Tuesday, October 25, 2011

Merrill v. Central Maine Power Company case brief (attractive nuisance doctrine)

Merrill v. Central Maine Power Company

628 A. 2d 1062 - Me: Supreme Judicial Court 1993 
Subject: Attractive nuisance doctrine.

The 9 year old entered defendant's property to fish, caught an eel, climbed fence, attempted to cook eel, was shocked and burned as a result.


Attractive Nuisance Doctrine:

  • If the child is fully aware of the condition, understands the risk it carries, and is quite able to avoid it, he stands in no better position than an adult with similar knowledge/understanding. 
  • A landowner is not required to keep his land free from conditions which even young children are likely to observe and the full extent of risk involved in which they are likely to realize.
The court held that the plaintiff knew that at time of the accident (1) the purpose of fence, (2) propensities of electricity, (3) that he was careful to not touch wire, (4) “dumb idea”


Summary judgement was properly granted, the plaintiff can not recover in this case.

On the exam:
This issue tends to come up on a final exam as a child that is enters a person's land and is injured.  Ask: Is the child fully aware of the condition of the property and the risk it carries (is it apparent) and is the child able to avoid it? 

If yes, the child is in the same position as an adult plaintiff that possesses similar knowledge and understanding of the property and the risk/danger at hand. 

If the child/individual can observe the conditions of the property, the landowner is not liable.  A landowner is not required to keep his land free from conditions that an individual is likely to observe if the full risk is realizable. 

Read full text: http://scholar.google.com/scholar_case?case=10818750987570060169&hl=en&as_sdt=6&as_vis=1&oi=scholarr

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1 comment:

  1. Douglas Merrill appeals from the summary judgment entered in the Superior Court (York County, Fritzsche, J.), in favor of Central Maine Power Company (CMP), in Merrill's action seeking damages for personal injuries allegedly caused by an attractive nuisance located on CMP's property. 1063*1063 We affirm the judgment of the Superior Court.

    On June 13, 1976, Merrill, then nine years of age, entered CMP's property in South Berwick to fish in the Salmon Falls River. After catching an eel in the river, Merrill walked to the nearby CMP electrical sub-station, climbed the surrounding fence, and attempted to cook the eel by leaning over the top of the fence and placing the eel on a live electrical wire. Merrill received an electric shock and suffered severe burns.

    Merrill's complaint alleges, inter alia, a cause of action under the theory of attractive nuisance.[1] The court granted a summary judgment in favor of CMP, finding that (1) Merrill appreciated the risk at the time of the accident; (2) electrical sub-stations are not, as a matter of law, attractive nuisances; and (3) CMP is immune from liability under the recreational use statute, 14 M.R.S.A. § 159-A (1980 & Supp.1993).[2] This timely appeal followed.

    In Jones v. Billings, 289 A.2d 39 (Me.1972), we incorporated the attractive nuisance doctrine into Maine law by adopting the definition provided in the Restatement (Second) of Torts § 339 (1965):

    A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the 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.

    Jones, 289 A.2d at 42 (quoting Restatement). We will apply a strict interpretation of the Restatement criteria in determining whether a plaintiff has satisfied its burden of establishing the existence of an attractive nuisance. Id. at 43.

    Read more at: http://scholar.google.com/scholar_case?case=10818750987570060169&hl=en&as_sdt=6&as_vis=1&oi=scholarr#sthash.Ear4gvGq.dpuf


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