Banker v. McLaughlin

146 Tes. 434, 208 S.W.2d 843 (1948)



An attractive nuisance is a thing which may naturally be expected to allure young children upon private premises, or a thing which has an especial or unusual attraction for young children by reason of their childish instincts. In order for a thing to constitute an attractive nuisance, it must be so construed or maintained as to constitute an implied invitation to young children. In other words, the thing or instrumentality must be such that on account of its nature, location, and surroundings it is especially and unusually calculated to attract and does attract young children.


Plaintiff parent sought damages for the death of his minor son. The child died by drowning in a large hole, or pit, of water in a construction area that defendant owner was in the process of developing and marketing. Plaintiff alleged the digging of the hole by defendant made the spot, when filled with water, especially attractive to children and was dangerous. He alleged that defendant was negligent in creating on his premises (without warning devices or protective measures of any character) such dangerous condition where he knew or should have know that children played. The trial court awarded judgment in plaintiff’s favor on the jury’s verdict for $15,200. The Court of Civil Appeals, under the view that the award was excessive, caused a remittitur to be filed which reduced the judgment to $6,000. The case was heard on defendant’s application for writ.


Was Mr. Banker negligent in creating on his premises a dangerous condition where he knew or should have known children played?




The court held that while there was substantial proof of the inherent attractiveness of the place, they were primarily concerned with the dangerous condition created by petitioner on his open premises and the fact that the dangerous features of the condition could have been eliminated at small expense without interfering with the owner’s marketing of the homesites. The court ruled that based on the attractive nuisance doctrine, the child was not a licensee or trespasser, but an implied invitee. Therefore, the owner has a duty of exercising ordinary care to keep such machinery in reasonably safe condition for their protection. Because Mr. Banker knew or should have known children swam there and because he did not take any precautions to warn others or the dangers of the pool or keep them away, he was held as negligent.

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