Trespassing Children: A Study in Expanding Liability

When confronted with a case involving a child plaintiff, attorneys and the courts should recognize that the doctrine of attractive nuisance is only one of several theories on which the plaintiff may proceed against a landowner. The status of a plaintiff should first be determined. If the child is a trespasser, then either the constant trespasser theory, the known trespasser theory, or the doctrine of attractive nuisance may be applicable. It is possible, however, that the court may reject any one or all of these theories and decide the particular case under the general negligence principles of foreseeability of harm and scope of the risk.

If, on the other hand, the child occupied the status of a licensee or an invitee, other sections of the Restatement would be applicable. Where the attractive nuisance doctrine is applicable, it is submitted that each new case should be considered against the doctrine's historical purpose and within its dimensions as set forth in the Restatement (Second). The courts should recognize that application of the doctrine involves a balancing of the competing social values of the landowner's right to free use of his property and the interest of the child in freedom from harm. These interests will be adequately balanced if the elements of Restatement section 339 are considered individually by the judge and the case is submitted to the jury with a well-drawn instruction.

Of course, submission to the jury should take place only if there is sufficient evidence adduced on each element so that reasonable minds could differ. It is submitted that this approach will produce well-reasoned opinions and just results in each new attractive nuisance case.