Organizing a Legal Argument

Excerpts from Cases on Attractive Nuisance

During our first classes, we will talk about a potential claim of our hypothetical clients, Lissa Hall and her parents, against a local construction company, CCI Developments. Lissa was recently seriously injured while climbing on a dirt pile in a construction site. Your supervising attorney has suggested that she may have a claim for attractive nuisance, and she has given you the following cases to review before you discuss the potential claim in further detail.

These are fictitious cases, though the format of the citations would be accurate in North Dakota.

McDaniels v. Lanier,198 N.W.2d 777 (N.D. 1996).

*779 A natural pond lay behind a house located on two acres of property. The pond was visible to any passerby, and no fence prevented access. A child saw the pond and decided to swim in it. The child suffered abdominal cramps and drowned.

An owner who has reason to know that children are likely to trespass is liable, under the doctrine of attractive nuisance, for certain injuries sustained by a child if, among other things, the cause of the injuries is an artificial condition created by the owner. Newcomb v. Roberts, 111 N.W.2d 22, 25 (N.D. 1992). In this case, however, the condition that caused the injury was a naturally occurring pond, which is not an artificial condition.

While *780 landowners have a duty to protect trespassing children from artificially created conditions on their property, they do not have the duty to protect trespassing children from naturally occurring conditions. Id. Such a duty would often require landowners to take unreasonable or impossible actions such as fencing off huge tracts of land. The situation changes when a landowner undertakes to create a condition; then the owner must take measures to protect trespassing children from the artificial condition. Because the injury in this case occurred due to a natural condition, the owner here is not liable for the injuries to the trespassing child. Reversed.

Newcomb v. Roberts,111 N.W.2d 22 (N.D. 1992).

*24 This case arises under the common law doctrine of attractive nuisance. The lower courts decided that the landowner was liable. We affirm.

The landowner had a swimming pool in his backyard. There was no fence surrounding the pool, and it was unshielded from view. A child visiting next door and playing hide-and-seek came into the backyard in search of a hiding place. She hid behind a utility shack for a while, but began to wonder whether her friends were still looking for her. She decided to go investigate the status of the game. As she was walking through the natural landscaping alongside the pool in the backyard, she accidentally fell into *25 the pool and suffered serious injury. She brought suit against the property owner under the doctrine of attractive nuisance.

A landowner is liable for physical harm to trespassing children under the doctrine of attractive nuisance if the following conditions are met: (1) the injury is caused by an artificial condition; (2) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass; (3) the risk posed by the condition is one that children, because of their youth, will not realize; and (4) the landowner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. Hicks v. Bell, 88 N.W.2d 125, 126 (N.D. 1977).

First, the swimming pool was an artificial condition. It was made by humans; it did not occur naturally. Even though the pool area was designed and landscaped to resemble a natural pond, the swimming pool existed only because of human action. Additionally, this landowner should have known that neighborhood children were likely to trespass in nearby yards, especially those without fences or shrubs to discourage them, and that these children would not appreciate the risks posed by a swimming pool. The landowner did not enclose the pool in a fence or take any steps to shield the pool from view. Thus, the landowner is liable for the child’s injuries.

Smith v. Pave the Panhandle, 143 N.W.2d 997 (N.D. 1994).

*999 The trial court allowed recovery, and defendant appealed on two issues. . . . Regarding the second issue, *1001 the attractive nuisance doctrine allows recovery only in situations where the defendant knows that children are likely to trespass and where the trespassing children are too young to appreciate the danger they will encounter. Eggers v. Sims, 22 F. Supp. 2d 333, 336 (D. N.D. 1990). A construction company should know that children are likely to trespass on construction sites. This child was only seven years old, which is too young to appreciate the dangers of a construction site. Affirmed.

Bunsa v. Construction, Inc.,199N.W.2d 333 (N.D. 1996).

*335 Renee Bunsa wandered from her family’s vacation cottage onto property owned by Construction, Inc. The property contained a cement mixer truck. Renee climbed on the truck, slipped, and then fell, suffering serious injury. She sued under the doctrine of attractive nuisance. The trial court granted recovery following a bench trial, and we affirm.

Under attractive nuisance, a landowner is liable for injury to children when the injury is caused by an artificial condition, that condition exists in a place where children are likely to trespass, children are unlikely to understand the risk of the condition, and the owner does not use reasonable care to protect children from the danger. Newcomb v. Roberts, 111 N.W.2d 22, 25 (N.D. 1992). It is undisputed that the cement mixer on Construction’s property was an artificial condition, not a natural one. Further, this artificial condition existed on a construction site, a place where Construction knew or should have known that children were likely to trespass. See Smith v. Pave the Panhandle, 143 N.W.2d 997, 1001 (N.D. 1994).

Turning to the disputed issues, *336Renee, due to her youth, would be unlikely to realize the danger of the cement mixer. The Smith case held that a seven-year-old boy was unable to appreciate the danger of a construction site. 143 N.W.2d at 1001. In another case, a seventeen-year-old child was held too old to recover under the attractive nuisance doctrine for injuries sustained at a construction site because she could appreciate the risk. Rodan v. Trent, Inc., 143 N.W.2d 554, 557 (N.D. 1994). Because Renee is only eight years old, it is unlikely that she was old enough to appreciate the risk involved in climbing on the cement mixer. No facts indicate that she is exceptionally bright or mature, or that she had personal experience with the dangers of large equipment and trucks. Thus, she can meet this element.

*337 Finally, Construction failed to use reasonable care to eliminate the danger the cement mixer presented to trespassing children. The landowner in Newcomb was held liable for the injuries to a child who fell in a pool that was in open view. Neither the pool nor the backyard was enclosed by a fence to keep children out. Newcomb, 111 N.W.2d at 25. Similarly, Construction did not fence the construction area or the cement mixer, or prevent the mixer from being seen. The court is not convinced by Construction’s argument that the “construction zone” signs placed on the roadways leading to the property were a reasonable attempt to warn trespassers about the dangers on the property. For children too young to read those words, this step offered little protection. Also, the lack of specific warnings on the signs and the fact that Construction’s property is accessible from adjoining land weigh against this argument. Construction should have put up temporary fences, and thus did not use reasonable care to eliminate the danger the cement mixer presented to children.

Rodrigues v. TNT,120 N.W.2d 555 (N.D. 1993).

*557Plaintiff sued TNT under the attractive nuisance doctrine. Plaintiff cannot recover because, that doctrine is available only to children who, because of their youth, are not able to appreciate the danger involved in trespassing on property containing an artificial condition. Hicks v. Bell, 88 N.W.2d 123, 125 (N.D. 1977). Plaintiff was just ten years old at the time of his accident. He was, however, familiar with the fire pit into which he fell because of his father’s line of work. His father testified that he had often urged the boy to stay away from the fire pits, and admitted that he had heard the boy warning others to stay away. Dismissal affirmed.

Adapted from Linda H. Edwards, Legal Writing: Process, Analysis, and Organization 69-70 (3d ed. Aspen Publishers 2002) (permission granted by the author).

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