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Newsletters>
Do The Professors Really Know the Law?
March 27, 2008
Recently on Fox News Lis Wiehl an adjunct professor of law
at New York Law School, and formerly an associate
professor at University of Washington Law School made a
startling claim over a legal issues presented on a
newscast.
The short form facts appear to be that a college student
fell down a dumpster and was in fact killed. Amazingly
Professor Wiehl spent the entire time talking about how
this was the attractive nuisance doctrine.
We were so amazed we were speechless. Did she really know
something about the law that we missed? Does the attractive nuisance doctrine apply to students at college who are over 18 and are adults? Is a dumpster an attractive nuisance in the first place, or even an dangerous instrumentality?
After all we invented Dean's Law Dictionary and we have programs that think better than Professors do and can do complete legal analysis.
Well read for yourself. If you have thought that law
professors were always short a few cards and really don't
know that much this certainly is one nail in the coffin.
What grade would you give her???
From Dean's Law Dictionary
While the attractive nuisance doctrine is not ordinarily
applicable to adults, it "may be successfully invoked by an
adult seeking damages for his or her own injury if the
injury was suffered in an attempt to rescue a child from a
danger created by the defendant's negligence." 62 American
Jurisprudence 2d (1990), Premises Liability, Section 288
Attractive Nuisance Doctrine: An unusual condition,
instrumentality, machine, or other agency on premises which
is dangerous to children of tender years but so interesting
and luring to them as to attract them to the premises.
Courts have consistently held that children have a special
status in tort law and that duties of care owed to children
are different from duties owed to adults: "The amount of
care required to discharge a duty owed to a child of tender
years is necessarily greater than that required to
discharge a duty owed to an adult under the same
circumstances. 'Children of tender years, and youthful
persons generally, are entitled to a degree of care
proportioned to their inability to foresee and avoid the
perils that they may encounter. The same discernment and
foresight in discovering defects and dangers cannot be
reasonably expected of them, that older and experienced
persons habitually employ; and therefore the greater
precaution should be taken, where children are exposed to
them.' " Di Gildo v. Caponi (1969), 18 Ohio St. 2d 125,
127, 47 Ohio Op. 2d 282, 283, 247 N.E.2d 732, 734, quoting
Ohio Jurisprudence 2d 512 (1959),
Recognizing the special status of children in the law,
courts have even accorded special protection to child
trespassers by adopting the "dangerous instrumentality"
doctrine: "The dangerous instrumentality exception [to
nonliability to trespassers] imposes upon the owner or
occupier of a premises a higher duty of care to a child
trespasser when such owner or occupier actively and
negligently operates hazardous machinery or other
apparatus, the dangerousness of which is not readily
apparent to children." McKinney v. Hartz & Restle Realtors,
Inc. (1987), 31 Ohio St. 3d 244, 247, 31 Ohio B. Rep. 449,
452, 510 N.E.2d 386, 390.That doctrine was developed in Coy
v. Columbus, Delaware & Marion Elec. Co. (1932), 125 Ohio
St. 283, 181 N.E. 131, a case where a six-year-old boy was
injured when he touched a high voltage transformer owned by
the defendant and located in a vacant lot known to be
frequented by children. The court applied a negligence
standard to the behavior of the company, despite the fact
that the child had been trespassing. The court quoted with
favor the court in Haywood v. S. Hill Mfg. Co. (1925), 142
Va. 761, 765-766, 128 S.E. 362, 363-364: " 'Certainly a
deadly, hidden force, as in this case, should not be left
easily accessible to children whose frequent presence in
this vicinity was known to the defendant, and acquiesced in
by it, and this without so much as a danger sign anywhere
thereabout. The care must be commensurate with the danger.'
"
Thus, the court adopted as early as 1932 some of the
hallmarks of the attractive nuisance doctrine. Elements
such as knowledge of children's presence, the maintenance
of a potentially dangerous force, and an exercise of care
by the owner commensurate with the danger are a part of the
attractive nuisance doctrine in most states, as reflected
in Section 339 of the Restatement of Torts. The doctrine as
adopted by numerous states is set forth in Restatement of
the Law 2d, Torts (1965), Section 339:"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."
Attractive nuisance found its initial genesis in the
turntable doctrine. The "turntable doctrine" was a somewhat
controversial doctrine wherein railroads could be liable to
children for injuries suffered on unguarded railroad
turntables. The theory of liability was established in
Sioux City & Pacific RR. Co. v. Stout (1873), 84 U.S. (17
Wall.) 657, 21 L. Ed. 745, and has been adopted by many
states. The burning question for many years was whether to
apply the doctrine to non-turntable cases. Many of the
states that adopted the turntable doctrine refused to apply
it to cases not involving turntables. Id. at 245, 83 N.E.
at 69-70. The Restatement of the Law, Torts (1934) and
Restatement of the Law 2d, Torts (1965) removed legal
fictions and imposed balancing factors to consider on
behalf of landowners. Comment, The Restatement's Attractive
Nuisance Doctrine: An Attractive Alternative for Ohio
(1985), 46 Ohio St. L.J. 135, 138-139. Only two states that
have not either created a special duty for trespassing
children or done away with distinctions of duty based upon
a person's status as an invitee, licensee, or trespasser.
Kessler v. Mortenson (Utah 2000), 2000 UT 95, 16 P.3d 1225,
1228; Drumheller, Maryland's Rejection of Attractive
Nuisance Doctrine (1996), 55 Md.L.Rev. 807, 810, and fn.
32.
One of the key elements of the doctrine as defined in the
Restatement is that "the place where the condition exists
is one upon which the possessor knows or has reason to know
that children are likely to trespass." Section 339(a). The
Restatement's version of the attractive nuisance doctrine
balances society's interest in protecting children with the
rights of landowners to enjoy their property. Even when a
landowner is found to have an attractive nuisance on his or
her land, the landowner is left merely with the burden of
acting with ordinary care. A landowner does not
automatically become liable for any injury a child
trespasser may suffer on that land. The requirement of
foreseeability is built into the doctrine. The landowner
must know or have reason to know that children are likely
to trespass upon the part of the property that contains the
dangerous condition. See Section 339(a). Moreover, the
landowner's duty "does not extend to those conditions the
existence of which is obvious even to children and the risk
of which should be fully realized by them." Id. at Comment
i. Also, if the condition of the property that poses the
risk is essential to the landowner, the doctrine would not
apply: "The public interest in the possessor's free use of
his land for his own purposes is of great significance. A
particular condition is, therefore, regarded as not
involving unreasonable risk to trespassing children unless
it involves a grave risk to them which could be obviated
without any serious interference with the possessor's
legitimate use of his land." Id. at Comment n.
Land occupiers have a duty to exercise ordinary care to
avoid any reasonably foreseeable risk of harm created by
artificial conditions to children trespassing on the land.
A child trespasser is defined: generally children above the
age of fourteen do not qualify. The child must be so
immature as to be unable to recognize the danger involved.
The nuisance need not attract the child onto the property.
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