University of Richmond Law Review

Volume 2 | Issue 3 Article 4

1965

The "Attractive Nuisance Doctrine" in VirginiaWilliam T. MuseUniversity of Richmond

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Recommended CitationWilliam T. Muse, The "Attractive Nuisance Doctrine" in Virginia, 2 U. Rich. L. Rev. 139 (1965).Available at: http://scholarship.richmond.edu/lawreview/vol2/iss3/4

The "Attractive Nuisance Doctrine"in Virginia

Wmm&x T. MusE,

Children deem it their prerogative to roam whereverthey please. In particular, they have a tendency towander on other people's land and meddle with anythingthey find there. In doing so they frequently get hurt. Theproblem of the liability of occupiers of land for such in-juries has taken up much of the time of Americancourts in the last one hundred years and has resalted inmany published decisions. The trial courts in Virginiahave devoted much thought and time to this problem, andsince 1887 twelve cases have been heard and decided bythe Supreme Court of Appeals of Virginia. It is the pur-pose of this article to review the present state of the Vir-ginia law as to that liability.

As to an adult trespasser who is injured by conditions(not activities) on the land of another, the general rulethat the occupier of land is under no liability to the tres-passer is uniformly agreed upon by the courts. It is saidthat he is a wrongdoer and that he has no right to de-mand that the land be made safe for his trespass. He ismature enough to be able to look out for himself as to allordinary visible conditions, and to make his own decisionto take his chances against latent dangers. He assumesthe risk. Both in England and America, whose societiesare based on the private ownership of property, it hasbeen considered for centuries a socially desirable policyto allow a man to use the land he occupies in his own way,without requiring him to assume the burden of protect-ing intruders who come there without privilege or right.

There are three recognized exceptions to the general

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rule of non-liability of the land-occupier to an adulttrespasser. Where, to the knowledge of the occupier,there are frequent trespasses upon a small area of hisland he owes a duty to use reasonable care to make con-ditions safe for the intruders. Also, where the occupiersees the trespasser about to encounter a latent danger-ous condition, it is his duty to exercise reasonable careto warn him. In the third place, the occupier will be sub-ject to liability to a traveler on the public highway whoinadvertently or intentionally deviates from the high-way and is injured by a negligently maintained condi-tion on the land. Of course, all three of these exceptionsapply to trespassing children as well as to adults. Shouldthe general rule ever be applied to trespassing children?

Where the trespasser is a child, the reason for thegeneral rule does not exist. He is immature and lackscapacity for sound judgment. He may not be capable ofprotecting himself against conditions which he sees orof making intelligent decisions as to what chances he willtake. The assumption of risk does not seem to apply tothe immature child with the same force and validitywith which it applies to the mature adult. Too, the lawhas always recognized the added social interest in thesafety and welfare of children. While it is the duty ofthe parents of a child to look after his safety, it is neithercustomary nor practical to follow the child around every-where he goes or to confine him in the house or in afenced yard. If the child is to be adequately protected,the one who can do it best and with the least inconveni-ence is the occupier of the land upon which he plays.Any duty thus imposed on the land-occupier must not beunlimited, for two reasons. Parents should not be en-couraged to shed all responsibility for the safety of theirchildren. Furthermore, the burden of making land safefor a child is no less than in the case of an adult, and thelaw should not place an unreasonable burden on the land-occupier to look out for other people's children. The de-

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cisions show an effort to reach a compromise betweenthe social interest in the safety of children and the socialinterest in the ownership and free use of land for theowner's own purposes. No court gives the child completeprotection; all courts afford him some greater degree ofprotection than is given to an adult.

The present state of the American law is accuratelyset forth in the RESTATEMENT (SEcoxD), TORTS §339(Tent. Draft No. 5, 1960), as follows:

§339. CONDITIONS HIGHLY DANGEROUS TOTRESPASSING CHILDREN.

A possesser of land is subject to liability for phy-sical harm to children trespassing thereon caused bya structure or other artificial condition upon theland, if(a) the place where the condition exists is one

upon which the possessor knows or has reason toknow that children are likely to trespass, and

(b) the condition is one of which the possessorknows or has reason to know and which he realizesor should realize will involve an unreasonable riskof death or serious bodily harm to such children,and

(c) the children because of their youth do notdiscover the condition or realize the risk involvedin intermeddling in it or in coming within the areamade dangerous by it, and

(d) the utility of the condition and the burden ofeliminating the danger are slight as compared withthe risk to children involved, and

(e) the possessor fails to exercise reasonable careto eliminate the danger or otherwise to protect thechildren.

The special rule, of which the above is a restatement,came to be known as the "attractive nuisance -doc-trine." This was an unfortunate misnomer. It is not a

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"doctrine." The condition which causes the injury isnot a "nuisance," nor need it be "attractive" to chil-dren. This name has been a deterrent to the adoption ofthe rule in some courts. The special rule merely meansthat child trespasser law is just ordinary negligence lawand the fact of trespass is only one of the factors to betaken into account in determining the defendant's duty,and the care required of him; the fact of trespass doesnot mean that the child's recovery is barred.

At the present time the attractive nuisance doctrineis the overwhelming weight of authority in America.Less than 10 of the 51 jurisdictions refuse to follow it.What of Virginia! The cases are inconclusive. In spite ofthe fact that on at least two occasions the court hasexpressly repudiated the doctrine, none of the Virginiacases is out of accord with it.

The doctrine was first mentioned in Clark v. City ofRichmond, 83 Va. 355, 5 S. E. 369 (1887), which accu-rately stated the doctrine in some detail but held it in-applicable to the facts of that case. The city had ex-cavated on another's land near the public sidewalk, anda boy six years old got upon a brick wall two feet highand fifteen inches wide, which guarded the excavation,and in an attempt to walk the wall fell into the excava-tion and was injured.

Lynchburq Tel. Co. v. Booker, 103 Va. 594, 50 S. E.148 (1905), was the first case presenting facts to whichthe doctrine applies. The land-occupier was held liableto the trespassing child, but the decision was not ex-pressly based on the doctrine. Without citing authoritythe court said:

In legal contemplation it may be that any un-authorized entry upon the premises of anotherwhose title extends to the centre of the earth, down-ward, and without limit upward, by putting one'shand through or over a boundary fence, is a tres-

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pass. It would, however, certainly seem that thetrespass had reached its vanishing point when sucha trespass was committed by a child eight years ofage. (103 Va. at 608, 50 S.E. at 152)

The result is in complete accord with the attractive nuis-ance doctrine. The court avoided the use of the doctrineon the doubtful ground that, on these particular facts,the trespassing child would not be considered a tres-passer.

In Walker's Adm'r v. Potomac, F. & P. R. R., 105 Va.226, 53 S. E. 113 (1906), the court expressly repudiatedthe attractive nuisance doctrine in holding the land-oc-cupier not subject to liability to a trespassing child,twelve years old, who was injured on an unfastened andunenclosed turnable. The doctrine had its inception inAmerica in the case of Sioux City & Pac. R. R. v. Stout,84 U. S. (17 Wall.) 657, 21 L. Ed. 745 (1873), where re-covery was allowed when a child trespassed on the rail-road's land and was injured while playing with a turn-table. In refusing to follow Sioux- City, the Virginiacourt declined to apply the doctrine to the most orthodoxfacts to which the doctrine might be applied. In Walkerthe railroad knew that children constantly intruded andplayed on file turntable. This knowledge on the part ofthe railroad made the first exception to the general ruleof non-liability stated above applicable. There could havebeen liability under either that rule or the attractivenuisance doctrine. The court apparently overlooked theformer and refused to follow the latter.

The next case to arise in Virginia was Lunisford'sAdm'r v. Colonial Coal & Coke Co., 115 Va. 346, 79 S. E.348 (1913). Here a child, three years of age, trespassedfive feet from a commonly used path across railroadtracks and began to play with a broken and danglingelectric wire of the defendant's by touching it againstthe iron rail and making flashes. The child was injured

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when her clothing was ignited by a flash of fire. Thecourt held the injury was unforeseeable and thereforethe railroad was not negligent. Having thus disposed ofthe case, the opinion further stated, however, on the au-thority of Walker, that the land-occupier owned no dutyto the child trespasser, thereby applying to children thegeneral rule applicable to adults.

A decade elapsed before the court had an opportunityagain to express itself on this matter in Haywood v.South Hill Mfg. Co., 142 Va. 761, 128 S. E. 362 (1925).On authority of Lynchburg, the court held the land-occupier liable to an eleven-year-old child who was in-jured when he thrust a piece of an old saw through awire fence enclosing a high-voltage electric transformerand touched the transformer, even if he were a tres-passer at the time. The result, again, is in accord withthe attractive nuisance doctrine, and the opinion be-speaks the very same policy considerations as are backof the doctrine. Although the case presented facts towhich the rule of liability to constant trespassers upona limited area, the rule of liability to trespassers de-viating from an adjacent highway, and the rule of liabil-ity to trespassing children (i.e., the attractive nuisancedoctrine) were applicable, the decision does not seem tobe based on any of them. All of these are exceptions tothe general rule of non-liability to trespassers. The courtsaid:

While it is true, as a general proposition, that theowner of land owes no duty of prevision to tres-passers, there are exceptions to the rule as well rec-ognized as the rule itself. A mere technical trespassas in this case.., or as in the case of Lynchburg Tel.Co. v. Booker, supra, are examples. (142 Va. at 766,128 S.E. at 364)

The next two cases contain dicta repudiating the at-tractive nuisance doctrine: Morris v. Peyton, 148 Va.

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812, 822, 139 S. E. 500, 503 (1927), (thirteen-year-old boyriding on running board of truck found not to be a tres-passer); Filer v. McNair, 158 Va. 88, 93, 163 S. E. 335,337 (1932), (child, eight years old, found not to be tres-passing when he was injured by being caught in theringer of a washing machine being demonstrated by de-fendant). Cf. also Berlin v. Wall, 122 Va. 425, 95 S. E.394 (1918).

In Rieder v. Garfield Manor Corp., 164 Va. 192, 178S. E. 667 (1935), a seven-year-old boy trespassed into de-fendant's tool house and took therefrom several dyna-mite caps one of which exploded and injured him whenhe later picked it with a knife. The trial court's ruling instriking out all the plaintiff's evidence was affirmed onappeal. The entire opinion was devoted to showing thatthe land-occupier was not negligent. If it is to be in-ferred from the pains the court took to find there was nonegligence that it thought the land-occupier owed a dutyto use care for the safety of the trespassing child oftender years, the opinion gives no indication whetherthat duty is imposed by the attractive nuisance doctrineor the rule applicable to constant trespassers upon alimited area, both of which were applicable to the facts.

Daugherty v. Hippchen, 175 Va. 62, 7 S. E. 2d 119(1940), is the key case in determining what the Vir-ginia law is in this area. The plaintiff, a child eight yearsof age, in company with several other children, went intothe defendant's tool house through an open door and,upon leaving, took several dynamite caps. Later theplaintiff was picking at one of the caps with a pin whenit exploded causing injury to him. The facts were suchthat only the general rule of no duty to use reasonablecare for the safety of trespassers, whether adults or chil-dren, or the exception to this general rule, known as the"attractive nuisance doctrine," applicable to trespassingchildren of tender years, was applicable. The defendantwas held liable. The opinion avoided using the term "at-

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tractive nuisance" and conveniently ignored the formeropposed cases, but the language of the opinion preciselydescribes the doctrine and its limitations. Note the fol-lowing language which is in essence a statement of theattractive nuisance doctrine:

There may be cases of trespassers who are not en-titled to a recovery for injuries sustained from ex-plosives while unlawfully on the premises of anotherunless wantonly inflicted, but this rule has no ap-plication where children of immature years are con-cerned. The courts throw a safeguard around suchchildren to protect them in their childish instinctsfrom the dangerous nature of explosives of whichthey have no proper understanding. This is espe-cially true where the keeper of explosives knows, orshould know, that children of tender years play orare likely to play around the storehouse. Liabilitymay exist where a child of tender years is involvedand not exist in the case of a child of more matureyears.

n .. If the one who keeps explosives is negligentin leaving them in a place accessible to childrenwho he knows or should know are accustomed toplay nearby, the fact that the child is a trespasserwill not relieve the owner from liability. The same istrue of other dangerous instrumentalities. (175 Va.at 75, 7 S.E. 2d at 120)

For Virginia authority, the court relied on the Hay-wood and Lynchburg cases which held liability to thetrespassing children. It should be observed that theWalker case, which expressly repudiated the attractivenuisance doctrine and which had not been expressly over-ruled, was ignored in the opinion, though cited and re-lied on in the defendant's brief.

Lest the true meaning of this decision be doubted, thenon-Virginia authorities cited by the court in support ofits holding should be examined. Three authorities were

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relied on. One, Sedita v. Steinberg, 105 Conn. 1, 134 Ati.243 (1926), was not in point since the child plaintiff wasnot a trespasser. The court then cited the section ofAmerican Jurisprudence which sets out the attractivenuisance doctrine. The third authority was a leadingcase, Smith v. Smith-Peterson Co., 56 Nev. 79, 45 P. 2d785, 48 P. 2d 760 (on rehearing) (1935), which appliedthe doctrine. In clarifying the first opinion in Smith theNevada court, on rehearing, recognized the division ofauthority throughout the United States and expresslychose the attractive nuisance doctrine. In doing so, allof §339 of the Restatement of Torts (1934), which is anauthoritative statement of the attractive nuisance doc-trine, and substantially all of Comment a to that sectionwere 'quoted.

The next case to reach the Court of Appeals, Dennisv. Odend 'Hal-Monks Corp., 182 Va. 77, 28 S. E. 2d 4(1943), was distinguished from Daugherty on its facts,and was decided for the defendant. While repairing theroof of a nearby building, the defendant parked histruck at the curb on the street in close proximity to asand pile known by the defendant to be a favorite placeof play for the neighborhood children. Near the rear ofthe truck, in plain view of the children, were left toolsand repair materials, including a Pepsi-Cola bottle, withits original colorful label attached, containing muriaticacid. The plaintiff, a three-year-old child, obtained pos-session of the bottle and drank some of its contents andas a result was seriously injured. The defendant washeld not liable on the theory "that such an event couldnot be foreseen by even the most careful and prudentperson." Having decided that the injury was unforesee-able and therefore the defendant was not negligent, it be-came unnecessary to refer to the attractive nuisance doc-trine. It is obvious, however, that the court consideredthe defendant to be under a duty to the trespassing child.If here had been no duty of care it would have been

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unnecessary for the court to discuss negligence, i.e., thefailure to exercise care. The existence of a duty to usedue care for the safety of trespassing children, which isthe attractive nuisance doctrine, was made clear whenthe court closed its opinion by saying:

The defendant emphasized the fact that in thiscase the child was a trespasser. We give littlethought to this in the case of a child of such im-mature years. In fact we said in the Daugherty-.Uippehen Case, supra, that the rule regarding tres-passers has no application where children of im-mature years are concerned. (182 Va. at 83, 28 S.E.2d at 7)

Having in mind the only Virginia cases holding liabil-ity to trespassing children, the court in Baecher v. Mc-Farland, 183 Va. 1, 31 S. E. 2d 279 (1944) held that abarbed-wire fence does not "attract children" as doelectric wires or dynamite caps. Thus, a five-year-oldtrespassing child who, after climbing upon a fence, felland was injured when she came in contact with one of thebarbs was denied recovery.

In Town of Big Stone Gap v. Johnson, 184 Va. 375, 35S. E. 2d 71 (1945), an eight-year-old boy was injuredwhile he and a playmate were playing on a road scraperleft after working hours near a playground area. Theplaintiff grounded his action on thp attractive nuisancedoctrine. In summarizing the doctrine the court said:"The two necessary elements of the tort are that theappliance is known to be attractive to children andknown to be dangerous to them." Then it proceeded tohold that the defendant had no reason to think that theroad scraper would be attractive to children, nor wasthere any proof that it was dangerous to children as istrue in the case of dynamite caps or moving machinerysuch as a washing machine. The court did not repudiatethe doctrine, but held that the facts of this case did not

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meet its requirements. As an alternate ground of deci-sion, the court found that the defendant was not guiltyof the degree of negligence required for recovery. Bothgrounds of decision presuppose a duty to trespassingchildren such as that imposed by the attractive nuisancedoctrine.

The most recent decision is Wa hwabaugh v. NorthernVa. Const. Co., 187 Va. 767, 48 S. E. 2d 276 (1948). Inconducting its business of quarrying rock, the defendantmaintained a large, unenclosed pit which stayed filledwith water of varying depths. The water being muddy,it was impossible to distinguish the shallow from thedeep water. To the knowledge of the defendant, childrencustomarily swam, waded, and played in the pit. Theplaintiff, nine years old, while playing on a raft, fell offand was drowned. In holding no liability, the court foundthat the quarry was not the type of condition on landto which the attractive nuisance doctrine applies. Al-though the opinion did not expressly say so, a closeanalysis leaves no doubt that Virginia has embraced theattractive nuisance doctrine. The opinion expresslytreated the case as one involving the doctrine. After re-ferring to the earlier Virginia cases, some of which heldin accord with the doctrine while others repudiated it,the court said:

In order for the doctrine to apply, the danger ofthe instrumentality must not only be hidden or la-tent, but the instrumentality must be easily accessi-ble to children and in a location where it is knownthat children frequently gather. (157 Va. at 770, 48S.E. 2d at 278)

The holding in Washabaugh that the danger was notlatent, and therefore the doctrine did not apply, is acommonly accepted limitation on the doctrine of attrac-tive nuisance. See RESTATEMENT (S.com1), TORTs §339(d) and comment i (Tent. Draft No. 5, 1960). In support

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of its decision for the defendant, the court cited and re-lied on four authorities: (1) Peters v. Bowman, 115 Cal.345, 47 Pac. 113 (1896). The attractive nuisance doctrineis well established in California. (2) Stendal v. Boyd, 73Minn. 53, 75 N.W. 735 (1898). Minnesota was the firststate in America to adopt the doctrine. (3) Four sepa-rate annotations in the American Law Reports, each ofwhich is entitled "Attractive Nuisances." (4) Twelvesections in American Jurisprudence all of which are lo-cated in a chapter headed "Attractive Nuisances."

For a while, the Virginia cases seemed to have de-veloped a rule of their own hnown as the "dangerousinstrumentalities" rule. The court applied this rule withthe exact same results as would have been true had theattractive nuisance doctrine been used. Since Virginia inreality follows the doctrine, it would be a long step to-ward clarification of the law in Virginia if the courtwould expressly admit that the attractive nuisance doc-trine, with its generally accepted limitations, is the lawof this state and has been for sometime. We need onlymake the language of the opinions accord with the re-sults of the decisions.