Who is to blame for drowning death of 3-year-old?

The Vermont Supreme Court is being asked to decide whether the owners of a 41-acre property in Waterbury should be held responsible for the 2016 drowning death of a toddler attending a day care adjacent to their land.

In February of that year, 3-year-old Parker Berry of Hyde Park drowned in Thatcher Brook after supervisors at the day care lost track of him. The day care, Elephant in the Field, allegedly had a “free-range” philosophy of child care, allowing the kids to wander about and explore as they wished.

Then-Washington County State’s Attorney Scott Williams declined to file criminal charges against the day care’s owners, Noah and Marlena Fishman.

But in October 2016, the toddler’s mother, Katerina Nolan, filed a civil complaint in Lamoille County Superior Court against Stephen and Susan Fishman, the parents of Noah Fishman.

According to court documents, the parents own the 41 acres on Guptil Road adjacent to where Elephant in the Field used to be. In fact, the elder Fishmans had, several years earlier, subdivided their land to create the parcel for their son and daughter-in-law.

Nolan argued that the elder Fishmans were legally responsible for what happened on their land. The Fishmans argued they are protected under Vermont’s recreational use statute.

The case crept along in Lamoille County until last July, when the Fishmans sought, and were granted, an interlocutory appeal to the Supreme Court. An interlocutory appeal essentially pushes the pause button on a lower court case before it can go to trial, to see if the Supreme Court will weigh in on the merits of the case.

The Supreme Court heard oral arguments in the case last week. No schedule for a decision has been issued.

“The defendants knew Parker was on their land, they knew why he was there, they knowingly exposed him and the other children, or allowed them to be exposed, to the brook,” Andrew Beerworth, the lawyer representing the Parker Berry estate, said during the oral arguments March 12. “And they knew that the only thing standing in the way, or between those children and certain injury or death, was a day care that extolled the virtues of not closely supervising children during outdoor play.”

Susan Flynn, lawyer for the property owners, said in her brief to the Supreme Court, “Despite irresponsible verbiage to the contrary, neither Mr. Fishman nor Mrs. Fishman owned, operated, worked for, or had the slightest legal connection with the day care business. They did not ‘supervise’ it, or any part of it. They were not even home at the time of the accident.”

Landowner responsibility?

Elephant in the Field Holistic Education and Childcare got its start in September 2012, when Noah and Marlena Fishman opened their farm on Guptil Road in Waterbury as a day care.

The children helped with tasks on the farm, such as feeding the animals, and were encouraged to explore the fields and woods on the property.

Beerworth argues that the day care maintained mowed pathways through Stephen and Susan Fishman’s property, all the way to a beach area by the brook where the children often played. In addition, the day care reportedly constructed a log bridge across the brook, a sandbox and a teepee, all of which were on the Fishmans’ property.

Flynn, in her brief, said Lamoille County Judge Thomas Carlson erred in equating those human-made improvements with a free-flowing natural geographic feature, like a river.

“(Parker) did not drown in the sandbox. He did not perish in a long-gone teepee, or on the log ‘bridge.’ He drowned in Thatcher Brook, a natural body of water,” Flynn stated.

She said in her oral argument that Vermont’s recreational use laws protect property owners like the Fishmans, citing the law that states “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.”

Flynn argued that if judges “erode” the recreational use laws, “we will see more and more postings of land.”

Beerworth told the justices last week that the Fishmans could have taken measures to avoid something like Parker’s drowning, such as telling their son and daughter-in-law to not allow kids on the greater property, or building a fence to prevent such wanderings.

“Defendants were aware that the day care, which had been featured in the local news as an outdoor-focused child care program for ‘free-range toddlers,’ provided minimal child supervision during outdoor play,” Beerworth said in his brief. “Defendants knew that the children attending the day care regularly played in and around the open brook that coursed through their property.”