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:Â 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)Â 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€
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Under the attractive nuisance doctrine: 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 place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
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Issue. Whether property owners have a heightened duty of care to protect child trespassers from dangers upon their land.
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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)Â 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.
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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.