Baisley v. Missisquoi Cemetery Ass'n, 96-433

• Citation: 167 Vt. 473,708 A.2d 924
• Decision Date: 23 January 1998
• Docket Number: No. 96-433,96-433
• Court: United States State Supreme Court of Vermont
• Parties: Tammy BAISLEY, et al. v. MISSISQUOI CEMETERY ASSOCIATION & Robert Young, Sr.

Page 924

708 A.2d 924

167 Vt. 473

Tammy BAISLEY, et al. v. MISSISQUOI CEMETERY ASSOCIATION & Robert Young, Sr.

No. 96-433.

Supreme Court of Vermont.

Jan. 23, 1998.

Motion for Reargument Denied March 24, 1998.

Timothy J. Ryan of Brown, Cahill, Gawne & Miller, St. Albans, for plaintiffs-appellants.

Duncan Frey Kilmartin of Rexford & Kilmartin, Newport, for defendants-appellees.

Before AMESTOY, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

This wrongful death action was brought by the family and estate of Craig Baisley, a five-year-old boy who fell from a tree onto a metal spike fence, incurring injuries that resulted in his death. The trial court granted summary judgment in favor of defendants Missisquoi Cemetery Association (MCA) and its president, Robert Young, Sr., concluding that Craig was a trespasser to whom defendants owed no duty of care. On appeal, plaintiffs contend that the trial court erred in (1) holding that defendants owed no duty of care to plaintiffs' decedent, (2) denying partial summary judgment to plaintiffs on defendants' affirmative defenses, (3) refusing to compel discovery of a statement by defendants' sole employee against a claim of attorney-client privilege, and (4) barring plaintiffs from interviewing defendants' sole employee outside the presence of defendants' counsel. We hold that defendants owed a duty of ordinary care to decedent, reverse the order of summary judgment on that issue, and do not reach the availability of defendants' defenses. We affirm the orders denying discovery and the opportunity to interview defendants' employee without the presence of counsel.

On the afternoon of October 22, 1991, five-year-old Craig Baisley followed his brother Jeffrey, Jr. and his friend Chris, both nine years old, to play in and around a nearby cemetery owned by MCA. The two older boys were working on a ground fort north of the cemetery on the other side of some railroad tracks. While working on the ground fort, they noticed the remnants of a tree house inside the cemetery. After entering the cemetery and examining the tree house, they decided to build their own tree house in another tree. They obtained a hammer from home and a ladder, which was lying in the railroad right-of-way north of the cemetery, apparently abandoned. They chose a tree that stood immediately outside the cemetery, on land owned by neighbors Richard and Shelba Prive.

Between the cemetery grounds and the tree ran a metal fence along the boundary of the cemetery land. The vertical bars of the fence were pointed, or "spiked." The boys approached the fence and tree from inside the cemetery and placed the ladder over the fence and against the tree, enabling them to climb into the tree branches. The tree branch on which Craig was standing broke, and he fell onto the spikes of the metal fence impaling himself. He died shortly thereafter because of puncture wounds to his heart and lungs.

Plaintiffs brought suit against MCA, its president, and the Prives, alleging defendants were negligent in allowing the hazardous condition caused by the tree and the fence. The Prives eventually settled and were dismissed. The remaining defendants moved for summary judgment, and the superior court granted the motion, holding that defendants owed decedent no duty of care because decedent was a trespasser on cemetery association land. Plaintiffs' challenge to this holding is the main issue in this appeal. Plaintiffs also ask us to rule that the affirmative defenses defendants have pled are not available, and grant plaintiffs partial summary judgment striking these defenses.

Two other issues arose in discovery. Plaintiffs deposed the caretaker of the cemetery, Raymond Revoir, who is MCA's sole employee. Revoir testified that he had worked for the cemetery association for fifteen years. He stated that he had previously seen children playing in the cemetery and had told them to go home, that he had seen remnants of an old tree house in the cemetery, and that he had seen a ladder on the railroad right-of-way several days before the accident. Plaintiffs' attorney asked Revoir if he had spoken with defendants' attorney about the accident, to which Revoir answered affirmatively. Defendants' attorney then asserted attorney-client privilege over the conversation between him and Revoir. Plaintiffs moved for an order directing Revoir to answer the question, but the court ruled that the communication between Revoir and defendants' counsel was covered by MCA's attorney-client privilege. Plaintiffs also moved to allow their counsel to interview Revoir outside the presence of defendants' counsel, but the court denied this motion on the basis that such an interview would be unethical.

I.

Plaintiffs claim that the trial court erred in granting summary judgment to defendants based on its conclusion that decedent was an undiscovered trespasser to whom defendants owed no duty of care. Summary judgment is appropriate only where, taking the allegations of the nonmoving party as true, it is evident that there exist no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Zukatis v. Perry, 165 Vt. 298, 300, 682 A.2d 964, 965 (1996).

To prove negligence, plaintiffs must show a duty of care on the part of defendants, failure to perform that duty, and injury resulting from the breach of that duty. See id. at 301, 682 A.2d at 966. The trial court held that defendants owed no duty of care to plaintiffs because Craig was a trespasser and granted defendants' motion for summary judgment on that basis. In order to reverse the trial court, we must conclude that (1) defendants owed a duty of care to plaintiffs, and (2) plaintiffs' allegations make out a breach of that duty.

In Vermont, a landowner generally owes no duty of care to a trespasser, except to avoid willful or wanton misconduct. See Buzzell v. Jones, 151 Vt. 4, 6, 556 A.2d 106, 108 (1989); Hillier v. Noble, 142 Vt. 552, 556, 458 A.2d 1101, 1103 (1983). We have not adopted the doctrine of attractive nuisance, so the absence of duty applies to both adult and child trespassers. See Zukatis, 165 Vt. at 300-01, 682 A.2d at 965-66. Plaintiffs urge us to abandon this status-based approach to landowner liability, see id. at 305, 682 A.2d at 968 (Dooley, J., dissenting) ("our law on landowner liability is in serious need of reexamination"), and the parties have briefed the wisdom of our traditional rule in detail, drawing on the many precedents from other states. Because of the unique facts of this case, however, we need not address the vitality of our landowner-liability rules.

Although Craig Baisley trespassed on the cemetery land to reach the ladder, he used the ladder to climb into the branches of a tree that is outside the cemetery on land belonging to the Prives. While in the tree, he may have been a trespasser on Prive property, but that status is irrelevant to defendants' duty of care. See Humphrey v. Twin State Gas & Elec. Co., 100 Vt. 414, 418, 139 A. 440, 442 (1927). If he ever again became a trespasser with respect to defendants, it was when he fell on the fence and became impaled. The question before us, then, is whether contact with a property boundary fence is a trespass such that the owner of the fence has no duty of care to avoid injury from the contact. At least as we have phrased the question, it appears to be one of first impression.

We note that the general statement of the no-duty-to-trespassers rule does not appear to encompass this circumstance. Thus, the Restatement defines a trespasser as one "who enters or remains upon land in the possession of another" without consent or other privilege. Restatement (Second) of Torts § 329 (1965) (emphasis supplied). Although the touching of the fence may be said to be a technical entry, the real purpose of the fence is to prevent entry onto the land.

We prefer to analyze the circumstance in relation to the reasons for the no-duty rule. A number have been advanced: (1) the presence of a trespasser on the land is not foreseeable, see Trudo v. Lazarus, 116 Vt. 221, 224-25, 73 A.2d 306, 308 (1950); (2) a duty of care would impose an unreasonable burden on the use of land, see F. James, Jr., Tort Liability of Occupiers of Land: Duties Owed to Trespassers, 63 Yale L.J. 144, 151 (1953); and (3) the trespasser is a wrongdoer, see id. at 152; W. Keeton, et al., Prosser & Keeton on the Law of Torts § 58, at 394 (5th ed.1984). To the extent these reasons exist at all, they are greatly attenuated for a property boundary fence. The fence is the landowner's face to the public and the users of adjoining lands. It is hardly unexpectable that the fence will be touched; indeed, the point of the fence is to allow contact to avoid an accidental entry onto the land. If the person who touches a boundary fence is a trespasser, it is only in the most technical sense. The burden of making a boundary fence safe is not unreasonable. See Barr v. Green, 210 N.Y. 252, 104 N.E. 619, 620 (1914).

Probably for these reasons, virtually all courts which have considered tort liability cases involving a boundary fence have analyzed the landowner's conduct under a duty of ordinary care, the duty applicable to a person who is on abutting land. See Butterfield v. Community Light & Power Co., 115 Vt. 23, 25, 49 A.2d 415, 416 (1946) (adopting prudent-person standard for abutters). Thus, the New York Court of Appeals held in an early case that "whether a person is liable for injuries arising from the erection of a fence depends upon the ordinary principles ... as to what constitutes negligence." Barr, 104 N.E. at 620. In Barr, the defendant erected a barbed-wire fence between his property and an adjoining schoolyard. An eleven-year-old girl inadvertently ran into the fence, from which she received lacerations on her neck. The court reversed summary judgment, holding that the defendant could be held liable for negligence in...