
    Kim GOULETTE, Parent and Guardian of Alanna Goulette; Shawn O’Brien, b/n/f John P. O’Brien and John P. O’Brien, Individually v. A. Judson BABCOCK and T.H.A., Inc. v. Malcolm APPLETON
    [571 A.2d 74]
    No. 88-095
    January 9, 1990.
   In November 1984, two children nearly drowned when they fell through the ice on a pond located at Indian Brook Apartments in Essex Junction, Vermont. Two lawsuits on behalf of the children were brought against the owner and manager of Indian Brook, A. Judson Bab-cock and T.H.A., Inc., respectively. The controversy centered around the lack of a fence surrounding the pond. The actions were consolidated, and the parties settled the case during the trial. This appeal concerns whether the court properly dismissed an indemnity action against Malcolm Appleton, the architect who designed the apartment complex, including the pond, in 1975.

The well-settled Vermont law of indemnity disposes of this appeal. The Restatement of Restitution § 95 (1937), adopted in Bardwell Motor Inn, Inc. v. Accavallo, 135 Vt. 571, 573, 381 A.2d 1061, 1062 (1977), states:

Where a person has become liable with another for harm caused to a third person because of his negligent failure to make safe a dangerous condition of land or chattels, which was created by the misconduct of the other or which, as between the two, it was the other’s duty to make safe, he is entitled to restitution from the other for expenditures properly made in the discharge of such liability, unless after discovery of the danger, he acquiesced in the continuation of the condition.

Defendants without question knew that the pond had no fence around it, and they acquiesced to this design for approximately nine years before the accident. The danger created by the lack of a fence was just as obvious to defendants as it was to the third-party defendant, Appleton. Even if Appleton negligently failed to provide a fence, his fault was no more “primary” than defendants, who allowed the pond to remain obviously unguarded for many years after the architect finished his work. Id. The notion that unfenced ponds pose a danger to children is no more peculiar to architects than to anyone else.

Affirmed.  