(Paralegal) Property Liability: Attractive Nuisances And Trespassing Children (Discussion)

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Case Study:

Andrew Jones, age 8, lived with his father, Arvid Jones, in apartment building next to the farm owned by Debbie and Brad Morrison. On the back of the farm property was a small creek that had good fishing, but there were deadly piranha in the waters. Andrew would often sneak onto the farm property to fish.

One day, while fishing on the farm, Andrew was bitten by a piranha and severely injured. While running to help his son on the farm property, Arvid tripped on a wire and broke his ankle. The Joneses sue the Morrisons for their injuries. Explain whether the Morrisons owe a duty of care to Andrew and Arvid.

Why is it that we allow people who are harmed committing crimes to sue those they are committing a crime against? If someone breaks into my house and trips on the step and is hurt why on earth would we ever allow them to sue?
Discussion:

An attractive nuisance is a condition or object on someone’s property that might prove irresistible–but which poses a danger to– curious trespassing children. The classic example would be a train yard turntable; the modern example would be a private swimming pool or construction sites.

Per Restatement of Torts (§339), a property owner can be held liable for “attractive nuisance”-related injuries if the property owner:
* was aware that children might trespass
* was aware that the condition/object in question might cause harm or death to trespassing children
* was aware that trespassing children might be incapable of understanding the danger presented by the condition/object
* can’t defend why the condition/object, no matter how useful, was left accessible to trespassing children instead of being stored or otherwise made more difficult to access; in other words, reasonable measures were not taken
* has been negligent by not adequately preventing access to the condition/object or not taken care to prevent trespassing children from being harmed (Rottenstein, 2012).

Mitigating factors: if the nuisance is natural, or even if great care has been taken to make it look like a naturally-occuring water feature (rather than man-made), the courts may take this into account and rule that even a child should know better than to play in a creek or lake. If the condition/object which lured the child to trespass (example: a dirt mound deemed perfect to use with go-carts) was different from the object that harmed the trespassing child (example: a canal near the dirt mound), the court may determine that the child was not lured by the “attractive nuisance” that caused harm, but by something else (Toal, 2007). If the property owner was aware of trespassing children and warned them away, this, oddly, may inspire the court not to find in his/her favor, as s/he would then be aware that children were trespassing and thus could potentially be harmed, and s/he failed to take measures to curb the trespassing.

In Mayle v. McDonald Steel Corporation (2011), children dove off a high wall into “frothy” water below. One child was caught by the current and drowned. The court held that even a child could determine that jumping from a tall wall into noticably roiling, violently churning water would be dangerous. McDonald prevailed.

In Mason v. City of Mt. Sterling (2004), a boy was attracted by “floating cars” in a parking lot after a hard rain and decided to go investigate. He stepped over a submerged culvert entrance hidden by several inches of still, muddy, opaque water and was, tragically, sucked into a storm sewer and drowned. In Mason, the child’s lawyer prevailed, because the boy had no way to perceive the danger beforehand (Meyer, 2011).

In our case study, the McDonalds apparently did not construct the water feature that attracted Andrew, which will probably be considered to be in their favor. They may or may not have been aware of the presence of the piranha or that Andrew had been trespassing. We aren’t told if the McDonalds posted any signs or erected any fences, either, or if they lived on the farm or just owned the property (it is possible they might own a piece of property, perhaps inheriting it, without ever having set foot on it). The extent of their liability will be determined by how many (if any) precautions the McDonalds took to keep trespassers off their property and if they were even aware of the existence of the creek or the piranha in it (piranhas are not normally found in creeks on farms; an alligator, however, might be). Since we aren’t told what the McDonalds did or knew, it is hard to determine just how liable they might be considered to be by a court. They would have to fail one of the five previously-stated conditions.

As for Andrew’s father, he was trespassing, full stop (not an invitee or licensee). Some consideration might be given to the fact that he was going to the aid of his stricken son, but the McDonalds should not have to make their property safe for adult trespassers, as adults should know better than to trespass in the first place.

I suspect that the McDonalds might be considered not to have done due diligence by inspecting the property and taking care to do their best ot block off access to curious trespassing children, though that still depends on some info we have not been provided. They will probably not be held liable for Arvid’s injury.

As for “burglar is injured, sues property owner, prevails” cases, after several hours of hunting, I was only able to find dozens of “friend of a friend” no-names-mentioned anecdotes of burglars falling through skylights, being trapped for days in locked buildings, being menaced by vicious guard dogs, etcetera. That’s probably a failing on my part. If a burglar (or his survivors) ever did prevail and the decision in favor of the burglar (or survivors) was actually upheld upon appeal, I suspect that it would be due to the property owner having a dangerous condition left unaddressed on his or her property that could reasonably be assumed to have been dangerous even for innocent parties visiting the site without malicious intent. In that case, the burglar’s actions might have been held to be less of a menace than the unaddressed hazard. But, as noted, I found a lot of urban legends (mostly debunked) and stories light on factual data such as location, names, dates and so on. (See also: http://answers.google.com/answers/threadview?id=217602, which collects a lot of the links I found elsewhere, including Snopes and the Stella Awards site.) If another student finds a real case with names and dates, I’ll be glad to examine it and express an opinion!

(Incidentally, the Stella Awards were named after Stella Liebeck, who was burned by a McDonald’s hot coffee. It’s unfair to name allegedly frivolous litigation awards after her, because McDonald’s had been made aware before Stella’s accident that their coffee was much too hot and ignored complaints. Further, Stella was in the passenger seat of a stationary car when she spilled the coffee on her lap and suffered third degree burns. The photos of her injuries are traumatizing just to look at. McDonald’s deserved to be sued, and Stella did not have a frivolous complaint nor a trivial injury and deserved the damages she was awarded. She had no way as a customer to know the coffee would be served at a temperature approximately 50 degrees hotter than recommended (almost boiling), but McDonald’s did know, due to prior problems and complaints, that the coffee was too hot and served it anyway.)
References:

Twomey text and SUO lecture for Week 5

Kendall, D. & McCrea, H. (2010, April 20). Attractive Nuisance: Can federal courts help tackle global warming? Retrieved from http://www.motherjones.com/environment/2010/04/climate-desk-supreme-court-climate-change

Scheuerman, S. B. & Robinette, C. J. (Torts Prof Blog). (2006, April 11). Attractive Nuisance and Seventeen-Year-Olds. Retrieved from http://lawprofessors.typepad.com/tortsprof/2006/04/attractive_nuis.html

Wilhoit, S. K. (University of Houston Law Center). (2006, April 11). Comment on “Attractive Nuisance and Seventeen-Year-Olds” article. Retrieved from http://lawprofessors.typepad.com/tortsprof/2006/04/attractive_nuis.html

Meyer, R. (2011, December). Children Beware Of Attractive Nuisances. Retrieved from http://www.dbllaw.com/2011/12/children-beware-attractive-nuisances/

Rottenstein Law Group LLP. (2012). What is an “attractive nuisance”? Retrieved from http://www.rotlaw.com/legal-library/what-is-an-attractive-nuisance/

Holmes, Justice (SCOTUS). (1922, March 27). UNITED ZINC & CHEMICAL CO. v. BRITT, 258 U.S. 268 (1922). Retrieved from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=258&invol=268

Fourt, Judge. (1956, September 17). Wilford v. Little, 144 Cal. App. 2d 477. Retrieved from http://law.justia.com/cases/california/calapp2d/144/477.html

Toal, Chief Justice. (2007, August 27). The Late Terry Henson, by Harriet Hunt, his Aunt and Appointed Guardian ad Litem and Personal Representative v. International Paper Company, Georgetown Steel Corporation, The City of Georgetown, and Georgetown County. Retrieved from http://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=26374

Cornell University Law School (Legal Information Institute). (2010, August 19). Attractive Nuisance Doctrine. Retrieved from http://www.law.cornell.edu/wex/attractive_nuisance_doctrine