The tort plaintiffs cite applies only where a defendant has undertaken to render services to another party. Here, there is no evidence that defendant, by erecting a fence to enclose his horse pasture, undertook to render services to anyone other than himself. The Derosia case on which plaintiffs rely is inapposite. There the plaintiff had been injured while operating a table saw that did not have a safety guard. The record showed that the defendant, a workers' compensation insurer, had conducted safety inspections for the plaintiff's employer.
Plaintiffs can point to nothing comparable in the case at bar.
Accordingly, I dissent from parts I and II of the majority opinion. Plaintiffs' complaint charged that the horse and pen were an attractive nuisance to the small child and it was foreseeable that the child would enter the pen, which was possible because the fence was not electrified. Defendant immediately moved to dismiss, arguing that Cory Zukatis was a trespasser and defendant owed no duty to a trespasser. The doctrine of attractive nuisance is not recognized in Vermont. It went on, over a year later, to dismiss the remaining counts on a motion for summary judgment.