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.
---
Interested in learning how to get the top grades in your law school classes? Want to learn how to study smarter than your competition? Interested in transferring to a high ranked school? 
