O'GUIN v. Bingham County

Justice KIDWELL,

dissenting in part.

The majority affirms summary judgment on the plaintiffs’ claim based on an attractive nuisance theory. I would find genuine issues of material fact exist regarding each element of the attractive nuisance claim. Therefore, I respectfully dissent.

In Nelson ex rel Nelson v. City of Rupert, this Court stated the elements necessary to sustain an attractive nuisance claim:

Plaintiff has the burden of proving: (1) A structure/condition existed on the defendant’s premises which the defendant knew or should have known in the exercise of ordinary care, involved a reasonably foreseeable risk of attraction and harm to children; (2) The structure/condition maintained/permitted on the property was peculiarly or unusually attractive to children; (3) The structure/condition was such that the danger was not apparent to immature minds; and (4) The [child] was attracted onto the premises by such structure/condition.

128 Idaho 199, 202, 911 P.2d 1111, 1114 (1996) (citing Bass v. Quinn-Robbins Co., 70 Idaho 308, 312, 216 P.2d 944, 945 (1950)).

The majority states that “the plaintiffs had not established that the boys were attracted onto the landfill property by the open pit or piles of debris. ... We agree with the district court’s conclusion that the dangerous condition that caused harm to the boys was discovered only after they had entered the property.” Thus, the majority finds that the plaintiffs lacked evidence on the fourth element of attractive nuisance — the child must have been “attracted onto the premises by such structure/condition.”

This Court has long debated what attraction or enticement is necessary to sustain a cause of action for attractive nuisance. See, e.g., Bicandi v. Boise Payette Lumber Co., 55 Idaho 543, 555, 44 P.2d 1103, 1108 (1935) (Holden, J., concurring specially); see also Jacobsen v. City of Rathdrum, 115 Idaho 266, 276, 766 P.2d 736 (1988) (Bistline, J., concurring and dissenting). While a child must be “attracted onto the premises by such structure/condition,” I believe the majority reads this element of attractive nuisance too narrowly. A better interpretation of the requirement that the child be “attracted onto the premises” is found in the Restatement of Torts and Restatement (Second) of Torts. See, e.g., MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211, 216 (1958). In MacNeil, the court, relying on the Restatement of Torts, found that the requirement that a child be “attracted onto the premises by such structure/condition,” was satisfied if the:

children who after entering the land are attracted into dangerous intermeddling by such a condition maintained by him although they were ignorant of its existence until after they had entered the land, if he knows or should know that the place is one upon which children are likely to trespass and that the condition is one with which they are likely to meddle.

Id. (citing Restatement of Torts § 339, cmt. (a) (1938)).

The Restatement’s approach to enticement need not change the basic elements one must prove to prevail on a claim for attractive nuisance. Instead, it applies the ordinary standard of care to owners of premises that maintain structures or conditions attractive to, and dangerous for, children, but not visible from the boundary of the parcel. Such a landowner should be required to show “reasonable care not to inflict foreseeable harm ...” on the foreseeable trespassing child. Restatement (Second) of Torts § 339 cmt. (b) (1965). Applying the doctrine of attractive nuisance in this fashion would acknowledge that the basic premise of tort liability is the principal that individuals should use reasonable care to avoid foreseeable harm, not attraction onto premises. If it is foreseeable that a child will trespass on premises, and it is foreseeable that such a child will be attracted to a dangerous structure or condition “just as certainly as a fish is attracted to and mechanically follows a bait,” then a landowner should be required to show reasonable care to prevent injury to the child. Such reasonable care may be shown by preventing the initial trespass or by making safe the dangerous condition. Bicandi, 55 Idaho at 556, 44 P.2d at 1108 (Holden, J., concurring specially).

This Court has repeatedly rejected the call to apply the concept of foreseeability in the attractive nuisance setting. See Hughes ex rel Hughes v. Union Pac. R. Co., 114 Idaho 466, 468-69, 757 P.2d 1185, 1187-88 (1988); Bicandi, 55 Idaho at 551-52, 44 P.2d at 1106; see also Ambrose ex rel Ambrose v. Buhl Joint Sch. Dist. No. 412, 126 Idaho 581, 585, 887 P.2d 1088, 1092 (Ct.App.1994). I, however, see no reason to continue placing attraction or enticement as a bar to recovery for foreseeable injury which would have been prevented through the use of reasonable care.

Based on the record in this case, I would find that genuine issues of material fact exist regarding whether the county knew that children were likely to trespass upon the old landfill and whether the structure or condition in the new landfill was one with which children were likely to meddle. Thus, I would vacate summary judgment on the attractive nuisance claim and remand this case for further proceedings.