Attractive Nuisance Essay Example for Free

Attractive Nuisance Essay Whether Sherman, under the attractive nuisance doctrine, will likely prevail against Carlisle for multiple injuries he sustained in a fall from wooden steps of a tree house in disrepair while trespassing upon Carlisle’s property when: (1) Carlisle was aware that the neighborhood surrounding his property was populated with children; (2) a severe storm had damaged Carlisle’s property and exposed the previously concealed tree house; (3) Sherman was six years of age at the time of his injury; (4) Carlisle had little incentive to make repairs to the tree house prior to the storm because of its concealment; (5) immediately following the storm, Carlisle made arrangements with a contractor at a higher than average rate to make repairs to his property; and (6) Sherman was enticed to enter Carlisle’s land by construction materials and yellow caution tape and was unaware of the tree house until entering upon the property. Statement of Facts Carlisle has contacted our office seeking advice regarding an action against him for injuries suffered by a neighborhood boy, Sherman, while Sherman was trespassing upon his property. You have asked me to determine whether Sherman can prevail by proving Carlisle liable for his injuries. In 2005, Carlisle purchased â€Å"Fieldstone,† a two-acre estate sixty-five miles southwest of downtown Miami. Carlisle anticipated that his New York based company would expand into southern Florida and that he would eventually settle at Fieldstone. However, due to increased demands from his New York business, Carlisle has rarely spent more than two or three days at a time at Fieldstone, with long stretches in between. The estate, at the time of the incident, had been poorly maintained for quite some time and the backyard was vastly overgrown. Its unkempt condition appealed to Carlisle, however, as he looked forward to clearing the grounds himself. He was likewise intrigued by an abandoned tree house on the property that appeared structurally sound although in need of some repairs to its floorboards and slatted steps. The tree house was completely concealed by decades of overgrown foliage. Furthermore, Carlisle, who valued his privacy, was pleased that the property was protected by a high wooden fence, which concealed the residence, the yard, and the tree house from neighbors and passersby. Because of the tree house’s concealment and the security of the fence, Carlisle decided that the tree house did not require immediate repairs. None of Carlisle’s neighbors were aware of the tree house on his property. In October 2009, Fieldstone was severely damaged by a storm that swept the Florida coast. The back fence was weakened after being jarred by an uprooted tree and high winds stripped away most of the foliage that had concealed the tree house. As a result, the tree house was now visible from within the property, although it was still hidden from outside view. Carlisle made immediate efforts to hire work crews to make repairs. However, due to widespread damage across the greater Miami area, demand for services was extensive and most local contractors were charging very high rates. After contacting several contracting services, Carlisle finally made arrangements with a Broward County contractor, although at a higher than average rate. Less than two weeks after the storm, a subcontractor delivered building materials to Fieldstone and stacked them in the backyard. The work crew would be available in two or three weeks to begin repairs. In the meantime, Carlisle took short-term measures by posting several â€Å"no trespassing† signs conspicuously about the exterior and interior of his property. He also ran yellow caution tape around the tree house and building materials. Carlisle then returned to his business in New York. The next day, Sherman and three other neighborhood boys, all five to six years of age, were playing in an alley behind Carlisle’s property when their ball accidentally crashed into Fieldstone’s weakened back fence, breaking the slats and creating an opening to the yard. The children could see into the yard and were immediately attracted by the yellow caution tape and building materials. Upon entering the yard, they discovered the tree house. The tree house was inaccessible but for a frayed piece of rope that had once been part of a ladder. The rope was beyond the reach of Sherman and the others, so they swung themselves over the lower branches of the tree to reach the lower landing of the tree house. They successfully managed to hoist themselves onto the lower landing from where they began to run along the labyrinth-like walkways and steps in a race to reach the top of the tree house. Sherman was running ahead of the others but tumbled when one of the worn slatted steps splintered and gave way. Sherman fell a long distance to the ground and sustained multiple injuries. Discussion The attractive nuisance doctrine is based on the fundamental fact that children do not possess the same judgment or ability to recognize risk as adults. Johnson v. Wood, 155 Fla. 753, 21 So. 2d (Fla. 1945). Its purpose is to afford the trespassing child, where the elements of the doctrine are met, the same protection, applying the principles of ordinary negligence that would be afforded an invitee on the premises. Martinello v. B P USA, Inc., 566 So. 2d 762 (Fla. 1990). The burden of proof is upon the plaintiff to demonstrate that each element of the attractive nuisance doctrine is satisfied. Id. at 764. If the plaintiff proves each element of the doctrine, the defendant is then liable to the plaintiff for injuries caused by an artificial condition on the defendant’s property. Id. To establish attractive nuisance, a plaintiff must prove each of the following: (1) the place where the condition exists is one which the possessor knows or has reason to know that children are likely to trespass; (2) the condition is one in which the possessor knows or has reason to know and realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children; (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; (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; (5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children; and (6) the property owner entices the children upon the dangerous premises. Id. at 763. In this case, Sherman can easily prove that Carlisle knew or should have known that after the storm, neighborhood children were likely to trespass upon Fieldstone and that the tree house on the property was unsafe for children. Sherman can also prove that he was unaware of the risk involved in climbing the tree house because of his young age. It is unlikely, however, that Sherman can prove Carlisle’s burden to eliminate the danger was minor in comparison with the risk to children of climbing the tree house or that Carlisle failed to exercise reasonable care to eliminate the danger. And it is highly unlikely Sherman can prove he was enticed by the tree house to enter Carlisle’s property. A. Children Likely to Trespass To establish the likelihood of trespass, a plaintiff must show that a land owner knows or should know that the premises are in a neighborhood where young children â€Å"of immature years† play and that they will be attracted to the premises. Carter v. Livesay Window Co., 73 So. 2d 412 (Fla. 1954). Sherman can argue that Carlisle’s awareness of children within his neighborhood is sufficient for a court to find this element met. Furthermore, although Carlisle’s property was not under construction per se, it was under repair; in Carter, the court held that â€Å"in a residential neighborhood†¦it is common knowledge that children are as prone to play around houses under construction as monkeys prone to climb trees.† Id. at 413. Moreover, courts have found that the mere existence of children in a neighborhood where a dangerous condition exists is sufficient to satisfy this element. In re Estate of Starling, 451 So. 2d 518 (Fla. 5th DCA 1984); Ed Ricke Sons, Inc.v. Green, 609 So. 2d 508 (Fla. 1992). B. Unreasonable Risk to Children A plaintiff can satisfy the risk element by showing that a possessor of land knows or should know that a condition involves an unreasonable risk of death to children. In re Estate of Starling, 451 So. 2d at 518. In In re Estate of Starling, the defendant was aware that children frequently trespassed upon his property to swim in an excavated pond. Id. The defendant in that case left an underwater pump running that caused the plaintiff to drown. Id. at 519. Because the pump was concealed within the pool and the plaintiff was unaware of its existence, the court held that the pump constituted a concealed danger equivalent to a â€Å"man-made trap.† Id. Sherman can easily prove that Carlisle was aware of the dilapidated condition of the tree house and that it was unsafe for children. Sherman can further argue that the worn and slatted steps of the tree house were as deadly to children as â€Å"an extremely dangerous intake hose of sufficient size and strength to catch and hold a swimmer [underwater, drowning him].† Id. C. Inability to Realize Risk Because of Age A central objective of the attractive nuisance doctrine is to protect children of â€Å"tender years† by considering their inability to appreciate danger. Johnson, 155 Fla. 753, 21 So. 2d at 756. â€Å"[T]here is no definite age beyond which the [attractive nuisance doctrine] does not apply†¦however, as the child’s age increases, the conditions become fewer in which there can be recovery.† Lister v. Campbell, 371 So. 2d 136 (Fla. 1st DCA 1979). In Lister, the court concluded that the plaintiff, aged fourteen years and eleven months, possessed sufficient ability to understand and appreciate the danger involved in diving into two feet of water. Id. at 137. Given Sherman’s young age, he can easily prove that he was unable to realize the danger of climbing the tree house. Moreover, Sherman can prove that the warning signs Carlisle placed about his property were of no effect because in Nunnally v. Miami Herald Publ’g Co., 266 So. 2d 78 (Fla. 3d DCA 1972), the court noted that written warnings were of virtually no consequence to a plaintiff two years older than Sherman. Id. D. Burden of Eliminating Dangerous Condition Sherman will have difficulty proving that Carlisle’s burden to eliminate the danger of the tree house was slight as compared with its risk to trespassing children. Prior to the storm, Fieldstone was protected by a high perimeter fence that prevented trespass upon the property. In addition, because the tree house was concealed by foliage, no one within Carlisle’s neighborhood was aware of its existence. Given Carlisle’s busy schedule, it would have been inconvenient for him to make repairs that he regarded to be of low-priority. Therefore, Carlisle’s burden to eliminate the danger was far greater than the risk it presented to children based on a remote possibility of trespass. However, Carlisle’s burden shifted once the fence was damaged and the tree house was exposed by the storm. Carlisle then took immediate measures to eliminate the risk. By contrast, in Ed Ricke Sons, Inc., the Dade County Housing Authority was aware that over an eight-year period, a constantly renewed pool of scalding hot water flowing from a defective hot water in a public housing project was allowed to remain in an outdoors location easily accessible to children. Ed Ricke Sons, Inc. v. Green, 609 So. 2d at 508. This condition ultimately led to a child suffering burns over his entire body. Id. at 509. Analyzing this cost/benefit element, the court concluded that â€Å"[t]he cost of eliminating this nuisance would have been slight – certainly no more than the cost of installing a new hot water heater – compared with the enormous costs of caring for [the plaintiff child].† Id. E. Failure to Exercise Reasonable Care A land owner has a duty to take reasonable precautions to protect children from injury when a dangerous condition exists upon his property. In re Estate of Starling, 451 So. 2d at 521. Failure to exercise such care makes the land owner subject to liability for bodily harm to the trespassing child. Id. In this case, Carlisle arranged for services with a contractor at a higher than average rate to insure that repairs were made as soon as possible. Additionally, Carlisle made good faith efforts to warn potential trespassers by placing â€Å"keep out† signs conspicuously about his property. Given these facts, it is unlikely Sherman can prove that Carlisle failed to exercise reasonable care. F. Enticement Under the attractive nuisance doctrine, a child must be allured upon the premises of a land owner. Martinello, 566 So. 2d at 763; Concrete Constr., Inc., of Lake Worth v. Petterson, 216 So. 2d 223 (Fla. 1968). Should a child simply wander upon the property of another and suffer injury, absent an allegation that he was attracted by a condition existing within it, this element would not be met. Concrete Constr., Inc., of Lake Worth, 216 So. 2d at 222. Stated another way, if a child is injured by a condition other than the one that allured him to the premises and he is not allured to the condition causing his injury, this element cannot be satisfied. Nunnally, 266 So. 2d at 78. In Nunnally, a minor trespasser was chasing other children around a newspaper publishing building when he slipped and got his arm caught in a conveyor belt, resulting in injury. Id. The court rejected the boy’s claim under the attractive nuisance doctrine because â€Å"[at] the time of the injury, the min or plaintiff was not allured or attracted to†¦the conveyor belt.† Id. Moreover, it does not matter if a child is injured by a condition to which he is allured when that condition is different from the one that initially enticed him onto the property. Johnson v. Bathey, 376 So. 2d 848 (Fla. 1979). In Johnson, a child was allured to premises to collect surplus vegetables, but once upon the property, his attention shifted to an irrigation ditch wherein he was subsequently injured by a concealed pump. Id. The court rejected the boy’s claim because â€Å"[t]here is no doubt that [the child] was not allured onto the premises by the existence of the pump, because [he] didn’t even know about the pump until [he] had traveled some distance onto the property.† Id. In this case, Sherman was attracted onto Fieldstone by yellow caution tape and construction materials. The tree house, though exposed after the storm, was not visible from outside the property. Therefore, Sherman could not possibly have been attracted by something he could not see. Sherman was unaware of the tree house until entering upon the property; it follows naturally that he could not have been enticed by it. Since Sherman’s injuries resulted from running along the weathered steps of the tree house and not from running around the construction materials or caution tape, he will have great difficulty proving that this element is met. Sherman may argue that the tree house constitutes a concealed danger within Carlisle’s property. This argument, however, fails to satisfy the enticement element because concealed dangers must be contained within the condition of allurement. Mueller v. South Florida Water Management Dist., 620 So. 2d 789 (Fla. 4th DCA 1993). In Mueller, the plaintiff was injured when he ran into a concealed guardrail while riding his dirt bike on the landowner’s property. Id. In this case, the tree house caused Sherman’s injuries, but the tree house was not the condition that allured him to enter the premises nor was it a danger concealed within the caution tape and building materials, which were the conditions that initially allured him onto the property. Conclusion Sherman is unlikely to prevail against Carlisle under the attractive nuisance doctrine because he will be unable to prove each of the six elements. Sherman can easily prove that Carlisle was aware that neighborhood children were likely to trespass upon Fieldstone after the storm, that the exposed tree house was an unreasonable risk to children, and that he was unable to realize the risk of climbing the tree house because of his young age. However, Sherman will have difficulty proving that Carlisle’s utility to maintain the tree house was slight, especially since Carlisle’s burden to eliminate the danger increased by way of a natural means – the storm – as opposed to his own neglect. Furthermore, Sherman will have difficulty proving that Carlisle failed to exercise reasonable care due to the fact that he took immediate action to eliminate the danger, even incurring the financial hardship of voluntarily agreeing to a higher than average rate with a contractor to ensure the danger was eliminated as soon as possible. Lastly, it is very unlikely Sherman will prove that he was enticed upon the premises by the tree house because he was unaware of its existence until entering upon the property. It is for these reasons that a court is likely to find Carlisle not liable for Sherman’s injuries under the attractive nuisance doctrine.