Research Paper on Attractive Nuisance Doctrine

Introduction

An attractive nuisance is anything on a person's land that is enticing and dangerous to children. Its doctrine is exclusion to the US universal rule which states that a property-owner owes no one any duty except to abstain from instigating wanton and willful injury. This doctrine is specifically designed to protect children. It recognizes that children are not mature and thus they are inexpert of appreciating or understanding risks or dangers on the premises. Noteworthy, the canon holds a proprietor liable for harms that youngsters encounter as they trespass on the land.

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Examples of Attractive Nuisance

There are many situations or features on a landowner's property that may make him or her responsible for any harm that may happen to children (Atkinson 1122-1154). Water features such as hot tubs, wells, swimming pools, fountains, and waterfalls among others are examples of things that can entice and injure children. Another category of attractive nuisance includes construction debris like metal piles or lumber. It is also essential to pinpoint that presence of machines on land may attract or entice children to trespass the property. Examples of these machines include bobcats, all-terrain vehicles, lawnmowers, and tractors among others. Other than that, a landowner may be viable if play equipment on his or her property cause injuries to minors. Play equipment may include climbing walls, bounce houses, trampolines, and so on. Also, home appliances like refrigerators, electric irons, and vacuum cleaners may not only pose threats to children but also cause considerable harm to them.

A Child Under Attractive Nuisance Doctrine

It is worthy to note that no cut off exist for defining a child under attractive nuisance doctrine. Normally, the age limit that the court adopts is contingent on the situation presented in the case. However, the main factor for determining a child in an attractive nuisance doctrine is the ability of the minor not only to understand the potential danger that a given situation presents but also to appreciate the risks involved (Atkinson 1122).

Elements of Attractive Nuisance Doctrine

For this doctrine, a thing luring a child is equivalent to inviting the minor to play a hazardous instrumentality. According to Selznick, a landowner must observe reasonable precautions aimed at protecting the child against dangers associated with attraction (47-71). However, is vital to pinpoint that every instrumentality enticing to children is regarded as an attractive nuisance. The elements of this doctrine include:

• There must be an existence of instrumentality or condition that is hazardous in it and has a high probability of causing harm when a child comes in contact with it.
• The condition or instrumentality must be enticing or attractive to children,
• The plaintiff or the child was incapable of comprehending the risks or dangers involved due to age immaturity
• The instrumentality was left exposed or unguarded at places where young children could easily have access to them.
• There was a reasonably feasible and practical way of preventing children from having access to the instrumentality or condition.

Four Real Cases of Attractive Nuisance Doctrine

Idzi v. Hobbs, 186 So. 2d 20 (Fla. 1966)

In this case, E.Daniel Idzi was a petitioner while C.A. Hobbs was the respondent. The factual situation of this case was that Idzi, a minor plaintiff was then only five years and one month old when he sustained injuries from the fire that the defendant had set. It is important to note that the defendant had cleared trees and piled them before setting them on fire. However, rather than guarding the site against invasion or trespass from children playing nearby, the defendant left his property and therefore put the lives of many innocent kids in great danger. Later that day, the minor was bought before his father with his hands severely burned. The minor plaintiff told his father that he slipped and fell on the inferno. However, during trials, the plaintiff's father testified that his son, despite his age, was aware of the dangers of the inferno and even tried to extinguish it.

After deliberation, the jury had a divided opinion on the verdict to be made. Thus, a mistrial was ordered, and as a result, the respondent moved for a final verdict with regards to his initial motion for directed judgment. The defendant's motion was granted, and the verdict entered. The jury unanimously agreed that the minor plaintiff was aware of the existing danger that the fire posed despite his tender age. The court, therefore, ruled in favor of the defendant since the plaintiff failed to prove that the accused was to be held liable for the injury ("Idzi V. Hobbs").

Kessler v. Mortenson, 2000 UT 95 (Utah 2000)

In this case, Patricia Kessler sued Randy Mortenson and CRM Construction on behalf of his son, Eric Kessler. On October 11, 1993, Eric Kessler gained entry in a partially-constructed house and began playing a hide-and-seek game. While he was playing in this partially-constructed house, he accidentally slipped into a hole. Consequently, he injured himself which prompted his mother to sue the house builder, the developer, and the property owner.

The defendants, in this case, moved for a summary verdict on Taylor and Featherstone. They argued that they were not liable to Eric Kessler because he trespassed into private property. They asserted that the doctrine of attractive nuisance obligates landowners to put in place reasonable acre aimed at safeguarding minors from hazardous conditions or situations on their property. Nevertheless, they noted that this particular rule is not applicable in Taylor and Featherstone cases in which children are trespassing residential construction sites are injured. Thus, the defendants argued that they should be entitled to the summary verdict. It is worthy to note that the trial court determined that Eric Kessler was indeed a trespasser. Therefore, the court granted summary verdict for the respondents based on Taylor and Featherstone outcome. Accordingly, the trial court dismissed the claim of the plaintiff and ruled in favor of the defendants ("Kessler, V. Mortenson, et al.").

Nesmith v. Starr, 115 Ga. App. 472 (Ga. Ct. App. 1967)

The tenant and his young so wanted to recover damages resulting from the negligence of the landlord and agents. Admittedly, the landlord and agents had retained qualified possession of leased premises and left them unprotected in areas that kids played. In particular, on August 26, 1964, a corporate agent of Shallowford Apartments, Inc. used a brick cutting machine that was manually-operated to separate bricks. The machine was uncommon around the playing area or the apartment. It, therefore, enticed and attracted the plaintiff as well as other children. That fateful night, the heavy steel blade of the machine fell on the minor plaintiff's hand, making him lose half of his fingers. Thus, Nesmith and other defendants had failed to maintain a safe playing ground for the kids by either warning them of the danger associated with the machine or removing the machine from the site ("Nesmith V. Starr, 115 Ga. App. 472 | Casetext").

In a popular verdict, the court ruled in favor of the plaintiff and cited various instances that the judges believed the defendants failed to exercise reasonable caution and care to protect minors in their property. The jury noted that the defendants owed the minor plaintiff a great duty of care against the brick machine due to his tender age. It is worthy to note that defendant Nesmith, the agent of Shallowford Apartments, Inc., then filed a universal demurrer to the supplication in each act, from verdicts overruling. The popular verdict found out that the overruling was properly done.

Aponte v. Castor, 155 Ohio App. 3d 553 (Ohio Ct. App., Williams County 2003)

This was an appeal from a previous judgment which had granted Michael and Deborah Castor a summary verdict against Teresa and Erica Aponte. Imperatively, Erica Aponte, who was seven years old at that time, had been invited to attend a Thanksgiving dinner at appellees' home on November 27, 1997. After the event ended, Erica went outside in the paddock area for the appellees' horse and crawled beneath an electric fence. Subsequently, the appellees' horse kicked the appellant making her sustain severe injuries. On November 27, 2001, the appellant filed a lawsuit against the defendants alleging negligence. They, therefore, sought compensation for the damages that the horse had caused to Erica. A year later, on November 1 and 5, 2002, appellees filed a complaint against the minor's father, Rafael Aponte, for alleged negligent supervision of their kid.

On November 22, 2002, appellees filed a motion in a bid to get a summary judgment. They argued that Erica was a trespasser for she did not have permission to leave the appellees house or enter into the paddock area in which the horse was grazing. Furthermore, they argued that they only owed the minor a duty of ordinary care, which they believe they never breached. On January 6, 2003, the jury granted appellees a summary judgment and held that the appellant, Erica Aponte, was a trespasser and therefore appellees never owed her any form of ordinary caution and that the attractive nuisance doctrine was inapplicable for this particular case. The appellants appealed to this verdict, and the juror upheld the initial decision or judgment ("Aponte V. Castor, 802 N.E.2D 171, 2003 Ohio 6769, 155 Ohio App. 3D 553 - Courtlistener.Com").

Conclusion

In general, children lack cognitive maturity, and therefore they need protection against harm. Usually, children are attracted and enticed to objects within a landowner's premise which may subject them to hazardous encounters. Attractive nuisance doctrine ensures that children receive adequate protection against such dangers. This doctrine is based on five major elements which must all be applicable for a landowner to be held liable for his or her property. Ever since the doctrine was established, there have been numerous cases regarding it in which plaintiffs have filed lawsuits for damages and compensation against defendants. These cases have either been ruled for or against the plaintiff depending on the ability of the case at hand to meet all the five elements of the attractive nuisance doctrine.

Works Cited

"Aponte V. Castor, 802 N.E.2D 171, 2003 Ohio 6769, 155 Ohio App. 3D 553 - Courtlistener.Com". Courtlistener, www.courtlistener.com/opinion/4001842/aponte-v-castor/. Accessed 4 Dec 2018.

"Idzi V. Hobbs". Justia Law, law.justia.com/cases/florida/supreme-court/1966/34695-0.html. Accessed 4 Dec 2018.

"Kessler, V. Mortenson, et al.". Justia Law, law.justia.com/cases/utah/supreme-court/2000/kessler.html. Accessed 4 Dec 2018.

"Nesmith V. Starr, 115 Ga. App. 472 | Casetext". Casetext.Com, https://casetext.com/case/nesmith-v-starr. Accessed 4 Dec 2018.

Atkinson, Evelyn. "Creating the Reasonable Child: Risk, Responsibility, and the Attractive Nuisance Doctrine." Law & Social Inquiry, vol. 42, no. 4, Fall 2017, pp. 1122-1154.

Selznick, Philip. "Sociology and natural law." The Law and Society Canon. Routledge, 2018. 47-71.