

The trial court also concluded that the defendants weren’t paid for their use of the property, but that there were material facts not clearly established and denied both summary judgment motions pending further factual development. In response to renewed motions for summary judgment, the trial court found the location of the uses important and noted that “the daycare advertised itself as being situated on a large farm with access to the brook.”

Because “Parker died in the backyard of the daycare, in a portion of defendants’ property that was ‘seamlessly integrated’ with the daycare’s property,” the trial court concluded that 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.’” Thus, the trial court granted the estate’s motion for partial summary judgment and denied the defendants’ motion.

Defendants asked for and got an interlocutory appeal, which brings us to SCOV’s door.

On appeal, defendants’ main argument is that the recreational use statutes apply and the trial court should have granted their motion. The SCOV majority agrees, reversing the trial court and holding that the recreational use statutes protect the defendants from suit.

Say it with me, folks: summary judgment is appropriate when . . . there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Because the majority holds that the recreational use statutes apply, it doesn’t get into the defense’s other arguments. The majority notes: “Under the statute, landowners are only liable for willful or wanton misconduct, which the estate concedes is not at issue here.”

Because we’re dealing with statutory interpretation, there’s no deference to the trial court. If the meaning is clear, that’s what goes. If it’s not so clear, then we look to other sources.

The majority starts with the plain language and quotes the purpose statement:

The purpose of this chapter is to encourage owners to make their land and water available to the public for no consideration for recreational uses by clearly establishing a rule 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.

The majority then turns to the statutory definitions of “consideration,” “recreational use,” and “land.” It concludes that there was no consideration to the defendants in this case. They weren’t daycare employees. They didn’t charge day-use fees. No consideration.

As to recreational use, the majority agrees with the trial court that “the statute applies to the daycare’s use of the land for recreational and educational purposes. Preschool-aged attendees were encouraged to explore the grounds, learn about nature, and enjoy the natural sights in and around defendants’ property.”

The majority departs from the trial court on the “land” definition. The trial court reasoned that the land in this case was not open and undeveloped and thus the statute provided no defense for the defendants. The majority disagrees.

The majority explains that, in its view, the trial court’s “reasoning distorts both the plain language of the statute and the legislative intent behind it.” It doesn’t matter to the majority that the daycare property is a carve-out of defendants’ land. The majority further opines that “the court erred in relying on the fact that defendants and the daycare owners were part of the same family to conclude that the land was not ‘open’ as contemplated by the statute.” The majority notes that adjoining properties in Vermont often are “seamlessly integrated,” so the trial court’s reliance on that fact was misplaced.

The majority also rejects the trial court’s conclusion that there land was at least partially “developed” with a sandbox, mowed pathways, and a brook bridge. Here, the majority notes: The Legislature took care to express that ‘land’ may include paths, trails, water courses, bridges, and walkways.” The majority rejects the daycare-owners-profited-from-the-use-of-defendants’-land argument, pointing out that, as the trial court noted, “guiding” is a protected use. Thus, although wilderness guides might benefit from land protected by the statutes, that doesn’t remove protection.

The majority concludes: “The estate has not argued, nor does the record indicate, that defendants engaged in willful or wanton misconduct. This was a heartbreaking event. But the law protects defendants in this case.”

Chief Justice Reiber dissents. Justice Robinson joins him. Chief Justice Reiber disagrees “with the majority in how it applies the law to the facts of this case.” In the dissent’s view, “the facts compel us to conclude that defendants’ property was ‘developed for commercial recreational uses’” and the recreational-use statutes don’t protect defendants from liability.

The dissent notes: “At the time of Parker Berry’s death, defendants owned a large property adjacent to a daycare center. Defendants held their property open to the public at large. That property included a large sandbox near their house and a brook. The property also included improvements by their daycare neighbors, including a bridge over the brook, mowed pathways and, at one time, a teepee.”

The dissent reasons that the “daycare center made heavy use of defendants’ property for their business, including frequent use of all these features. In fact, in introducing a new employee to the daycare, the daycare owners identified the teepee, the brook, and the big sandbox as ‘key spots’ the children regularly used. The daycare center advertised its use of these features in its promotional materials. It also advertised its access to forty-two acres, without disclosing that most of that acreage was not part of the daycare’s property, and it named itself after a large sculpture on defendants’ property.”

“The daycare center’s business model emphasized outdoor activity and exploration, which included extensive reliance on defendants’ property. Parents accessed the daycare center by driving onto defendants’ property. Defendants were aware that the daycare center extensively used their property for its business.” Based on all this, the dissent reasons that the “use of and reliance on defendants’ property was so extensive that it appeared to the parents of the daycare children that the two properties were one unified whole.” For the dissent, any real distinction between the properties is on paper only. This isn’t the “hypothetical guide” situation—this is a situation where family members let other family members use the property for business. “In practice, defendants’ land was used for, and developed for, commercial recreational uses, and Parker Berry died while on that property for that commercial recreational use.”
There’s no protection from the recreational-use statutes in this situation. The dissent would affirm the trial court’s decision.

Given that we all know—or should know—it’s really an insurance company that benefits from the exceptions to liability here, I’m not so sure I agree with the majority, but I’m not in charge. I just write the summaries. And the facts of this case are heartbreaking. That’s for sure.

Throughout this summary, I’ve referred to “statutes” in the plural, while the opinion itself refers to the singular. I’ve done this because there are five separate statutory sections in the chapter that’s being referred to as the Recreational Use Statute. I could be wrong about this. Please direct any complaints to my co-editor, Elizabeth Kruska.