Facts Ordinary pond owned by the city Popular with area residents for fishing and swimming The two boys were familiar with the pond and had gone there before. Neither boy could swim. There were no warning signs around the pond. The pond, while man-made, was in existence before the city purchased the land. Issue Was the pond a “trap” or extraordinarily dangerous enough to render it an “attractive nuisance” to children and thus create a negligent situation on the part of the land owner upon which the pond was placed? Rules
“It is conceded that the rule in this jurisdiction is that a natural body of water, or an artificial body of water having natural characteristics, is not in and of itself an attractive nuisance. ” No duty to trespassers except not to willfully cause the injury (Mail v. Smith Lumber Co. , 287 P. 2d 877 (Wash. 1955)).
However, in the case of infant trespassers, there is the attractive nuisance doctrine: 1. The condition must be dangerous in and of itself; 2. The conditions must be attractive and enticing to young children; 3. The children, because of their youth, must be incapable of understanding the danger involved; 4.
The condition must have been left unguarded at a place where children go; or where they could be reasonably expected to go; 5. It must have been reasonably feasible either to prevent access or to render the condition innocuous without destroying its utility. Analysis Drowning is a commonly-known danger of which six and eight-year olds are capable of understanding. Furthermore, there were many more instances of recreational use of the pond compared to the number of drownings. Therefore, the pond is not dangerous. Because it fails to meet the first requirement of the attractive nuisance doctrine, the pond is not an attractive nuisance.
... age beyond which the [attractive nuisance doctrine] does not apply…however, as the child’s age increases, the conditions become fewer in which ... years older than Sherman. Id. D. Burden of Eliminating Dangerous Condition Sherman will have difficulty proving that Carlisle’s burden ... defendant was aware that children frequently trespassed upon his property to swim in an excavated pond. Id. The defendant ...
Since there is no attractive nuisance, there is no liability on the part of the city. Conclusion Lower-court ruling affirmed that the pond is not an attractive nuisance under the doctrine. It does not meet the element of being dangerous in and of itself. Would the court apply the attractive nuisance doctrine given the following changes in fact: 1) The pond was 300 feet wide rather than 100? 2) The pond was 25 feet deep rather than 6 feet deep at its deepest part? 3) The pond was surrounded by a concrete walkway built by the city? 4) The water was clear, rather than muddy? 5) The plaintiff’s sons were 3 and 4 rather than 6 and 8?