attractive nuisance doctrine in Wisconsin

1981In Angelier v. Red Star Yeast, 215 Wis. 47 , 254 N.W. 351 (1934), this court clearly set forth the “doctrine of attractive nuisance,” without so labeling it, as an extension of the land owner’s liability to the child trespasser. 12 Paraphrasing Angelier the court has in numerous cases stated the elements of the cause of action as follows: “(1) . . . that the former [possessor of real estate] maintained, or allowed to exist, upon his land, an artificial condition which was inherently dangerous to children being upon his premises .... “(2) . . . that he knew or should have known that children tr

1981In Angelier v. Red Star Yeast, 215 Wis. 47 , 254 N.W. 351 (1934), this court clearly set forth the “doctrine of attractive nuisance,” without so labeling it, as an extension of the land owner’s liability to the child trespasser. 12 Paraphrasing Angelier the court has in numerous cases stated the elements of the cause of action as follows: “(1) . . . that the former [possessor of real estate] maintained, or allowed to exist, upon his land, an artificial condition which was inherently dangerous to children being upon his premises .... “(2) . . . that he knew or should have known that children tr

1974The attractive-nuisance doctrine is grounded in negligence. . . ." [2] Id. at page 215. [3] Id. at pages 215, 216, quoting Schilz v. Walter Kassuba, Inc. (1965), 27 Wis. 2d 390, 393 , 134 N. W. 2d 453 ; quoted and followed in Kastenson v. Kastenson (1972), 54 Wis. 2d 401, 403, 404 , 195 N. W. 2d 454 . [4] Schilz v. Walter Kassuba, Inc., supra , footnote 3, at page 397. [5] Id. at page 397. [6] Id. at page 394. [7] Id. at page 394. [8] Id. at page 394. [9] Id. at page 394. [10] Id. at pages 396, 397. [11] Mazurkiewicz v. Pawinski, supra , footnote 1. [12] Id. at page 214. [13] Id. at page 216.

1974The attractive-nuisance doctrine is grounded in negligence. . . ." [2] Id. at page 215. [3] Id. at pages 215, 216, quoting Schilz v. Walter Kassuba, Inc. (1965), 27 Wis. 2d 390, 393 , 134 N. W. 2d 453 ; quoted and followed in Kastenson v. Kastenson (1972), 54 Wis. 2d 401, 403, 404 , 195 N. W. 2d 454 . [4] Schilz v. Walter Kassuba, Inc., supra , footnote 3, at page 397. [5] Id. at page 397. [6] Id. at page 394. [7] Id. at page 394. [8] Id. at page 394. [9] Id. at page 394. [10] Id. at pages 396, 397. [11] Mazurkiewicz v. Pawinski, supra , footnote 1. [12] Id. at page 214. [13] Id. at page 216.

1981This court has stated that “the attractive nuisance doctrine is grounded in negligence,” Mazurkiewicz v. Pawinski, 32 Wis.2d 211, 215 , 145 N.W.2d 186 (1966); it is “but a phase of the law of negligence,” Nechodomu v. Lindstrom, 273 Wis. 313 , 327c, 77 N.W.2d 707 , 78 N.W.2d 417 (1956).

1981This court has stated that “the attractive nuisance doctrine is grounded in negligence,” Mazurkiewicz v. Pawinski, 32 Wis.2d 211, 215 , 145 N.W.2d 186 (1966); it is “but a phase of the law of negligence,” Nechodomu v. Lindstrom, 273 Wis. 313 , 327c, 77 N.W.2d 707 , 78 N.W.2d 417 (1956).

1981This court has stated that “the attractive nuisance doctrine is grounded in negligence,” Mazurkiewicz v. Pawinski, 32 Wis.2d 211, 215 , 145 N.W.2d 186 (1966); it is “but a phase of the law of negligence,” Nechodomu v. Lindstrom, 273 Wis. 313 , 327c, 77 N.W.2d 707 , 78 N.W.2d 417 (1956).

1981This court has stated that “the attractive nuisance doctrine is grounded in negligence,” Mazurkiewicz v. Pawinski, 32 Wis.2d 211, 215 , 145 N.W.2d 186 (1966); it is “but a phase of the law of negligence,” Nechodomu v. Lindstrom, 273 Wis. 313 , 327c, 77 N.W.2d 707 , 78 N.W.2d 417 (1956).

1981In McWilliams v. Guzinski, 71 Wis.2d 67 , 60, 237 N.W.2d 437 (1976), the court said: “This case arose prior to our holding in Antoniewicz v. Reszczynski, 70 Wis.2d 836 , 236 N.W.2d 1 (1975), and we make no comment here concerning the effect of that case, if any, on attractive nuisance doctrine.” For cases applying the attractive nuisance doctrine where the plaintiff is not the trespassing child, see, e.g., Lone Star Gas Co. v. Parsons, 159 Okla. 52 , 14 P.2d 369 (1932); McGettigan v. National Bank of Washington, 320 F.2d 703 (D.C.

1981In McWilliams v. Guzinski, 71 Wis.2d 67 , 60, 237 N.W.2d 437 (1976), the court said: “This case arose prior to our holding in Antoniewicz v. Reszczynski, 70 Wis.2d 836 , 236 N.W.2d 1 (1975), and we make no comment here concerning the effect of that case, if any, on attractive nuisance doctrine.” For cases applying the attractive nuisance doctrine where the plaintiff is not the trespassing child, see, e.g., Lone Star Gas Co. v. Parsons, 159 Okla. 52 , 14 P.2d 369 (1932); McGettigan v. National Bank of Washington, 320 F.2d 703 (D.C.

1981In McWilliams v. Guzinski, 71 Wis.2d 67 , 60, 237 N.W.2d 437 (1976), the court said: “This case arose prior to our holding in Antoniewicz v. Reszczynski, 70 Wis.2d 836 , 236 N.W.2d 1 (1975), and we make no comment here concerning the effect of that case, if any, on attractive nuisance doctrine.” For cases applying the attractive nuisance doctrine where the plaintiff is not the trespassing child, see, e.g., Lone Star Gas Co. v. Parsons, 159 Okla. 52 , 14 P.2d 369 (1932); McGettigan v. National Bank of Washington, 320 F.2d 703 (D.C.

1981D.C. 1977). [10] In McWilliams v. Guzinski, 71 Wis.2d 57, 60 , 237 N.W.2d 437 (1976), the court said: "This case arose prior to our holding in Antoniewicz v. Reszczynski, 70 Wis.2d 836 , 236 N.W.2d 1 (1975), and we make no comment here concerning the effect of that case, if any, on attractive nuisance doctrine." [11] For cases applying the attractive nuisance doctrine where the plaintiff is not the trespassing child, see, e.g., Lone Star Gas Co. v. Parsons, 159 Okla. 52 , 14 P.2d 369 (1932); McGettigan v. National Bank of Washington, 320 F.2d 703 (D.C.

1981Cir. 1963), cert. den 375 U.S. 943 ; Marino v. Valenti, 259 P.2d 84 (1953); MacNeil v. Perkins, 84 Ariz. 74 , 324 P.2d 211 (1958); Johnson v. Clement F. Sculley Construction Company, 255 Minn. 41 , 95 N.W.2d 409 (1959).

1981Cir. 1963), cert. den 375 U.S. 943 ; Marino v. Valenti, 259 P.2d 84 (1953); MacNeil v. Perkins, 84 Ariz. 74 , 324 P.2d 211 (1958); Johnson v. Clement F. Sculley Construction Company, 255 Minn. 41 , 95 N.W.2d 409 (1959).

1981A person fails to exercise ordinary care when, without intending to do any wrong, he does an act or omits a precaution under circumstances in which a person of ordinary intelligence and prudence ought reasonably to foresee that such act or omission will subject him or his property, or the person or property of another to an unreasonable risk of injury or damage." [3] Coffey v. Milwaukee, 74 Wis.2d 526, 531 , 247 N.W.2d 132 (1976); Ollerman v. O'Rourke Co., Inc. 94 Wis.2d 17, 46 , 288 N.W.2d 95 (1980); Prosser, Law of Torts sec. 30, p. 143 (4th ed. 1971); 2 Restatement (Second) of Torts, sec. 2

1981A person fails to exercise ordinary care when, without intending to do any wrong, he does an act or omits a precaution under circumstances in which a person of ordinary intelligence and prudence ought reasonably to foresee that such act or omission will subject him or his property, or the person or property of another to an unreasonable risk of injury or damage." [3] Coffey v. Milwaukee, 74 Wis.2d 526, 531 , 247 N.W.2d 132 (1976); Ollerman v. O'Rourke Co., Inc. 94 Wis.2d 17, 46 , 288 N.W.2d 95 (1980); Prosser, Law of Torts sec. 30, p. 143 (4th ed. 1971); 2 Restatement (Second) of Torts, sec. 2

1981Cir. 1963), cert. den 375 U.S. 943 ; Marino v. Valenti, 259 P.2d 84 (1953); MacNeil v. Perkins, 84 Ariz. 74 , 324 P.2d 211 (1958); Johnson v. Clement F. Sculley Construction Company, 255 Minn. 41 , 95 N.W.2d 409 (1959).

1981Cir. 1963), cert. den 375 U.S. 943 ; Marino v. Valenti, 259 P.2d 84 (1953); MacNeil v. Perkins, 84 Ariz. 74 , 324 P.2d 211 (1958); Johnson v. Clement F. Sculley Construction Company, 255 Minn. 41 , 95 N.W.2d 409 (1959).

1981In McWilliams v. Guzinski, 71 Wis.2d 67 , 60, 237 N.W.2d 437 (1976), the court said: “This case arose prior to our holding in Antoniewicz v. Reszczynski, 70 Wis.2d 836 , 236 N.W.2d 1 (1975), and we make no comment here concerning the effect of that case, if any, on attractive nuisance doctrine.” For cases applying the attractive nuisance doctrine where the plaintiff is not the trespassing child, see, e.g., Lone Star Gas Co. v. Parsons, 159 Okla. 52 , 14 P.2d 369 (1932); McGettigan v. National Bank of Washington, 320 F.2d 703 (D.C.

1981D.C. 1977). [10] In McWilliams v. Guzinski, 71 Wis.2d 57, 60 , 237 N.W.2d 437 (1976), the court said: "This case arose prior to our holding in Antoniewicz v. Reszczynski, 70 Wis.2d 836 , 236 N.W.2d 1 (1975), and we make no comment here concerning the effect of that case, if any, on attractive nuisance doctrine." [11] For cases applying the attractive nuisance doctrine where the plaintiff is not the trespassing child, see, e.g., Lone Star Gas Co. v. Parsons, 159 Okla. 52 , 14 P.2d 369 (1932); McGettigan v. National Bank of Washington, 320 F.2d 703 (D.C.

1981Cir. 1963), cert. den 375 U.S. 943 ; Marino v. Valenti, 259 P.2d 84 (1953); MacNeil v. Perkins, 84 Ariz. 74 , 324 P.2d 211 (1958); Johnson v. Clement F. Sculley Construction Company, 255 Minn. 41 , 95 N.W.2d 409 (1959).

1981Cir. 1963), cert. den 375 U.S. 943 ; Marino v. Valenti, 259 P.2d 84 (1953); MacNeil v. Perkins, 84 Ariz. 74 , 324 P.2d 211 (1958); Johnson v. Clement F. Sculley Construction Company, 255 Minn. 41 , 95 N.W.2d 409 (1959).

1981Cir. 1963), cert. den 375 U.S. 943 ; Marino v. Valenti, 259 P.2d 84 (1953); MacNeil v. Perkins, 84 Ariz. 74 , 324 P.2d 211 (1958); Johnson v. Clement F. Sculley Construction Company, 255 Minn. 41 , 95 N.W.2d 409 (1959).

1981Cir. 1963), cert. den 375 U.S. 943 ; Marino v. Valenti, 259 P.2d 84 (1953); MacNeil v. Perkins, 84 Ariz. 74 , 324 P.2d 211 (1958); Johnson v. Clement F. Sculley Construction Company, 255 Minn. 41 , 95 N.W.2d 409 (1959).

1981A person fails to exercise ordinary care when, without intending to do any wrong, he does an act or omits a precaution under circumstances in which a person of ordinary intelligence and prudence ought reasonably to foresee that such act or omission will subject him or his property, or the person or property of another to an unreasonable risk of injury or damage." [3] Coffey v. Milwaukee, 74 Wis.2d 526, 531 , 247 N.W.2d 132 (1976); Ollerman v. O'Rourke Co., Inc. 94 Wis.2d 17, 46 , 288 N.W.2d 95 (1980); Prosser, Law of Torts sec. 30, p. 143 (4th ed. 1971); 2 Restatement (Second) of Torts, sec. 2

1981A person fails to exercise ordinary care when, without intending to do any wrong, he does an act or omits a precaution under circumstances in which a person of ordinary intelligence and prudence ought reasonably to foresee that such act or omission will subject him or his property, or the person or property of another to an unreasonable risk of injury or damage." [3] Coffey v. Milwaukee, 74 Wis.2d 526, 531 , 247 N.W.2d 132 (1976); Ollerman v. O'Rourke Co., Inc. 94 Wis.2d 17, 46 , 288 N.W.2d 95 (1980); Prosser, Law of Torts sec. 30, p. 143 (4th ed. 1971); 2 Restatement (Second) of Torts, sec. 2

1981In the Fleury case, supra, 82 Wis.2d at 114 , the minor “testified at trial that she was fully aware of the danger of looking into the cannon; that the tennis ball would be launched at great speed and that anyone who might be in the way could be injured.” The trial court held that as a matter of law the minor’s knowledge disqualified her from any application of the attractive nuisance doctrine, and this court upheld the trial court saying “it is apparent that the fourth element of attractive nuisance has not been established.” In the case at bar, plaintiff testified that he did not appreciate

1981In the Fleury case, supra, 82 Wis.2d at 114 , the minor "testified at trial that she was fully aware of the danger of looking into the cannon; that the tennis ball would be launched at great speed and that anyone who might be in the way could be injured." The trial court held that as a matter of law the minor's knowledge disqualified her from any application of the attractive nuisance doctrine, and this court upheld the trial court saying "it is apparent that the fourth element of attractive nuisance has not been established." In the case at bar, plaintiff testified that he did not appreciate

1981In McWilliams v. Guzinski, 71 Wis.2d 67 , 60, 237 N.W.2d 437 (1976), the court said: “This case arose prior to our holding in Antoniewicz v. Reszczynski, 70 Wis.2d 836 , 236 N.W.2d 1 (1975), and we make no comment here concerning the effect of that case, if any, on attractive nuisance doctrine.” For cases applying the attractive nuisance doctrine where the plaintiff is not the trespassing child, see, e.g., Lone Star Gas Co. v. Parsons, 159 Okla. 52 , 14 P.2d 369 (1932); McGettigan v. National Bank of Washington, 320 F.2d 703 (D.C.

1981In McWilliams v. Guzinski, 71 Wis.2d 67 , 60, 237 N.W.2d 437 (1976), the court said: “This case arose prior to our holding in Antoniewicz v. Reszczynski, 70 Wis.2d 836 , 236 N.W.2d 1 (1975), and we make no comment here concerning the effect of that case, if any, on attractive nuisance doctrine.” For cases applying the attractive nuisance doctrine where the plaintiff is not the trespassing child, see, e.g., Lone Star Gas Co. v. Parsons, 159 Okla. 52 , 14 P.2d 369 (1932); McGettigan v. National Bank of Washington, 320 F.2d 703 (D.C.

1976Canal Co. (1974), 66 Wis. 2d 185 , 187, 224 N. W. 2d 202 , which reiterated the language originally used in Angelier v. Red Star Yeast (1934), 215 Wis. 47, 53 , 254 N. W. 351 : (1) “. . . that the . . . [possessor of real estate] maintained, or allowed to exist, upon his land, an artifi cial condition which was inherently dangerous to children being upon his premises (2) “that he knew or should have known that children trespassed or were likely to trespass upon his premises (3) “that he realized or should have realized that the structure erected or the artificial condition maintained by him wa

1976Canal Co. (1974), 66 Wis. 2d 185 , 187, 224 N. W. 2d 202 , which reiterated the language originally used in Angelier v. Red Star Yeast (1934), 215 Wis. 47, 53 , 254 N. W. 351 : (1) “. . . that the . . . [possessor of real estate] maintained, or allowed to exist, upon his land, an artifi cial condition which was inherently dangerous to children being upon his premises (2) “that he knew or should have known that children trespassed or were likely to trespass upon his premises (3) “that he realized or should have realized that the structure erected or the artificial condition maintained by him wa

1954Zartner v. George (1914), 156 Wis. 131 , 145 N. W. 971 .

1954Zartner v. George (1914), 156 Wis. 131 , 145 N. W. 971 .

1952Jur., Municipal Corporations, p. 283, sec. 588, cited in Britten v. Eau Claire (1952), 260 Wis. 382 , 51 N. W. (2d) 30 .

1952Jur., Municipal Corporations, p. 283, sec. 588, cited in Britten v. Eau Claire (1952), 260 Wis. 382 , 51 N. W. (2d) 30 .

1952The attractive-nuisance doctrine as it is applied in Wisconsin generally, without particular reference to municipalities, is that one who “leaves an instrumentality or premises where children have a right to be or where children by reason of their childish instincts are likely for some apparent reason to be attracted” must “exercise ordinary care under all the circumstances to prevent injury to children.” Routt v. Look, 180 Wis. 1, 8 , 191 N. W. 557 .

1952The attractive-nuisance doctrine as it is applied in Wisconsin generally, without particular reference to municipalities, is that one who “leaves an instrumentality or premises where children have a right to be or where children by reason of their childish instincts are likely for some apparent reason to be attracted” must “exercise ordinary care under all the circumstances to prevent injury to children.” Routt v. Look, 180 Wis. 1, 8 , 191 N. W. 557 .

1948Roberson was required only to exercise reasonable care in moving the truck and the jury has found, on sufficient evidence, that he did so.” The underlying basis of the attractive-nuisance doctrine is fully discussed in Powell v. Ligon, 334 Pa. 250, 254 , 5 Atl. (2d) 373.