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Anyone who goes upon the private property of another without lawful authority or without permission or invitation, express or implied, is a trespasser to whom the landowner owes no legal duty until his presence is discovered.
Two minors, Shaun and Alex, took a shortcut to school across a county-owned landfill. They began throwing rocks at a slope, causing dirt and gravel to come loose. The boys' older brother discovered them lifeless at the bottom of the pit, where they had been crushed to death when a wall of the landfill collapsed on them. Plaintiffs, Frank and Leslie O’Guin brought an action against Bingham County, its commissioners, and its public works department for the wrongful death of their minor sons, alleging that the landfill was an attractive nuisance and that the county breached legal duties to control access to the landfill to prevent children from walking in and playing there. The County, in its answer, asserted that inasmuch as the boys were trespassers, there was no duty of reasonable care owed to them. The County sought dismissal of the attractive nuisance claim and reasserted that the County's only duty to trespassers was to refrain from willful and wanton conduct, which the plaintiffs had failed to plead. The District Court granted summary judgment in favor of the County, holding that the plaintiffs failed to prove an essential element of their attractive nuisance claim. The court further held that the negligent infliction of emotional distress claim had not been pled and thus was not before the court. Plaintiffs appealed.
The instant court concluded that the trial court correctly held that the boys were trespassers. The record disclosed nothing from which the trial court could conclude the boys had permission or were authorized to enter onto the property. The court averred that the argument suggesting an “implied invitation” to enter into the property did not alter the boys’ status as trespassers but may be relevant to the landowners’ duty to the children. The court further held that the attractive nuisance doctrine only applied to children who were attracted onto the defendant’s premises by a dangerous object or condition. In the case at bar, the court held that the plaintiffs had not established that the boys were attracted onto the landfill property by the open pit or the piles of debris. The dangerous condition that caused harm to the boys was only discovered after they had entered the property. Thus, the trial court properly dismissed the attractive nuisance claim.