628 A.2d 1062 (Me. 1993)
PROCEDURAL HISTORY: Plaintiff minor child sought review of an order from the Superior Court, York County (Maine), which entered summary judgment in favor of defendant power company in the minor's action seeking damages for personal injuries allegedly caused by an attractive nuisance located on the power company's property.
FACTS: The minor alleged, inter alia, a cause of action against the power company under the theory of attractive nuisance. The trial court granted a summary judgment in favor of the power company upon finding that the minor appreciated the risk at the time of the accident, that electrical sub-stations were not, as a matter of law, attractive nuisances, and that the power company was immune from liability under state law.
On appeal, the court affirmed the trial court's decision upon finding that the minor appreciated the risk inherent in placing an eel on a live electrical wire surrounding the electrical sub-station.
-In deposition testimony, the minor admitted that, at the time of the accident, he knew (1) that the purpose of the fence surrounding the sub-station was to keep people out; (2) that electricity could both burn and hurt him; (3) that he was careful not to touch the wire himself; and (4) that what he did was a "dumb idea."
-Because the minor was unable to generate a factual issue regarding an indispensable element of the attractive nuisance doctrine, whether he appreciated the risk at the time of the accident, he was conclusively precluded from recovery.
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.
CONCLUSION: The court affirmed the trial court's grant of summary judgment in favor of the power company on the attractive nuisance claim of the minor.
Legal Terms: attractive nuisance, possessor, summary judgment, sub-station, appreciated, electrical, eel, trespassing, fence, wire, matter of law, cause of action, reason to know, deposition, nuisance, discover, adult, burn, river
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