attractive nuisance doctrine in West Virginia

1946Though this Court has through the years refused to follow the doctrine of the turntable cases, and the attractive nuisance doctrine generally has not been applied in this jurisdiction, this Court in Rine v. Morris, 99 W.

1946Va. 52 , 127 S. E. 908 , has applied what at least is tantamount to the attractive nuisance doctrine where an instrumentality dangerous to children was in a place where the injured child had a right to be.

1992Love v. Virginian Power Co., 86 W.Va. 393 , 103 S.E. 352 [ (1920) ]; Waddell v. New River Co., 141 W.Va. 880 , 93 S.E.2d 473 [(1956) ]; Hatten v. Mason Realty Co., 148 W.Va. 380 , 135 S.E.2d 236 [ (1964) ]." Research has not disclosed that we have utilized this doctrine with respect to trespassing adults such as the plaintiff.

1992Love v. Virginian Power Co., 86 W.Va. 393 , 103 S.E. 352 [ (1920) ]; Waddell v. New River Co., 141 W.Va. 880 , 93 S.E.2d 473 [(1956) ]; Hatten v. Mason Realty Co., 148 W.Va. 380 , 135 S.E.2d 236 [ (1964) ]." Research has not disclosed that we have utilized this doctrine with respect to trespassing adults such as the plaintiff.

1992Love v. Virginian Power Co., 86 W.Va. 393 , 103 S.E. 352 [ (1920) ]; Waddell v. New River Co., 141 W.Va. 880 , 93 S.E.2d 473 [(1956) ]; Hatten v. Mason Realty Co., 148 W.Va. 380 , 135 S.E.2d 236 [ (1964) ]." Research has not disclosed that we have utilized this doctrine with respect to trespassing adults such as the plaintiff.

1992Love v. Virginian Power Co., 86 W.Va. 393 , 103 S.E. 352 [ (1920) ]; Waddell v. New River Co., 141 W.Va. 880 , 93 S.E.2d 473 [(1956) ]; Hatten v. Mason Realty Co., 148 W.Va. 380 , 135 S.E.2d 236 [ (1964) ]." Research has not disclosed that we have utilized this doctrine with respect to trespassing adults such as the plaintiff.

1992Love v. Virginian Power Co., 86 W.Va. 393 , 103 S.E. 352 [ (1920) ]; Waddell v. New River Co., 141 W.Va. 880 , 93 S.E.2d 473 [(1956) ]; Hatten v. Mason Realty Co., 148 W.Va. 380 , 135 S.E.2d 236 [ (1964) ]." Research has not disclosed that we have utilized this doctrine with respect to trespassing adults such as the plaintiff.

1992Love v. Virginian Power Co., 86 W.Va. 393 , 103 S.E. 352 [ (1920) ]; Waddell v. New River Co., 141 W.Va. 880 , 93 S.E.2d 473 [(1956) ]; Hatten v. Mason Realty Co., 148 W.Va. 380 , 135 S.E.2d 236 [ (1964) ]." Research has not disclosed that we have utilized this doctrine with respect to trespassing adults such as the plaintiff.

1956The so-called attractive nuisance doctrine is not recognized in this State, and the rule to that effect was reasserted in the recent case of Harper v. Cook, 139 W.

1954In Tiller v. Baisden, 128 W.Va. 126 , 35 S.E.2d 728, 729 , we held: "A controlled fire, sued to destroy trash and other refuse is not a dangerous instrumentality or agency, such as is required to be guarded against the possibility that children may be attracted thereby and suffer injury therefrom." It may also be pointed out that the attractive nuisance doctrine is not recognized in this State.

1954In Tiller v. Baisden, 128 W.Va. 126 , 35 S.E.2d 728, 729 , we held: "A controlled fire, sued to destroy trash and other refuse is not a dangerous instrumentality or agency, such as is required to be guarded against the possibility that children may be attracted thereby and suffer injury therefrom." It may also be pointed out that the attractive nuisance doctrine is not recognized in this State.

1945The attractive nuisance doctrine first came into prominence through the decision of the Supreme Court of the United States in Railroad Co. v. Stout, 17 Wall. 657 , 2 L.

1945The attractive nuisance doctrine first came into prominence through the decision of the Supreme Court of the United States in Railroad Co. v. Stout, 17 Wall. 657 , 2 L.

1945In most cases, however, the decision has turned upon the question of recognition or application of the attractive-nuisance doctrine.” In Lombardi v. Wallad, 98 Conn. 510 , 120 A. 291 , it was held that the owner of a tenement was liable to a six year old child for burns resulting from playing near a fire set by an attendant to burn rubbish, and that there was a duty to guard the fire where it was known children were likely to play near it.

1945In most cases, however, the decision has turned upon the question of recognition or application of the attractive-nuisance doctrine.” In Lombardi v. Wallad, 98 Conn. 510 , 120 A. 291 , it was held that the owner of a tenement was liable to a six year old child for burns resulting from playing near a fire set by an attendant to burn rubbish, and that there was a duty to guard the fire where it was known children were likely to play near it.

1945In Paolino v. McKendall, 24 R.I. 432 , 53 A. 268 , it was held: “Although an owner or occupant of land has knowledge that children of tender years are in the habit of going thereon to play he is under no duty or obligation to guard them from injury caused by fire set by him to consume waste materials.” In City of Harlan v. Peaveley, 224 Ky. 338 , 6 S.W. 2d 270 , the holding was that the city was not liable for the death of a four year old child as the result of burns received while playing about a fire set to a garbage pile on a privately-owned sandbar in the river, on the ground that a fire a

1945In Paolino v. McKendall, 24 R.I. 432 , 53 A. 268 , it was held: “Although an owner or occupant of land has knowledge that children of tender years are in the habit of going thereon to play he is under no duty or obligation to guard them from injury caused by fire set by him to consume waste materials.” In City of Harlan v. Peaveley, 224 Ky. 338 , 6 S.W. 2d 270 , the holding was that the city was not liable for the death of a four year old child as the result of burns received while playing about a fire set to a garbage pile on a privately-owned sandbar in the river, on the ground that a fire a

1945In Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160 , 133 S.W. 816 , it was held that: “One owes no duty to a twelve-year-old child to guard it from a fire which he has started out of doors, if the child is of sufficient intelligence and capacity to know that the fire will burn and is dangerous.” It is fair to imply from this case that had the child been of the age of the plaintiff herein, recovery would have been sustained.

1945In Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160 , 133 S.W. 816 , it was held that: “One owes no duty to a twelve-year-old child to guard it from a fire which he has started out of doors, if the child is of sufficient intelligence and capacity to know that the fire will burn and is dangerous.” It is fair to imply from this case that had the child been of the age of the plaintiff herein, recovery would have been sustained.

1945F. Bradley Lumber Co. v. Crowell (Ala.), 178 So. 66 , the holding was that the owner of premises was not liable to an eleven year old boy, who was burned by stepping through the crust formed over a burning sawdust pile, for failure to guard the same, and that the fire concealed by the crust was not an attractive nuisance. *133 It will be noted that many of these cases are decided upon the attractive nuisance doctrine, others not.

1945In Paolino v. McKendall, 24 R.I. 432 , 53 A. 268 , it was held: “Although an owner or occupant of land has knowledge that children of tender years are in the habit of going thereon to play he is under no duty or obligation to guard them from injury caused by fire set by him to consume waste materials.” In City of Harlan v. Peaveley, 224 Ky. 338 , 6 S.W. 2d 270 , the holding was that the city was not liable for the death of a four year old child as the result of burns received while playing about a fire set to a garbage pile on a privately-owned sandbar in the river, on the ground that a fire a

1945In Paolino v. McKendall, 24 R.I. 432 , 53 A. 268 , it was held: “Although an owner or occupant of land has knowledge that children of tender years are in the habit of going thereon to play he is under no duty or obligation to guard them from injury caused by fire set by him to consume waste materials.” In City of Harlan v. Peaveley, 224 Ky. 338 , 6 S.W. 2d 270 , the holding was that the city was not liable for the death of a four year old child as the result of burns received while playing about a fire set to a garbage pile on a privately-owned sandbar in the river, on the ground that a fire a

1932In Grogan v. Schiele, 53 Conn. 186 , I.