Bennett v. Stanley

2001-Ohio-128, 92 Ohio St. 3d 35, 748 N.E.2d 41

 

RULE:

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 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.

FACTS:

Homeowners purchased a home with a swimming pool. The pool was enclosed by fencing and a brick wall, and was covered by a tarp. Homeowners removed the tarp and fencing on two sides of the pool, and although they drained the pool, they allowed rainwater to collect in the pool to a depth of over six feet. The pool became a pond. It contained no ladders, the sides were slick with algae, and frogs and tadpoles lived in the pool. Plaintiff's family rented the house next to homeowners several months after homeowners purchased their house. Plaintiff was married and the father or stepfather of three young children. Homeowners were aware that children lived next door and evidence showed that there was some fencing between the properties, but with an eight-foot gap. In March 1997, plaintiff arrived home to find his stepson and wife unconscious in homeowners' pool. Both later died.

ISSUE:

Does the attractive nuisance doctrine extend to an adult who attempted to rescue a child from the attractive nuisance?

ANSWER:

Yes.

CONCLUSION:

The state supreme court used this case to adopt the attractive nuisance doctrine as the law of Ohio and also held that an adult who attempted to rescue a child from an attractive nuisance assumed the status of the child and was owed a duty of ordinary care by a property owner. While the attractive nuisance doctrine is not ordinarily applicable to adults, it "may be successfully invoked by an adult seeking damages for his or her own injury if the injury was suffered in an attempt to rescue a child from a danger created by the defendant's negligence."

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