• Bennett v. Stanley: Landowners' Exposure to Liability for Injuries by Trespassing Children
  • May 19, 2003 | Author: Michael Shanabruch
  • Law Firm: Buckingham, Doolittle & Burroughs, LLP - Akron Office
  • Generally, a landowner owes no duty to trespassers other than to refrain from willful, wanton or reckless conduct that is likely to injure the trespassers. Under this general rule, a landowner is not required to protect trespassers from dangers posed by swimming pools or other artificial conditions on his land.

    However, the Ohio Supreme Court recently held that a landowner who maintains an attractive nuisance on his property is required to exercise ordinary care to protect children who trespass from foreseeable and unreasonable risk of death or serious bodily harm.

    In Bennett v. Stanley (2001), 92 Ohio St.3d 35, a five-year-old boy died when he fell into his neighbors' swimming pool. The pool, which had not been used in several years, was essentially a stagnant pond in which tadpoles, frogs, and snakes were found. The pool was neither surrounded by a fence nor covered by a tarp. Moreover, the pool contained no ladders and its sides were slippery due to an accumulation of algae. The child apparently had been looking at the frogs when he fell in. Under these circumstances, the Supreme Court held that the landowner could be found liable for the death of the child according to the attractive nuisance doctrine.

    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 the land if:

    1. 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

    2. 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

    3. 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

    4. 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

    5. The possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children."

    The Supreme Court explained that this doctrine "harmonizes the competing societal interests of protecting children and preserving property rights." Thus, while it imposes liability upon the landowner for accidents that are reasonably preventable, it does not make the landowner an absolute insurer of the safety of trespassing children. For instance, the doctrine does not apply where the harm is unforeseeable, the dangerous condition is so open and obvious that even a child would appreciate the danger, or the dangerous condition is essential to the landowner's legitimate use of the property.

    The Supreme Court further held that the landowner could be liable for the death of the child's mother, who died in an unsuccessful rescue attempt. The court explained that while the attractive nuisance doctrine does not ordinarily apply to adults, it may be applied where an adult is injured in an attempt to rescue a child who is imperiled by an artificial condition maintained by the landowner.