Bennett v. Stanley

Supreme Court of Ohio · 2001 · Torts

TortsNegligencePremises liabilityAttractive nuisanceChild trespassersRescue doctrinechild trespasserartificial condition

Facts

The Stanleys owned a residential swimming pool that had gone unused for years, allowed rainwater to accumulate to a depth of over six feet, removed a tarp and portions of fencing, and left the pool pond-like, algae-covered, and without ladders. They knew the Bennetts lived next door with young children and had seen the children outside unsupervised, but posted no warning or no-trespassing signs. One afternoon, five-year-old Chance apparently went to the pool to look at frogs and fell in, and his mother, Cher, apparently drowned trying to save him. Rickey Bennett sued for wrongful death and personal injury, alleging negligent maintenance of the pool.

Issue

Whether a landowner owes a child trespasser only the limited duty owed to trespassers generally or instead may be liable under the attractive nuisance doctrine for harm caused by an artificial condition on the land. The court also considered whether an adult who enters to rescue a child from such a condition is owed ordinary care.

Rule

A possessor of land is subject to liability for physical harm to child trespassers caused by an artificial condition on the land if: (a) the possessor knows or has reason to know children are likely to trespass where the condition exists; (b) the possessor knows or has reason to know of the condition and realizes or should realize it involves an unreasonable risk of death or serious bodily harm to children; (c) because of their youth, the children do not discover the condition or realize the risk; (d) the utility of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children; and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children. An adult who attempts to rescue a child from an attractive nuisance assumes the child's status and is owed a duty of ordinary care by the property owner.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Dayton, Omar and Tessa Reed keep an old, man-made koi pond in their backyard with steep concrete sides and murky water. They know children from the adjoining duplex, including six-year-old Lina Ortiz, regularly squeeze through a broken section of fence near the pond to chase insects, but they do nothing to block access. Lina wanders over, falls in, and is badly injured.

Under the majority rule, what is the strongest argument that the Reeds owed Lina a duty of ordinary care despite her trespasser status?

Explanation. The majority adopted Restatement § 339. A possessor may be liable to a child trespasser harmed by an artificial condition when, among other things, the possessor knows or has reason to know children are likely to trespass where the condition exists. The doctrine does not impose strict liability, and it does not abolish all status distinctions or make landowners insurers.