Brief Fact Summary.
Bennett (plaintiff) brought suit against Stanley (defendant) alleging negligence.
Synopsis of Rule of Law.
Under the attractive nuisance doctrine the owner of land is liable to a child trespasser if they are injured by whatever the nuisance may be if the possessor of the nuisance has reason to know that children may trespass, the nuisance creates an unreasonable risk, the possessor of the nuisance knows or has reason to know that serious harm could result from the nuisance, the children are so young they cannot know of the risk or read signs posting about the risk the cost of correcting the risk is slight, and the possessor of the nuisance fails to exercise reasonable care.
The plaintiff was a five-year-old boy who was the neighbor of the defendant and ventured into the defendant’s yard. The defendant owned a swimming pool, which he had neglected over time, so much so that the pool featured characteristics of a pond, with various wildlife living in it, including frogs. There were no warning signs near the pool and no fence surrounding it. The two parties’ property was separated by a fence that contained an 8-foot gap and the plaintiff argued that the defendant knew that children frequently played outside with supervision. They further argued that the pool created an unreasonable risk for these children after the plaintiff ventured into the yard, fell into the while looking for frogs, and drowned. The trial court held that the only duty the defendant owed to trespassers was to refrain from wanton and willful misconduct.
Whether the owners of land owe a heightened duty to child trespassers rather than an ordinary one?
Yes. The owners of land owe a heightened duty to child trespassers rather than an ordinary one?
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.View Full Point of Law
Under the law of attractive nuisance, landowners owe a heightened duty or care to child trespassers and the children should be treated accordingly based on their ability to assess the risk. The doctrine balances a property owner’s rights to have whatever they please on their property vs. The public policy goal of protecting children. Because a reasonable jury could find all the elements of attractive nuisance have been met, the trial courts granting of summary judgment in favor of the defendant is reversed.