Attractive Nuisance

I mean come on. Who wouldn't
want to pet that belly?

 By: Elizabeth Kruska

 

Treadway v. Green Mountain Power Corporation, 2026 VT 20

 

I have a cat (see photo of actual cat). She does the “social flop” where, when she’s happy to see me, she flops on her side and rolls over a little bit. Her belly is furry and soft. I want to pet the belly. I pet the belly. She extends the murder mittens and takes a swipe. Every time. Every. Single. Time. But the belly is so soft and so inviting and I want to pet it. I know better. I do it anyway.

 

I refer to the belly as the attractive nuisance. I know it’s a problem. I can’t resist. 

 

In this case the plaintiff did something similar but on a much larger and much more serious scale. As a young teen, he was out goofing around with some friends. They went to an area where the power company has an electrical substation. There was a fence and a sign that said, “DANGER” and “HIGH VOLTAGE KEEP OUT.” This feels pretty unambiguous. But it also feels tempting. The plaintiff climbed the fence despite the warnings, and when he did so, he got electrocuted and very badly burned.

 

Plaintiff sued the power company for his injuries. The power company moved for summary judgment and won. Plaintiff appealed and SCOV affirmed. Plaintiff wanted to use this as an opportunity to get Vermont to follow the attractive nuisance doctrine. We don’t follow it, we haven’t for a long time and it apparently SCOV doesn’t plan to any time soon. 

 

The attractive nuisance doctrine has four parts but basically boils down to creating landowner liability for trespassers when the landowner has something on their land that is so tempting that despite warnings, a child simply cannot resist interacting with it. That’s the attractive nuisance. The soft kitty cat belly. If the child trespasser gets hurt, the landowner could be liable for the injuries. 

 

SCOV says nope. If the legislature wants to do it, they can but the court isn’t about to take this on and start giving out duties of care where they didn’t previously exist. SCOV does a nice trip through our history of levels of landowner liability and in the end decides not to expand what we have. To do so would change our law by “judicial fiat” (yes, that appears in the opinion), and SCOV isn’t about to do that.