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Memo Re: Attractive Nuisance February 20, 2018

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Memo Re: Attractive Nuisance February 20, 2018 M E M O R A N D U M TO: Negligence Subcommittee FROM: Charlie Wiggins DATE: February 20, 2018 RE: Attractive Nuisance Instruction – 401.16(c) Out the outset of our work on a proposed revision to the attractive nuisance instruction, the primary issue was the absence of anything in 401.16(c) as to “allurement.” Presently, 401.16(c) does not directly address this requirement. I think we’ve come to a consensus that the instruction should include language as to an allurement requirement. In the committee’s discussions on this issue, however, we have struggled with the issue of whether the structure or artificial condition which caused harm to the child must be the thing that enticed or allured the child to the condition in the first instance, or, alternatively, whether the premises on which the structure or artificial condition was found by the child was itself the general source of the allurement. LEGAL AUTHORITY To refresh your recollection: The applicable Florida cases generally appear to indicate that the child’s harm must have been caused by the thing that allured the child. This is in contrast to a child’s harm being occasioned by a thing that he or she merely encountered while trespassing. Johnson v. Bathey, 376 So.2d 848 (Fla. 1979), sheds some light on this issue. The child in Johnson was injured while playing on an irrigation pump. That said, the child was not allured onto the premises because of the existence of the pump. Instead, he merely encountered it while on the premises. The trial court entered summary judgment in favor of the defendant as to an attractive nuisance claim. The Second DCA reluctantly affirmed the trial court, but expressed its belief that Section 339 of the Restatement of Torts is “the better rule.” See Johnson v. Bathey, 350 So.2d 545, 548 (Fla. 2d DCA 1977). The Florida Supreme Court affirmed the DCA. In doing so, the Court specifically declined to adopt Section 339 of the Restatement of Torts (Second) in toto in lieu of the Court’s prior pronouncements: “The Restatement dispenses with the required element of ‘allurement.’” 376 So.2d at 849. Instead, the Court adhered to its prior decision in Concrete Construction, Inc. v. Petterson, 216 So.2d 221 (Fla. 1968). In Concrete Construction, the Court expressly rejected a full adoption of the Restatement: Although we often cite the Restatement in such instances as appropriate, we have never adopted it in the sense of altering basic elements of a cause of action. Since this Court first approved this so- called attractive nuisance doctrine in Stark v. Holtzclaw, supra, we have steadfastly held that it must be alleged that defendant allured the youthful plaintiff upon the dangerous premises, for without such showing plaintiff could not attain a status of implied invitee, which status entitles him to recover based upon simple or ordinary negligence. 216 So.2d at 223. [emphasis suppled] Later, in Estate of Starling v. Saha, 451 So.2d 516 (Fla. 5th DCA 1984), rev. denied, 458 So.2d 273 (Fla. 1984), the DCA concluded that it was bound by Johnson and Concrete Construction: “In applying the attractive nuisance doctrine, we are bound by the Florida Supreme Court’s requirement that the plaintiff allege and prove that a child was lured or attracted onto the land by the condition or structure that injured him.” 451 So.2d at 518. [emphasis supplied] In contrast to this line of Florida cases, at least one United States Supreme Court case takes the position that the general condition of the property itself (i.e., not necessarily the thing that caused the child’s injury) is sufficient to constitute an attractive nuisance: It was not necessary for the plaintiffs to prove that the structure and wire maintained by the defendant, as distinguishable from the city's bridge and defendant's strut, were alluring to children. It is sufficient that the defendant maintained a dangerous wire in close proximity to something which was alluring to children or in close proximity to a place where defendant knew, or should have known, children were likely to be attracted. 2 New York, N.H. & H.R. Co. v. Fruchter, 260 U.S. 141 (1922). PROPOSED REVISIONS TO 401.16(C) In light of the apparent split of authority on this issue, here’s a proposed revision to this instruction. The proposed language addresses allurement, but doesn’t take a firm position as to the “general” or “specific” source of the allurement. Instead, I’ve left it open for debate by the litigants: 401.16 PRELIMINARY ISSUES – PREMISES LIABILITY On (claimant’s) claim, there is a preliminary issue for you to decide. That issue is: c. Attractive nuisance: *[whether (defendant) [owned] [possessed] [or] [controlled] the land or premises in question]; whether the (identify structure or other artificial condition) was located at a place on the land or premises in question where (defendant) knew or had reason to know children were likely to be [as trespassers or otherwise]; whether (claimant child) was [attracted][lured][or][enticed] by the [identify structure or other artificial condition][land or premises in question]; whether the (identify structure or other artificial condition) had an unreasonable risk of death or serious harm to children who, because of their age, were not likely to discover the condition or realize the risk involved in meddling with it or in coming within the area made dangerous by it; [and] whether (defendant) knew or had reason to know of the risk to the children; †[and whether (claimant child), because of his age, did not discover the condition or realize the risk involved in meddling with it or in coming within the area made dangerous by it]. I have also added some proposed language to the Note on Use to reflect this split of authority: NOTE ON USE FOR 401.16c 1. Derived from RESTATEMENT (2D) OF TORTS §339; Cockerham v. Vaughan, Inc., 82 So.2d 890 (Fla. 1955); Banks v. Mason, 132 So.2d 219 (Fla. 2d DCA 1961); Fouraker v. Mullis, 120 So.2d 808 (Fla. 1st DCA 1960); . Considered together, instructions 401.16c and 401.20c cover all elements of the attractive nuisance 3 doctrine. Since plaintiff must, in effect, negate negligence in order to prevail on this doctrine, comparative negligence is not a defense. Larnel Builders, Inc. v. Martin, 110 So.2d 649 (Fla. 1959). 2. The Committee takes no position as to whether the structure or artificial condition that caused the claimant’s harm must be the source of the attraction, allurement or enticement of the claimant onto the land or premises in question. The law is unclear as to whether the land or premises in question may be the general source of the attraction, allurement or enticement, or whether the claimant must prove that he or she was specifically attracted, lured or enticed by the structure that injured the claimant. Compare New York, N.H. & H.R. Co. v. Fruchter, 260 U.S. 141 (1922), with Estate of Starling v. Saha, 451 So.2d 516 (Fla. 5th DCA 1984). * * * I encourage your thoughts on these issues. 4 .
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