Bennett v. Stanley
92 Ohio St. 3d 35
Procedural History
• Plaintiff, husband and father, filed a wrongful death and personal injury action against defendants, homeowners, in his capacity as administrator of his wife and son’s estates and as custodial parent. The trial court granted defendants’ motion for summary judgment, and father appealed. The Court of Appeals for Washington County (Ohio) affirmed the trial court’s judgment, and the state supreme court granted leave to appeal.
Facts
• Homeowners purchased a home with a swimming pool. The pool was enclosed by fencing and a brick wall, and was covered by a tarp. Homeowners removed the tarp and fencing on two sides of the pool, and although they drained the pool, they allowed rainwater to collect in the pool to a depth of over six feet. The pool became a pond. It contained no ladders, the sides were slick with algae, and frogs and tadpoles lived in the pool. Plaintiff’s family rented the house next to homeowners several months after homeowners purchased their house. Plaintiff was married and the father or stepfather of three young children. Homeowners were aware that children lived next door and evidence showed that there was some fencing between the properties, but with an eight-foot gap. In March 1997, plaintiff arrived home to find his stepson and wife unconscious in homeowners’ pool. Both later died.
• The state supreme court used this case to adopt the attractive nuisance doctrine as the law of Ohio and also held that an adult who attempted to rescue a child from an attractive nuisance assumed the status of the child and was owed a duty of ordinary care by a property owner.
Rule
• The attractive nuisance doctrine applies where an artificial condition on a property owner’s land creates an unreasonable risk of harm to trespassing children, who, because of their youth, o not realize the danger of the condition.
Application
• Ohio has long recognized a range of duties for property owners vis-a-vis persons entering their property. Currently, to an invitee the landowner owes a duty to exercise ordinary care and to protect the invitee by maintaining the premises in a safe condition. To licensees and trespassers, on the other hand, a landowner owes no duty except to refrain from willful, wanton, or reckless conduct which is likely to injure the licensee or trespasser
• The Supreme Court of Ohio has consistently held that children have a special status in tort law and that duties of care owed to children are different from duties owed to adults. The amount of care required to discharge a duty owed to a child of tender years is necessarily greater than that required to discharge a duty owed to an adult under the same circumstances. This is the approach long followed by the Supreme Court of Ohio and there is no reason to abandon it. Children of tender years, and youthful persons generally, are entitled to a degree of care proportioned to their inability to foresee and avoid the perils that they may encounter. The same discernment and foresight in discovering defects and dangers cannot be reasonably expected of them, that older and experienced persons habitually employ; and therefore the greater precaution should be taken, where children are exposed to them
• Recognizing the special status of children in the law, the Supreme Court of Ohio has even accorded special protection to child trespassers by adopting the “dangerous instrumentality” doctrine. The dangerous instrumentality exception to nonliability to trespassers imposes upon the owner or occupier of a premises a higher duty of care to a child trespasser when such owner or occupier actively and negligently operates hazardous machinery or other apparatus, the dangerousness of which is not readily apparent to children.
• Elements such as knowledge of children’s presence, the maintenance of a potentially dangerous force, and an exercise of care by the owner commensurate with the danger are a part of the attractive nuisance doctrine in most states.
• Under the attractive nuisance doctrine, a possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon 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, (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, (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, (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.
• The attractive nuisance doctrine will not extend tort liability to the owner of a residential swimming pool where the presence of a child who is injured or drowns therein is not foreseeable by the property owner.
• One of the key elements of the attractive nuisance doctrine is that the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass.
• The differences in duty a landowner owes to the different classes of users are not abandoned. The court further recognize that children are entitled to a greater level of protection than adults are. The “distinctions without differences” between the dangerous instrumentality doctrine and the attractive nuisance doctrine are removed. Whether an apparatus or a condition of property is involved, the key element should be whether there is a foreseeable, unreasonable risk of death or serious bodily harm to children
• The attractive nuisance doctrine balances society’s interest in protecting children with the rights of landowners to enjoy their property. Even when a landowner is found to have an attractive nuisance on his land, the landowner is left merely with the burden of acting with ordinary care. A landowner does not automatically become liable for any injury a child trespasser may suffer on that land.
• The requirement of foreseeability is built into the attractive nuisance doctrine. The landowner must know or have reason to know that children are likely to trespass upon the part of the property that contains the dangerous condition. Moreover, the landowner’s duty does not extend to those conditions the existence of which is obvious even to children and the risk of which should be fully realized by them. If the condition of the property that poses the risk is essential to the landowner, the doctrine would not apply.
Holding
• The state supreme court reversed the intermediate appeals court’s judgment and remanded the case to the trial court.
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92 Ohio St. 3d 35
Procedural History
• Plaintiff, husband and father, filed a wrongful death and personal injury action against defendants, homeowners, in his capacity as administrator of his wife and son’s estates and as custodial parent. The trial court granted defendants’ motion for summary judgment, and father appealed. The Court of Appeals for Washington County (Ohio) affirmed the trial court’s judgment, and the state supreme court granted leave to appeal.
Facts
• Homeowners purchased a home with a swimming pool. The pool was enclosed by fencing and a brick wall, and was covered by a tarp. Homeowners removed the tarp and fencing on two sides of the pool, and although they drained the pool, they allowed rainwater to collect in the pool to a depth of over six feet. The pool became a pond. It contained no ladders, the sides were slick with algae, and frogs and tadpoles lived in the pool. Plaintiff’s family rented the house next to homeowners several months after homeowners purchased their house. Plaintiff was married and the father or stepfather of three young children. Homeowners were aware that children lived next door and evidence showed that there was some fencing between the properties, but with an eight-foot gap. In March 1997, plaintiff arrived home to find his stepson and wife unconscious in homeowners’ pool. Both later died.
• The state supreme court used this case to adopt the attractive nuisance doctrine as the law of Ohio and also held that an adult who attempted to rescue a child from an attractive nuisance assumed the status of the child and was owed a duty of ordinary care by a property owner.
Rule
• The attractive nuisance doctrine applies where an artificial condition on a property owner’s land creates an unreasonable risk of harm to trespassing children, who, because of their youth, o not realize the danger of the condition.
Application
• Ohio has long recognized a range of duties for property owners vis-a-vis persons entering their property. Currently, to an invitee the landowner owes a duty to exercise ordinary care and to protect the invitee by maintaining the premises in a safe condition. To licensees and trespassers, on the other hand, a landowner owes no duty except to refrain from willful, wanton, or reckless conduct which is likely to injure the licensee or trespasser
• The Supreme Court of Ohio has consistently held that children have a special status in tort law and that duties of care owed to children are different from duties owed to adults. The amount of care required to discharge a duty owed to a child of tender years is necessarily greater than that required to discharge a duty owed to an adult under the same circumstances. This is the approach long followed by the Supreme Court of Ohio and there is no reason to abandon it. Children of tender years, and youthful persons generally, are entitled to a degree of care proportioned to their inability to foresee and avoid the perils that they may encounter. The same discernment and foresight in discovering defects and dangers cannot be reasonably expected of them, that older and experienced persons habitually employ; and therefore the greater precaution should be taken, where children are exposed to them
• Recognizing the special status of children in the law, the Supreme Court of Ohio has even accorded special protection to child trespassers by adopting the “dangerous instrumentality” doctrine. The dangerous instrumentality exception to nonliability to trespassers imposes upon the owner or occupier of a premises a higher duty of care to a child trespasser when such owner or occupier actively and negligently operates hazardous machinery or other apparatus, the dangerousness of which is not readily apparent to children.
• Elements such as knowledge of children’s presence, the maintenance of a potentially dangerous force, and an exercise of care by the owner commensurate with the danger are a part of the attractive nuisance doctrine in most states.
• Under the attractive nuisance doctrine, a possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon 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, (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, (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, (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.
• The attractive nuisance doctrine will not extend tort liability to the owner of a residential swimming pool where the presence of a child who is injured or drowns therein is not foreseeable by the property owner.
• One of the key elements of the attractive nuisance doctrine is that the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass.
• The differences in duty a landowner owes to the different classes of users are not abandoned. The court further recognize that children are entitled to a greater level of protection than adults are. The “distinctions without differences” between the dangerous instrumentality doctrine and the attractive nuisance doctrine are removed. Whether an apparatus or a condition of property is involved, the key element should be whether there is a foreseeable, unreasonable risk of death or serious bodily harm to children
• The attractive nuisance doctrine balances society’s interest in protecting children with the rights of landowners to enjoy their property. Even when a landowner is found to have an attractive nuisance on his land, the landowner is left merely with the burden of acting with ordinary care. A landowner does not automatically become liable for any injury a child trespasser may suffer on that land.
• The requirement of foreseeability is built into the attractive nuisance doctrine. The landowner must know or have reason to know that children are likely to trespass upon the part of the property that contains the dangerous condition. Moreover, the landowner’s duty does not extend to those conditions the existence of which is obvious even to children and the risk of which should be fully realized by them. If the condition of the property that poses the risk is essential to the landowner, the doctrine would not apply.
Holding
• The state supreme court reversed the intermediate appeals court’s judgment and remanded the case to the trial court.
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