attractive nuisance doctrine in California

1954Appellant argued that under her complaint the hole constituted a concealed trap under the attractive nuisance doctrine as applied in the Sanchez case. ( 205 Cal. 515 .) The court, upon the authority of Morse v. Douglas, 107 Cal.App. 196, 198 [ 290 P. 465 ], and other cases cited, stated the rule as follows (pp. 126, 127): “In order to constitute an attractive nuisance there must be an appliance or contrivance that is artificial, uncommon, dangerous and constituting a trap for a young child, which can be made safe easily and without destroying its usefulness.” The court distinguished the facts

1931Cal. 515 [ 271 Pac. 1060 ], and seriously urges that under -this decision the allegations of her amended complaint bring the case squarely within the attractive nuisance doctrine.

1919Rep. 106 , 47 Pac. 113, 598 ] ; Malloy v. Hibernia Savings etc. Soc., 3 Cal. Unrep. 76 , [ 21 Pac. 525 ]; Loftus v. Dehail, 133 Cal. 214 , [ 65 Pac. 379 ]), and this because the eases arise out of “instances where the owner maintains on his land something in the nature of a trap, or other concealed danger, known to him, and as to which he gave no warning to others.” This language is quoted from the opinion of Mr. Justice McFarland in Peters v. Bowman, supra. The exception to the general rule that an owner owes no duty to protect trespassers which is established by the turntable cases, and is k

1919Rep. 106 , 47 Pac. 113, 598 ] ; Malloy v. Hibernia Savings etc. Soc., 3 Cal. Unrep. 76 , [ 21 Pac. 525 ]; Loftus v. Dehail, 133 Cal. 214 , [ 65 Pac. 379 ]), and this because the eases arise out of “instances where the owner maintains on his land something in the nature of a trap, or other concealed danger, known to him, and as to which he gave no warning to others.” This language is quoted from the opinion of Mr. Justice McFarland in Peters v. Bowman, supra. The exception to the general rule that an owner owes no duty to protect trespassers which is established by the turntable cases, and is k

1960This case was later disapproved and not followed in Wilson v. City of Long Beach, 71 Cal.App.2d 235 [ 162 P.2d 658 , 163 P.2d 501]; (2) Middaugh v. Waseca Canning Co., 203 Minn. 456 [ 281 N.W. 818 ], 3 A.L.R.2d 770 , which like the Skinner case involved children hitching rides on moving vehicles. ‘‘ § 413.

1960This case was later disapproved and not followed in Wilson v. City of Long Beach, 71 Cal.App.2d 235 [ 162 P.2d 658 , 163 P.2d 501 ]; (2) Middaugh v. Waseca Canning Co., 203 Minn. 456 [ 281 N.W. 818 ], 3 A.L.R.2d 770 , which like the Skinner case involved children hitching rides on moving vehicles. [fn. *] *. " 413.

1960The only two authorities to the contrary are (1) Skinner v. Knickrehm, 10 Cal.App. 596 [ 102 P. 947 ], where the attractive nuisance doctrine was held to apply to a house moving operation on the streets of Los Angeles on the ground that the property on which the accident occurred was left unattended and unguarded.

1960The only two authorities to the contrary are (1) Skinner v. Knickrehm, 10 Cal.App. 596 [ 102 P. 947 ], where the attractive nuisance doctrine was held to apply to a house moving operation on the streets of Los Angeles on the ground that the property on which the accident occurred was left unattended and unguarded.

1959Company (1891), 91 Cal. 296 [ 27 P. 666 , 25 Am.St.Rep. 186 ], California has recognized an exception to the above rule in the form of the attractive nuisance doctrine.

1959Company (1891), 91 Cal. 296 [ 27 P. 666 , 25 Am.St.Rep. 186 ], California has recognized an exception to the above rule in the form of the attractive nuisance doctrine.

1957The ladder was dangerous, but it was not uncommon, and in this case it was not a proximate cause of the injury. ’ “Under the cases just cited, and Giddings v. Superior Oil Co., 106 Cal.App.2d 607 [ 235 P.2d 843 ], it appears that in some cases it may properly be held, as a matter of law, that the attractive nuisance doctrine is not applicable, and that the facts are not sufficient to warrant leaving the decision of that question to a jury.

1957The ladder was dangerous, but it was not uncommon, and in this case it was not a proximate cause of the injury. ’ “Under the cases just cited, and Giddings v. Superior Oil Co., 106 Cal.App.2d 607 [ 235 P.2d 843 ], it appears that in some cases it may properly be held, as a matter of law, that the attractive nuisance doctrine is not applicable, and that the facts are not sufficient to warrant leaving the decision of that question to a jury.

1974The decision of Rowland v. Christian, supra, 69 Cal.2d 108, 3 in effect, abolishes the attractive nuisance doctrine in California.

1968(See Gallipo v. City of Long Beach, supra, 146 Cal.App.2d at p. 526 .) Accordingly, eases like Gutirrez v. Southern Pac.

1968The court then continued that the age of the minor was a most obvious and significant fact, noting at page 744: “ ‘What might constitute an attractive nuisance to a 7-year-old child would be immaterial as applied to a 14-year-old high school student. ’' ’ Here, the uncontroverted evidence, admitted for the limited purpose of establishing defendant’s knowledge of the danger, indicates that the loose plank in question was a defective scaffold, 3 in violation of Industrial Safety Order No. 1640, set forth in the footnote below. 4 In Helguera v. Cirone, 178 Cal.App.2d 232 [ 3 Cal.Rptr. 64 ], we he

1968The court then continued that the age of the minor was a most obvious and significant fact, noting at page 744: “ ‘What might constitute an attractive nuisance to a 7-year-old child would be immaterial as applied to a 14-year-old high school student. ’' ’ Here, the uncontroverted evidence, admitted for the limited purpose of establishing defendant’s knowledge of the danger, indicates that the loose plank in question was a defective scaffold, 3 in violation of Industrial Safety Order No. 1640, set forth in the footnote below. 4 In Helguera v. Cirone, 178 Cal.App.2d 232 [ 3 Cal.Rptr. 64 ], we he

1967While we recognize that, as applied to children, the former doctrines are based upon policies and duties similar to the latter (see, for example, Jacobs v. Draper (1966) 274 Minn. 110 , 142 N.W.2d 628 , 634 ; Mackey v. Spradlin (Ky. 1965) 397 S.W.2d 33, 37 ), the attractive nuisance doctrine, as such, is generally applied-only to trespassers.

1967While we recognize that, as applied to children, the former doctrines are based upon policies and duties similar to the latter (see, for example, Jacobs v. Draper (1966) 274 Minn. 110 , 142 N.W.2d 628, 634 ; Mackey v. Spradlin (Ky. 1965) 397 S.W.2d 33, 37 ), the attractive nuisance doctrine, as such, is generally applied only to trespassers.

1967While we recognize that, as applied to children, the former doctrines are based upon policies and duties similar to the latter (see, for example, Jacobs v. Draper (1966) 274 Minn. 110 , 142 N.W.2d 628 , 634 ; Mackey v. Spradlin (Ky. 1965) 397 S.W.2d 33, 37 ), the attractive nuisance doctrine, as such, is generally applied-only to trespassers.

1967While we recognize that, as applied to children, the former doctrines are based upon policies and duties similar to the latter (see, for example, Jacobs v. Draper (1966) 274 Minn. 110 , 142 N.W.2d 628 , 634 ; Mackey v. Spradlin (Ky. 1965) 397 S.W.2d 33, 37 ), the attractive nuisance doctrine, as such, is generally applied-only to trespassers.

1965Still another statement of the doctrine is that one who maintains on his property a condition, instrumentality, machine, or other agency dangerous to children of tender years by reason of their inability to appreciate the peril, and of which he knows or should know, or realizes or should realize, that it involves unreasonable risk of death or serious bodily harm to such children, is under a duty to exercise reasonable care to protect them against the dangers of such agency, and is negligent if he fails to comply with this duty. ’ ’ The Restatement of Torts, section 339, states that in the pres

1965Still another statement of the doctrine is that one who maintains on his property a condition, instrumentality, machine, or other agency dangerous to children of tender years by reason of their inability to appreciate the peril, and of which he knows or should know, or realizes or should realize, that it involves unreasonable risk of death or serious bodily harm to such children, is under a duty to exercise reasonable care to protect them against the dangers of such agency, and is negligent if he fails to comply with this duty. ’ ’ The Restatement of Torts, section 339, states that in the pres

1963Co., 189 Cal.App.2d 382 [ 11 Cal.Rptr. 267 ], for the proposition that plaintiff cannot prevail in an action predicated upon the attractive nuisance doctrine.

1963Co., 189 Cal.App.2d 382 [ 11 Cal.Rptr. 267 ], for the proposition that plaintiff cannot prevail in an action predicated upon the attractive nuisance doctrine.

1961(Garcia v. Soogian, 52 Cal.2d 107, 110 [ 338 P.2d 433 ]; Courtell v. McEachen, 51 Cal.2d 448, 457 [ 334 P.2d 870 ]; Reynolds v. Willson, 51 Cal.2d 94, 103 [ 331 P.2d 48 ].) The section reads: ‘A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one of which the possessor knows or should know and

1961(Garcia v. Soogian, 52 Cal.2d 107, 110 [ 338 P.2d 433 ]; Courtell v. McEachen, 51 Cal.2d 448, 457 [ 334 P.2d 870 ]; Reynolds v. Willson, 51 Cal.2d 94, 103 [ 331 P.2d 48 ].) The section reads: ‘A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if (a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and (b) the condition is one of which the possessor knows or should know and

1960This case was later disapproved and not followed in Wilson v. City of Long Beach, 71 Cal.App.2d 235 [ 162 P.2d 658 , 163 P.2d 501]; (2) Middaugh v. Waseca Canning Co., 203 Minn. 456 [ 281 N.W. 818 ], 3 A.L.R.2d 770 , which like the Skinner case involved children hitching rides on moving vehicles. ‘‘ § 413.

1960This case was later disapproved and not followed in Wilson v. City of Long Beach, 71 Cal.App.2d 235 [ 162 P.2d 658 , 163 P.2d 501]; (2) Middaugh v. Waseca Canning Co., 203 Minn. 456 [ 281 N.W. 818 ], 3 A.L.R.2d 770 , which like the Skinner case involved children hitching rides on moving vehicles. ‘‘ § 413.

1960More recently, the Supreme Court of Tennessee held in Heaton v. Kagley (1955), 198 Tenn. 530 [ 281 S.W.2d 385 ], that the attractive nuisance doctrine did not apply in a situation where a 7 year old boy came onto an adjoining farm and climbed and rode a tractor-trailer unit and was knocked therefrom by a falling bale of hay, even though the farmer knew he was riding on the tractor along with the farmer’s son.

1960More recently, the Supreme Court of Tennessee held in Heaton v. Kagley (1955), 198 Tenn. 530 [ 281 S.W.2d 385 ], that the attractive nuisance doctrine did not apply in a situation where a 7 year old boy came onto an adjoining farm and climbed and rode a tractor-trailer unit and was knocked therefrom by a falling bale of hay, even though the farmer knew he was riding on the tractor along with the farmer’s son.

1960She argues, however, that even a licensee or trespasser may recover where injury “is occasioned by a trap or something in the nature of a concealed danger as to which the possessor of the premises has not given appropriate warning to the public.” (35 Cal.Jur.2d 609, Negligence, §100; Blaylock v. Jensen, 44 Cal.App.2d 850 [ 113 P.2d 256 ] ; see also Ashley v. Jones, 126 Cal.App.2d 328, 332 [ 271 P.2d 918 ].) But she cites no authority giving a comprehensive definition of “trap.” We have reviewed in detail the California decisions (principally arising under the form of the attractive nuisance do

1960She argues, however, that even a licensee or trespasser may recover where injury “is occasioned by a trap or something in the nature of a concealed danger as to which the possessor of the premises has not given appropriate warning to the public.” (35 Cal.Jur.2d 609, Negligence, §100; Blaylock v. Jensen, 44 Cal.App.2d 850 [ 113 P.2d 256 ] ; see also Ashley v. Jones, 126 Cal.App.2d 328, 332 [ 271 P.2d 918 ].) But she cites no authority giving a comprehensive definition of “trap.” We have reviewed in detail the California decisions (principally arising under the form of the attractive nuisance do