Vermont Reaffirms No Duty to Child Trespassers; Attractive-Nuisance Change Reserved to the Legislature

1. Introduction

In Ian Treadway v. Green Mountain Power Corporation (2026 VT 20), the Vermont Supreme Court reviewed a grant of summary judgment to Green Mountain Power (GMP) after plaintiff Ian Treadway suffered severe electrical burns at age twelve while trespassing inside GMP’s fenced electrical substation in Springfield, Vermont.

The key legal issue was not whether the existing Vermont rule barred recovery—both parties agreed it did—but whether the Court should change Vermont common law by adopting the attractive-nuisance doctrine as set forth in Restatement (Second) of Torts § 339 (1965), which can impose a duty to protect trespassing children from certain artificial conditions. The Court declined and affirmed.

2. Summary of the Opinion

The Court held that Vermont’s longstanding rule remains: absent willful or wanton misconduct, a landowner owes no duty of care to protect a trespasser—including a child trespasser—from injury caused by unsafe or dangerous conditions on the property. The Court refused to adopt the attractive-nuisance doctrine by judicial decision, concluding plaintiff had not shown the “plain justification” required to overrule entrenched precedent under the framework described in Demag v. Better Power Equip., Inc.

A central theme was institutional: because Vermont’s “no-duty-to-trespassers” rule is intertwined with Vermont statutes promoting public recreational access to private land (and providing corresponding liability limitations), any change implicates broad policy tradeoffs best addressed by the Legislature.

3. Analysis

A. Precedents Cited

1) Core Vermont trespasser-duty line (stability and continuity)

  • Bottum's Adm'r v. Hawks (1911): The foundational Vermont authority establishing that landowners generally owe no duty to trespassers, and that the rule applies equally to children and adults. The opinion also contains an early, express rejection of “attractive nuisance,” warning it would make property ownership “unduly unsafe, if not intolerable.” Although later “abrogated on other grounds by Demag,” its trespasser-duty principle remains central to this case.
  • Coburn v. Vill. of Swanton (1920) and Chicoine v. James E. Cashman, Inc. (1936): Reinforced the no-duty principle toward trespassers and emphasized its equal application to children and adults.
  • Trudo v. Lazarus (1950): Reaffirmed the no-duty rule and expressly stated that “the so-called attractive nuisance doctrine is not recognized in this jurisdiction,” supplying the key doctrinal anchor for the Court’s refusal to create a child-trespasser exception.
  • Buzzell v. Jones (1989): Restated the “well-established” Vermont rule that landowners generally owe no duty to trespassers for unsafe conditions.
  • Zukatis by Zukatis v. Perry (1996) and Baisley v. Missisquoi Cemetery Ass'n (1998): Both recognized Vermont had not adopted attractive nuisance. The Court in this case used them to reject plaintiff’s argument that Vermont’s earlier decisions left the door open; it characterized those opinions as case-specific restraint rather than doctrinal drift.

2) Stare decisis and the “plain justification” standard for changing Vermont common law

  • Demag v. Better Power Equip., Inc. (2014): Supplied the controlling methodology: precedent that creates “certainty, stability, and predictability” should be overruled only with “plain justification” rooted in “our community’s ever-evolving circumstances and experiences.” The Court used Demag to demand Vermont-specific justification, not merely a national trend.
  • Zeno-Ethridge v. Comcast Corp. (2024): Reinforced that Vermont’s “community circumstances and experiences” govern whether policy bases for common-law rules remain relevant—supporting the Court’s refusal to pivot based on other jurisdictions’ standards.
  • Marshall v. Town of Brattleboro (1960): Cited for the proposition that a long-established doctrine should not be “lightly set aside,” strengthening the stare decisis posture.
  • In re Constitutionality of House Bill 88 (1949): Used to justify the Court’s unwillingness to treat prior restraint (declining to reach issues) as advisory or as a signal of openness to change.

3) Judicial role versus legislative role (policy-heavy change reserved to the Legislature)

  • Haupt v. Triggs (2022) and Wesco, Inc. v. Sorrell (2004): Invoked to frame the attractive nuisance question as a matter of competing public-policy interests—where courts “prefer not to substitute judicial fiat for legislative action.”
  • diMonda v. Lincoln Nat'l Corp. (2025): Cited to underscore that where policy arguments cut both ways, the Court may leave the decision to the Legislature precisely because both sides have force.
  • Herring v. Christensen (Md. 1969): An out-of-state example supporting legislative primacy when a rule is firmly established and the Legislature has not altered it despite repeated judicial references.

4) Recreational-access statutory context and “quid pro quo” immunity

  • Crogan v. Pine Bluff Estates (2021): Used to explain Vermont’s Recreational Use Statute as a policy tradeoff: landowner access for the public in exchange for limited liability. This matters because changing trespasser-duty rules could unsettle that bargain.
  • In re Brewster River Mountain Bike Club, Inc. (2025): Cited to show Vermont’s affirmative policy of encouraging landowners to open lands for recreational use.

5) Other jurisdictions’ handling of the attractive-nuisance doctrine (informative, not controlling)

  • Jones v. Billings (Me. 1972) and Haddad v. First Nat'l Stores, Inc. (R.I. 1971): Cited as examples of states adopting attractive nuisance, illustrating the national trend plaintiff invoked.
  • Stanley v. Tilcon Maine, Inc. (Me. 1988) and Jacobsen v. City of Rathdrum (Idaho 1988): Cited to show the lack of consensus on how attractive nuisance interacts with recreational-use statutes—supporting the Court’s concern about unintended statutory disruption.
  • Basso v. Miller (N.Y. 1976): Mentioned in the Restatement discussion (via the opinion’s note regarding Restatement (Third) alignment) as an example of broader premises-liability modernization elsewhere, but not a blueprint the Vermont Court adopted here.
  • State v. Roberts (2024), State v. Morris (1996), and Ferguson v. Town of Sheffield (1879): Cited to clarify that Vermont may consider other jurisdictions but is not bound by them—and may even adopt a minority position.

B. Legal Reasoning

  1. Procedural posture narrowed the case to a pure common-law change question. Because plaintiff conceded that, under existing Vermont law, GMP owed no duty to a trespasser absent willful or wanton conduct (and plaintiff did not allege willful or wanton misconduct), the dispositive issue became whether the Court should adopt Restatement (Second) of Torts § 339.
  2. Stare decisis: the rule has “certainty, stability, and predictability.” The Court emphasized more than a century of consistent Vermont precedent (from Bottum's Adm'r v. Hawks forward) applying the no-duty rule equally to children and adults.
  3. Prior refusals to adopt attractive nuisance were treated as substantive, not merely historical artifacts. The Court rejected plaintiff’s attempt to distinguish Vermont’s earlier cases based on the publication dates of the Restatement editions. Even if Hawks and Trudo predated § 339’s formulation, Vermont repeatedly declined to adopt the doctrine and reaffirmed the baseline no-duty rule.
  4. “Plain justification” must be Vermont-specific. Plaintiff argued that most states had adopted attractive nuisance, suggesting “common standards have evolved.” The Court, relying on Demag, held that the relevant inquiry is Vermont’s community standards and experiences, not national majorities.
  5. Legislative entanglement: trespasser-duty is embedded in Vermont’s recreational-access statutes. The Court reasoned that Vermont’s statutory scheme encourages public access to lands and trails while calibrating landowner liability by pegging it to the duty owed to trespassers:
    • 12 V.S.A. § 5791 expressly ties recreational users’ protection to the rule that an owner “shall have no greater duty of care” than to a trespasser.
    • 10 V.S.A. § 448 limits liability for Vermont trails system landowners absent intentional injury.
    • The Court also noted the Vermont Constitution’s tradition of access (Vt. Const. ch. II, § 67) and posting requirements (10 V.S.A. § 5201), underscoring the broader public-access context.
    Because adopting attractive nuisance could shift what “duty to a trespasser” means—especially for children—the Court viewed the change as potentially destabilizing to a legislative “deliberate balance.”
  6. Policy arguments existed on both sides; the Court treated that as a reason to defer, not to innovate. While acknowledging child-protection rationales cited by jurisdictions like Jones v. Billings, the Court concluded that the competing considerations (including access incentives and statutory reliance) made the matter suitable for legislative resolution rather than judicial creation of an exception.
  7. The Court noted alternative protections without changing tort duty. It pointed to local ordinances and municipal nuisance regulations addressing “attractive nuisance” conditions, suggesting that child-safety policy can be pursued through regulatory mechanisms even while the tort-duty rule remains unchanged.

C. Impact

  • Immediate doctrinal effect: The decision strongly reaffirms that Vermont landowners owe no duty to child trespassers absent willful or wanton misconduct, foreclosing attractive-nuisance claims unless the Legislature acts.
  • Litigation posture: Plaintiffs injured while trespassing—children included—will continue to face dismissal at the duty stage unless they can plausibly plead and prove willful or wanton conduct (or establish they were not trespassers).
  • Statutory reliance and recreational access: By linking the common-law duty to Vermont’s Recreational Use Statute and trails statutes, the opinion signals that changes to trespasser duty could reverberate across Vermont’s access framework. Future litigants seeking premises-liability expansion should expect the Court to ask whether a proposed change would indirectly rewrite legislative bargains.
  • Legislative invitation: The opinion functions as a roadmap for legislative debate: if Vermont wants an attractive-nuisance rule (or a narrower child-trespasser exception), it should be enacted in a way that harmonizes with 10 V.S.A. §§ 441-449 and 12 V.S.A. §§ 5791-5795.

4. Complex Concepts Simplified

Trespasser
A person on land without permission or legal right. Under Vermont common law, landowners generally do not owe trespassers a duty to make premises safe.
No-duty rule (with willful/wanton exception)
Vermont’s baseline rule: a landowner is not liable for injuries to trespassers caused by dangerous conditions, unless the landowner’s conduct is “willful or wanton” (roughly, deliberate harm or reckless disregard of a known high risk).
Attractive-nuisance doctrine (Restatement (Second) of Torts § 339)
A doctrine that can impose liability for harm to trespassing children caused by certain artificial conditions if five elements are met (likelihood of child trespass, unreasonable risk, child’s inability to appreciate the risk, low burden to fix compared to risk, and failure to use reasonable care to protect children). Vermont declined to adopt it.
Stare decisis
The principle that courts generally follow prior decisions to keep the law stable and predictable. The Court applied a strong version of this principle due to the century-long consistency of the rule.
“Plain justification” (from Demag)
A demanding standard for overruling settled Vermont precedent: the Court requires a clear reason grounded in Vermont’s own evolving circumstances and experiences—not merely a national trend.
Judicial restraint and “no advisory opinions”
Courts decide concrete disputes; they avoid pronouncing rules unnecessarily. The Court used this concept to explain why earlier cases that did not reach attractive-nuisance adoption do not imply openness to changing the law.
Recreational Use Statute “quid pro quo”
A policy tradeoff: landowners are encouraged to open land for free public recreation because, in return, their liability is limited—pegged to the low duty owed to trespassers. The Court saw this as a key reason not to judicially expand trespasser duties.

5. Conclusion

Ian Treadway v. Green Mountain Power Corporation is a reaffirmation decision with substantial policy significance. The Court held fast to Vermont’s longstanding rule that landowners owe no duty of care to trespassers—adult or child—absent willful or wanton misconduct, and it refused to adopt Restatement (Second) of Torts § 339’s attractive-nuisance doctrine.

The opinion’s broader contribution is its insistence that major shifts in landowner liability—especially those that may unsettle statutory schemes promoting public access to private land—require Vermont-specific “plain justification” or, more appropriately, legislative action that can recalibrate the competing interests in a comprehensive way.