Mastering Torts: A Student's Guide to the Law of Torts, Sixth Edition by Vincent R. Johnson

Mastering Torts: A Student's Guide to the Law of Torts, Sixth Edition by Vincent R. Johnson

Author:Vincent R. Johnson
Language: eng
Format: mobi
ISBN: 9781531009137
Publisher: Carolina Academic Pr
Published: 2018-07-31T21:00:00+00:00


4. The Attractive-Nuisance Doctrine

Courts frequently hold that a possessor owes a duty of reasonable care to trespassers and licensees who are children. The touchstone for analysis is §339 of the Restatement, Second, of Torts, which is entitled “Artificial conditions highly dangerous to trespassing children.” That section has been widely influential in the development of the law, and it is often referred to as the attractive-nuisance doctrine. (In fact, the Restatement provision is much broader and more flexible than the original rule which imposed liability for an attractive nuisance; under the Restatement standard, the condition giving rise to liability need neither attract the child onto the property nor be a nuisance, as that term is defined in the law of torts (see Chapter 20).)

Citing the first Restatement, the court in Banker v. McLaughlin, 208 S.W.2d 843 (Tex. 1948) (SATL 6th ed., p. 605), held that a housing developer was liable for the death of a five-year-old child who had drowned in an abandoned pit of water. The pit had previously been a site for excavation of dirt for street grading purposes.

By its terms, §339 deals only with conditions on the land; ordinary trespass rules may apply with respect to activities of the defendant. So too, if the condition is natural, as opposed to artificial (the result of human effort), many courts hold there is no liability to trespassing children. Some courts also say that there can be no liability for “common hazards,” such as drowning in water or being burned by fire. The thought is that if the child is old enough to be abroad in the community, the child is old enough to appreciate and guard against such dangers. However, the clear tendency is to discard this concept as a fixed rule and to include the commonness of the hazard along with other factors as part of a larger calculus. Literally, §339 applies only to trespassers; presumably, a child who is a licensee or invitee is entitled to at least as much protection.

As a result of adopting a unitary standard, the third Restatement contains no special rules governing “known,” “constant,” or “child” trespassers. In each instance, a possessor must exercise reasonable care under the circumstances.



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