attractive nuisance doctrine in Washington

1960The single question to be determined on this appeal is whether, on the basis of the facts in the record (pleadings, depositions and affidavits), it should be said, as a matter of law, that the attractive-nuisance doctrine is not applicable; i.e., that the respondents, as a matter of law, owed no duty of reasonable care to the trespassing child. *829 [2] The leading case in this jurisdiction relative to the attractive-nuisance doctrine is Schock v. Ringling Bros. and Barnum & Bailey Combined Shows (1940), 5 Wn. (2d) 599, 105 P. (2d) 838 .

1960The leading case in this jurisdiction relative to the attractive-nuisance doctrine is Schock v. Ringling Bros. and Barnum & Bailey Combined Shows (1940), 5 Wn. (2d) 599, 105 P. (2d) 838 .

1996See, e.g., Cope v. Doe, 102 Ill.2d 278 , 80 Ill.Dec. 40 , 464 N.E.2d 1023 (1984); Baker v. Lane County, 28 Or.

1996See e.g., Cope v. Doe, 102 Ill. 2d 278 , 464 N.E.2d 1023 (1984); Baker v. Lane County, 28 Or.

1969Our cases of Brannan v. Harmon, 56 Wn.2d 826 , 355 P.2d 792 (1960) and Mathis v. Swanson, 68 Wn.2d 424 , 413 P.2d 662 (1966) are illustrative of the fact that the application of the law of attractive nuisance to the facts in the individual case is a treacherous area for the court to make its determination, as a matter of law, that the doctrine of attractive nuisance does not apply.

1969Our cases of Brannan v. Harmon, 56 Wn.2d 826 , 355 P.2d 792 (1960) and Mathis v. Swanson, 68 Wn.2d 424 , 413 P.2d 662 (1966) are illustrative of the fact that the application of the law of attractive nuisance to the facts in the individual case is a treacherous area for the court to make its determination, as a matter of law, that the doctrine of attractive nuisance does not apply.

1979The elements which must be present for that doctrine to apply in a given case are set out in the leading case of Schock v. Ringling Bros. & Barnum & Bailey Combined Shows, 5 Wn.2d 599 , 105 P.2d 838 (1940), and since restated in Mathis v. Swanson, 68 Wn.2d 424 , 413 P.2d 662 (1966), Holland v. Niemi, 55 Wn.2d 85 , 345 P.2d 1106 (1959), and McDermott v. Kaczmarek, 2 Wn.

1979The elements which must be present for that doctrine to apply in a given case are set out in the leading case of Schock v. Ringling Bros. & Barnum & Bailey Combined Shows, 5 Wn.2d 599 , 105 P.2d 838 (1940), and since restated in Mathis v. Swanson, 68 Wn.2d 424 , 413 P.2d 662 (1966), Holland v. Niemi, 55 Wn.2d 85 , 345 P.2d 1106 (1959), and McDermott v. Kaczmarek, 2 Wn.

1969In rejecting this contention, the court cited with approval *95 language from Bjork v. Tacoma, 76 Wash. 225, 228 , 135 P. 1005 (1913), which described this rule as a “cruel and wicked doctrine, unworthy of a civilized jurisprudence . . .” After an extensive quote from the Bjork case, our court said in Helland v. Arland, supra, at 35: The Bjork case is not determinative of the question now presented because that decision is finally rested on the doctrine of attractive nuisance.

1969In rejecting this contention, the court cited with approval *95 language from Bjork v. Tacoma, 76 Wash. 225, 228 , 135 P. 1005 (1913), which described this rule as a “cruel and wicked doctrine, unworthy of a civilized jurisprudence . . .” After an extensive quote from the Bjork case, our court said in Helland v. Arland, supra, at 35: The Bjork case is not determinative of the question now presented because that decision is finally rested on the doctrine of attractive nuisance.

1960Appellant contends that the cases of Meyer v. General Electric Co., 46 Wn. (2d) 251, 280 P. (2d) 257 (1955), and Mail v. M.R.

1955Meyer v. General Electric Co., 46 Wn. (2d) 251, 254, 280 P. (2d) 257 . [5] In considering the applicability of the doctrine of attractive nuisance, it may be well to bear in mind the basic principle that the primary legal responsibility for the protection of children of tender years from accidents and injuries rests on the shoulders of their parents.

1979See Pocholec v. Giustina, 224 Ore. 245 , 355 P.2d 1104 (1960); Courtell v. McEachen, 51 Cal. 2d 448 , 334 P.2d 870 (1959); Nechodomu v. Lindstrom, 273 Wis. 313 , 77 N.W.2d 707 , 78 N.W.2d 417 (1956).

1979See Pocholec v. Giustina, 224 Ore. 245 , 355 P.2d 1104 (1960); Courtell v. McEachen, 51 Cal. 2d 448 , 334 P.2d 870 (1959); Nechodomu v. Lindstrom, 273 Wis. 313 , 77 N.W.2d 707 , 78 N.W.2d 417 (1956).

1979In Sherman v. Seattle, 57 Wn.2d 233 , 356 P.2d 316 (1960), we affirmed a jury verdict for the plaintiff, a child of three, despite our conclusion that the attractive nuisance doctrine was not applicable.

1979In Sherman v. Seattle, 57 Wn.2d 233 , 356 P.2d 316 (1960), we affirmed a jury verdict for the plaintiff, a child of three, despite our conclusion that the attractive nuisance doctrine was not applicable.

1979See Pocholec v. Giustina, 224 Ore. 245 , 355 P.2d 1104 (1960); Courtell v. McEachen, 51 Cal. 2d 448 , 334 P.2d 870 (1959); Nechodomu v. Lindstrom, 273 Wis. 313 , 77 N.W.2d 707 , 78 N.W.2d 417 (1956).

1979See Pocholec v. Giustina, 224 Ore. 245 , 355 P.2d 1104 (1960); Courtell v. McEachen, 51 Cal. 2d 448 , 334 P.2d 870 (1959); Nechodomu v. Lindstrom, 273 Wis. 313 , 77 N.W.2d 707 , 78 N.W.2d 417 (1956).

1969Our cases of Brannan v. Harmon, 56 Wn.2d 826 , 355 P.2d 792 (1960) and Mathis v. Swanson, 68 Wn.2d 424 , 413 P.2d 662 (1966) are illustrative of the fact that the application of the law of attractive nuisance to the facts in the individual case is a treacherous area for the court to make its determination, as a matter of law, that the doctrine of attractive nuisance does not apply.

1969Our cases of Brannan v. Harmon, 56 Wn.2d 826 , 355 P.2d 792 (1960) and Mathis v. Swanson, 68 Wn.2d 424 , 413 P.2d 662 (1966) are illustrative of the fact that the application of the law of attractive nuisance to the facts in the individual case is a treacherous area for the court to make its determination, as a matter of law, that the doctrine of attractive nuisance does not apply.

1960My views on this point have been recently stated in the concurring opinion in Mills v. Orcas Power & Light Company (1960), ante p. 807, 355 P. (2d) 781 .

1960My views on this point have been recently stated in the concurring opinion in Mills v. Orcas Power & Light Company (1960), ante p. 807, 355 P. (2d) 781 .

1960Statements of abstract principles of law, which are correct, are not prejudicial, when they do not mislead the jury.’ Herndon v. Seattle, 11 Wn. (2d) 88. 118 P. (2d) 421 .” In view of our holding that appellant owed respondent the duty to use reasonable care regardless of his status, these assigned errors are without merit.

1960Statements of abstract principles of law, which are correct, are not prejudicial, when they do not mislead the jury.' Herndon v. Seattle, 11 Wn. (2d) 88, 118 P. (2d) 421 ." In view of our holding that appellant owed respondent the duty to use reasonable care regardless of his status, these assigned errors are without merit.

1960A similar situation was before this court in Bronk v. Davenny, 25 Wn. (2d) 443, 171 P. (2d) 237 (1946).

1960A similar situation was before this court in Bronk v. Davenny, 25 Wn. (2d) 443, 171 P. (2d) 237 (1946).

1960At the same time, whereas an open fire "... brings home to ... [children] strongly the possibility of danger ..." ( Clark v. Bremerton (1939), 1 Wn. (2d) 689, 97 P. (2d) 112 , holding that the attractive-nuisance doctrine is not applicable where injury is caused by contact with an open flame), a concealed fire has no such selfcontained warning device.

1960At the same time, whereas an open fire “. . . brings home to . . . [children] strongly the possibility of danger . . .” (Clark v. Bremerton (1939), 1 Wn. (2d) 689, 97 P. (2d) 112 , holding that the attractive-nuisance doctrine is not applicable where injury is caused by contact with an open flame), a concealed fire has no such self-contained warning device.

1947We will not refer to the cases from other jurisdictions cited by appellant, but will refer to some of the decisions of this court which appellant cites, namely, Talkington v. Washington Water Power Co., 96 Wash. 386 , 165 Pac. 87 , and Clark v. Longview Public Service Co., 143 Wash. 319 , 255 Pac. 380 .

1947We will not refer to the cases from other jurisdictions cited by appellant, but will refer to some of the decisions of this court which appellant cites, namely, Talkington v. Washington Water Power Co., 96 Wash. 386 , 165 Pac. 87 , and Clark v. Longview Public Service Co., 143 Wash. 319 , 255 Pac. 380 .

1947Co., 35 Wash. 55 , 76 Pac. 526 , and ending with Holm v. Investment & Securities Co., 195 Wash. 52 , 79 P. (2d) 708 .]” Appellant, undoubtedly realizing that he could not show that respondent had wilfully or wantonly injured Gerald Deffland, has relied upon the attractive nuisance doctrine as a basis for his right to recover, contending that it is an exception to the degree of care ordinarily owed to a licensee.

1947Co., 35 Wash. 55 , 76 Pac. 526 , and ending with Holm v. Investment & Securities Co., 195 Wash. 52 , 79 P. (2d) 708 .]” Appellant, undoubtedly realizing that he could not show that respondent had wilfully or wantonly injured Gerald Deffland, has relied upon the attractive nuisance doctrine as a basis for his right to recover, contending that it is an exception to the degree of care ordinarily owed to a licensee.

1947Co., 35 Wash. 55 , 76 Pac. 526 , and ending with Holm v. Investment & Securities Co., 195 Wash. 52 , 79 P. (2d) 708 .]” Appellant, undoubtedly realizing that he could not show that respondent had wilfully or wantonly injured Gerald Deffland, has relied upon the attractive nuisance doctrine as a basis for his right to recover, contending that it is an exception to the degree of care ordinarily owed to a licensee.

1947Co., 35 Wash. 55 , 76 Pac. 526 , and ending with Holm v. Investment & Securities Co., 195 Wash. 52 , 79 P. (2d) 708 .]” Appellant, undoubtedly realizing that he could not show that respondent had wilfully or wantonly injured Gerald Deffland, has relied upon the attractive nuisance doctrine as a basis for his right to recover, contending that it is an exception to the degree of care ordinarily owed to a licensee.

1947We will not refer to the cases from other jurisdictions cited by appellant, but will refer to some of the decisions of this court which appellant cites, namely, Talkington v. Washington Water Power Co., 96 Wash. 386 , 165 Pac. 87 , and Clark v. Longview Public Service Co., 143 Wash. 319 , 255 Pac. 380 .

1947We will not refer to the cases from other jurisdictions cited by appellant, but will refer to some of the decisions of this court which appellant cites, namely, Talkington v. Washington Water Power Co., 96 Wash. 386 , 165 Pac. 87 , and Clark v. Longview Public Service Co., 143 Wash. 319 , 255 Pac. 380 .