Trudo v. Lazarus

• Decision Date: 02 May 1950
• Docket Number: No. 2,2
• Citation: 116 Vt. 221,73 A.2d 306
• Court: Vermont Supreme Court
• Parties: TRUDO v. LAZARUS et al.

Page 306

73 A.2d 306

116 Vt. 221

TRUDO v. LAZARUS et al.

No. 2.

Supreme Court of Vermont.

May 2, 1950.

Paul R. Teetor, Middlebury, for plaintiff.

Louis Lisman, Burlington, for defendant.

Before SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

SHERBURNE, Chief Justice.

This is an action for personal injuries received on February 15, 1949. Viewed most favorably to the plaintiff the evidence reasonably tended to show the following facts: The plaintiff was 9 years old. For several years the defendants had owned a piece of land in the village of Middlebury located directly behind the house in which the plaintiff lived, upon which were the remains of a laundry building which had partially burned in 1942. Some of the walls remained standing, although the windows had been broken out, and the roof was falling in. The east wall was right up to the line of a house lot owned by one Ferland. Originally the window sills in this wall were about two feet above Ferland's land, but in 1947 he graded his backyard right up to the east wall of the laundry and filled it up to about three inches below the window sills. Children were accustomed to play in and about this building, but the plaintiff and her sisters aged 11 and 6 had been warned by their parents not to do so, and did not go into the building but played around it. On the day in question the plaintiff and her sisters were playing 'cowboys and crooks', a kind of hide and seek. While the plaintiff was standing on Ferland's land about two feet in front of one of the broken out windows her younger sister came running and grabbed her in such a way that she fell in through the broken out window opening and down upon some broken glass on the floor inside the building, and received the injuries for which recovery is sought. The defendants never did anything to guard against the possibility of children getting hurt there. There was no evidence that the defendants actually knew that children had played about this building, and it is doubtful if it can be inferred that they ought to have known that they had, but for the purposes of this discussion we will assume that they should have known that they had done so.

In her declaration the plaintiff alleges that the ruins of the partially burned laundry building constituted an attractive nuisance to children, and that it became and was the duty of the defendants to clean up, restore, repair and rehabilitate the premises so that they should not constitute an attractive nuisance dangerous to children as contemplated by V.S.1947, § 10,361, and that they wilfully, wantonly and maliciously failed and neglected so to do. Upon defendants' motion at the close of the plaintiff's evidence the court directed a verdict for the defendants and entered judgment thereon, to all which the plaintiff excepted.

Except as provided in the statute referred to, the so-called attractive nuisance doctrine is not recognized in this jurisdiction. Negligence presupposes a breach of duty owed by the party charged to the party injured. Chicoine v. Cashman, 108 Vt. 133, 136, 183 A. 487; Coburn v. Village of Swanton, 94 Vt. 168, 170, 109 A. 854; Bottum's Adm'r v. Hawks, 84 Vt. 370, 372, 79 A. 858, 35 L.R.A.,N.S., 440, Ann.Cas. 1913A, 1025. Our rule is that the owner or occupant is under no obligation to a trespasser, whether adult or child, to protect him from injury by reason of the unsafe and dangerous condition of the premises. Chicoine v. Cashman, Inc., supra, 108 Vt. at page 137, 183 A. 487; Coburn v. Village of Swanton, supra, 94 Vt. at page 171, 109 A. 854; Bottum's Adm'r v. Hawks, supra, 84 Vt. at page 373, 79 A. 858, L.R.A., N.S., 440, Ann.Cas. 1913A, 1025.

As in Bottum's Adm'r v. Hawks, supra, it is to be observed that this is not the case of one who digs a pit on his own land but so near the highway that a traveler by inadvertence steps off into it, like Barnes v. Ward, 67 E.C.L. 392, and Sanders v. Reister, 1 Dak. 151, 46 N.W. 680; nor is this the case of injuries intentionally inflicted, like the spring gun case, Bird v. Holbrook, 13 E.C.L. 667, and the baited trap case, Townsend v. Wathen, 9 East 277. Nor is this a case where the injuries were received by a trespasser or bare licensee from force negligently brought to bear upon him, as in Watterlund v. Billings, 112 Vt. 256, 23 A.2d 540; Dent v. Bellows Falls and Saxtons River Ry. Co., 95 Vt. 523, 116 A. 83; Seymour v. Central Vermont R. Co., 69 Vt. 555, 38 A. 236; and Lindsay v. Canadian Pac. R. Co., 68 Vt. 556, 35 A. 513, where the parties were injured, not by reason of the condition of the premises, but by the negligence of the defendants arising after they had entered upon the defendants' properties.

The instant case is one of omission merely. The evidence no more supports the allegations that the defendants wilfully, wantonly and maliciously failed and neglected to fix up the premises, so that they should not be an attractive nuisance dangerous to children, than the factual situation in Bottum's Adm'r v. Hawks, supra, and in Chicoine v. Cashman, supra. In the Bottum case the intestate, a boy, fell into an open bulkhead near a frequented street close by a school, and near which was a path habitually used by children. The...