Merrill v. Cent. Me. Power Co.

628 A.2d 1062 (Me. 1993)



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, and (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, and (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, and (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.


When a boy was nine years old, he entered a power company's property in South Berwick to fish in the Salmon Falls River. After catching an eel in the river, he walked to the nearby power company electrical sub-station, climbed the surrounding fence, and attempted to cook the eel by leaning over the top of the fence and placing the eel on a live electrical wire. He received an electric shock and suffered severe burns. A case was filed against the power company for damages for personal injuries allegedly caused by an attractive nuisance located on the power company's property. The trial court granted a summary judgment in favor of the power company upon finding that the minor appreciated the risk at the time of the accident, that electrical sub-stations were not, as a matter of law, attractive nuisances, and that the power company was immune from liability under state law.


Was the minor entitled to damages?




The court affirmed the trial court's decision upon finding that the minor appreciated the risk inherent in placing an eel on a live electrical wire surrounding the electrical sub-station. In deposition testimony, the minor admitted that, at the time of the accident, he knew (1) that the purpose of the fence surrounding the sub-station was to keep people out; (2) that electricity could both burn and hurt him; (3) that he was careful not to touch the wire himself; and (4) that what he did was a "dumb idea." Because the minor was unable to generate a factual issue regarding an indispensable element of the attractive nuisance doctrine, whether he appreciated the risk at the time of the accident, he was conclusively precluded from recovery.

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