Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
mature years and experience that they would measure the depth (as the average adult who could
not swim would do) before entering the water.
The jury found not only that the pit, or pool, was attractive to children, but that it was
dangerous, and did attract to it the McLaughlin child. It was found in answer to one special issue
that the pit was unusually attractive and in answer to a separate issue that it was dangerous to
children. That it was dangerous to children is not open to question under the record. . . .
The following features of the facts and circumstances of the case are determinative of the
correctness of the action of the Court of Civil Appeals in affirming the trial court’s judgment: (a)
the place where the condition was maintained was one upon which the possessor knew or should
have known that small children would likely frequent the place and play about it; (b) the condition
was one of which the possessor knew, or should have known involved an unreasonable risk of
death or serious bodily harm to such children; (c) the child, because of its tender years, did not
realize the risk involved in going into the pool; and (d) the utility, if any, to Mr. Banker of
eliminating the danger was slight as compared to the probability of injury resulting therefrom. . . .
We overrule all of the points of error presented in the application of petitioner and affirm
the judgment of the Court of Civil Appeals which affirms that of the trial court. It is so ordered.
Note
1. Attractive nuisances. As originally formulated, the traditional rule sharply limited the
ability of injured non-invitees to recover from the occupiers and owners of land. Over time courts
carved out exceptions to the traditional rule’s rigid formula. Perhaps the biggest exception is the
one the courts have created for child trespassers. Under the so-called “attractive nuisance”
doctrine, a landowner can be held liable for injuries to a child trespasser if those injuries were
caused by an “attractive” artificial hazard on the landowner’s property. The theory is that when a
landowner maintains a hazard on his premises that he knows some children will find alluring, he
impliedly invites those children to trespass. The child trespassers, then, become the equivalent of
invitees, and so the landowner owes them a duty of reasonable care.
Many jurisdictions have adopted the definition of attractive nuisance laid out in Section
339 of the Restatement (Second) of Torts (1965). To satisfy the Restatement’s definition of an
attractive nuisance, the following five conditions must be met: (1) the hazard must be located in
an area where the landowner knows or should know that children are likely to trespass; (2) the
landowner must know (or have reason to know) that the hazard poses a serious risk of death or
bodily harm to such children; (3) the child trespassers must not appreciate the danger posed by the
hazard; (4) the risk that the hazard poses to child trespassers must outweigh the hazard’s utility to
the landowner and the burden of eliminating the hazard; and (5) the landowner must fail to
exercise reasonable care to eliminate or mitigate the hazard. In addition, the hazard must be an
artificial condition; a natural condition such as a stream typically cannot be an attractive nuisance.
See, e.g., Fitch v. Selwyn Village, 234 N.C. 632 (1951) (holding that a stream is not an attractive
nuisance).
Courts have found a wide array of hazards to be attractive nuisances. Some of the earliest
attractive nuisance cases involved unsecured railroad turntables. In Barrett v. Southern Pacific
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