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Bennett v. Stanley

Law Dictionary
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Torts Keyed to Dobbs


Citation. Bennett v. Stanley, 748 N.E.2d 41, 92 Ohio St. 3d 35, 2001 Ohio LEXIS 1524, 2001-Ohio-128 (Ohio June 13, 2001)

Brief Fact Summary. A five-year-old boy trespassed into his neighbor’s yard to play by their unkempt, pond-like pool, fell in, and drowned.  His mother also drowned trying to save him.  The father sued the neighbors in negligence.

Synopsis of Rule of Law.
Synopsis Rule of Law:  A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon land if:
(a) the possessor knows or has reason to know that children are likely to trespass on that place;
(b) the possessor knows or has reason to know the condition will involve unreasonable risk of death or serious bodily harm to such children;
(c) because of their youth the children do not discover the condition or realize the risk involved
(d)  the risk of harm to the children outweighs the possessor’s utility of maintaining the condition and his burden of eliminating it;
(e) the possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children.â€

 

Facts.  Kyleigh and Chance Bennett, 3 years old and 5 years old respectively, were playing at their neighbor Stanleys’ pool on March 20, 1997.  The Stanleys did not properly maintain the pool, but had allowed it to fill with rainwater to a depth of over 6 feet.  They had removed a tarp from the pool and fencing from two sides of the pool and it did not have any ladders.  It became pond-like and contained tadpoles and frogs with slimy sides covered in algae.  Chance fell into the pool and his mother apparently drowned trying to save him.  When Rickey Bennett came home on the day of the drowning he found his two young daughters crying.  Kyleigh told him that “Mommy and Chance are drowning in the water.â€Â  Bennett ran next door to find his wife and son unconscious in the swimming pool.  Both died.  Bennett sued the Stanleys in negligence.  The trial granted the Stanleys’ motion for summary judgment, the appeals court affirmed, and the Ohio Supreme Court reversed and remanded.

 

Issue. Whether property owners have a heightened duty of care to protect child trespassers from dangers upon their land.

 

Held.  Yes.  Children have a special status in tort law and duties of care owed to them are proportioned to their inability to foresee and avoid the perils that they may encounter.  The Ohio Supreme court adopted the “attractive nuisance†doctrine of the Restatement of Torts 2d in this case, which provides that “A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon land if:
(a) the possessor knows or has reason to know that children are likely to trespass on that place;
(b) the possessor knows or has reason to know the condition will involve unreasonable risk of death or serious bodily harm to such children;
(c) because of their youth the children do not discover the condition or realize the risk involved
(d)  the risk of harm to the children outweighs the possessor’s utility of maintaining the condition and his burden of eliminating it;
(e) the possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children.â€Â 
Accordingly, the court reversed the judgment of the lower courts granting summary judgment for the Defendants and remanded.

 

Discussion. The attractive nuisance doctrine applies only to children who, because of their youth, are unlikely to appreciate the dangers and to avoid them.  Thus, the doctrine applies mainly to children of grade school age or younger and only rarely to teenagers.

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