Suppose a manufacturing company uses a pulley to hoist raw material up to a fifth story of its factory.
Problem 1
Suppose a manufacturing company uses a pulley to hoist raw material up to a fifth story of its factory. The company is aware that children like to visit its open yard and its employees actively try to drive the children away. One day an employee forgets to shut off the engine that operates the pulley. A group of children who walk by and see the ball and hook on the pulley going up and down dare one another to grab hold of the pulley and be carried up to the fifth floor. Jed, an eight-year-old, accepts the dare and is being carried up by the pulley when he becomes frightened, and lets go of the pulley, falling to the ground and sustaining injuries. Does the company owe Jed a duty under the attractive nuisance doctrine. Analyze each element of Rest. Torts 339, and compare and contrast with each relevant fact above to give a reasoned result.
Attractive Nuisance Doctrine
Restatement of Torts 339 states:
The standard of liability in the case centered around Restatement (second) of Torts § 339 (1965), which allows a limited exception to the general rule that a possessor of land owes no duty to trespassers. The Restatement provision, titled “Artificial Conditions Highly Dangerous to Trespassing Children,” reads:
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;
(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.
regarding case:439 F.2d 477 (1970)
Sarah B. KLINE, Appellant,
v.
1500 MASSACHUSETTS AVENUE APARTMENT CORPORATION et al.
The Legal Equine Edge-Are Horses an Attractive Nuisance?
By: Lynda Motes Hill – Attorney
Children are fascinated by horses. As a result, they are often drawn to pastures or stables for the opportunity to look at them more closely. However, what happens if a child crosses a fence or comes into a stable without permission, gets too close to a horse and is accidentally injured? Who is liable for the injuries?
As a general rule, trespassers are provided little protection under the law; however, if the trespasser is a child an exception to this rule may arise under the “attractive nuisance” doctrine. What is an attractive nuisance? Generally speaking, an attractive nuisance is any condition on the land that poses an unreasonable risk of harm and tends to attract children. This doctrine most commonly arises in the case of swimming pools or other artificial conditions; however, the question of whether a horse constitutes an attractive nuisance has been addressed by courts on a few occasions.
Horses are not an attractive nuisance per se; however, each case presents different facts so courts look at several different factors to determine whether a horse creates an attractive nuisance such that the horse owner or land owner will be liable for injuries sustained by trespassing children. Here are the most common factors:
Did the owner know, or have reason to know, that children trespass on the property;
Did the owner know or have reason to know that the condition on the property (in this case a horse in a pasture or stable) is one which will involve an unreasonable risk of death or serious bodily harm to the children;
Did the children because of their youth not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it;
Was the utility to the owner of maintaining the condition and the burden of eliminating the danger slight as compared with the risk to children involved;
Did the owner fail to exercise reasonable care to eliminate the danger or otherwise to protect the children.
What can an owner do to protect him/herself from liability? While there is no way to prevent a lawsuit, it is possible to take steps to reduce the risk of liability for injuries sustained by trespassing children. Here are a few suggestions: First and foremost, if you are aware that your horse has dangerous propensities, try to keep the horse away from areas easily accessible or visible to children. Second, regardless of whether your horse has dangerous propensities, make sure fencing is properly maintained and that you have complied with any or all laws or ordinances regarding proper fencing for horses or livestock. Third, if you see a child trespassing, ask the child to leave the area, advise the child’s parents in writing that the child has trespassed and ask that the parents take affirmative steps to keep the child away or request that the child only visit the horses under your supervision. If you decide to write a letter to the parents, try to avoid using language that could be considered an admission that your horses are dangerous. While all horses may pose a risk of danger to a child, due to a child’s size and inexperience, that does not suggest that a horse is dangerous or will harm a child. Finally, obtain liability insurance.
Again, there is no absolute protection against lawsuits. However, if an owner takes an active role in ensuring that horses, regardless of their propensities, are properly maintained, and that children and their parents are properly warned, the risk of liability should be reduced. If you have additional questions about additional steps you may be able to take to protect yourself from attractive nuisance liability, contact a knowledgeable attorney in your state.
4.The Minnesota Supreme Court limited the scope of liability for landowners when children trespass on their property. In Croaker v. Mackenhausen (No. C8-98-119), 1999 WL 298480 (Minn.May 13, 1999) Links to an external site., the Supreme Court overruled the Court of Appeals, holding that a landowner is not liable for injuries to trespassing children just because he knew the children frequented the vicinity of a dangerous artificial condition.
Problem #2
Compare and contrast the case of Sarah B. Kline v. 1500 Massachusetts Avenue Apartment Corp. (1970) with the recent case of Tenney v. Atlantic Associates (1999).
Determine and state
1. The court legal rule in each case
2. The rationale for each rule
3. What was the change in rationale between the two cases, and why?
Collepals.com Plagiarism Free Papers
Are you looking for custom essay writing service or even dissertation writing services? Just request for our write my paper service, and we'll match you with the best essay writer in your subject! With an exceptional team of professional academic experts in a wide range of subjects, we can guarantee you an unrivaled quality of custom-written papers.
Get ZERO PLAGIARISM, HUMAN WRITTEN ESSAYS
Why Hire Collepals.com writers to do your paper?
Quality- We are experienced and have access to ample research materials.
We write plagiarism Free Content
Confidential- We never share or sell your personal information to third parties.
Support-Chat with us today! We are always waiting to answer all your questions.
