TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Tuesday, April 11, 2006

Attractive Nuisance and Seventeen-Year-Olds

Never thought those two concepts went together?  Well, they do in Pennsylvania, at least enough to get past summary judgment, and it's a good case to consider for a hypothetical.

Brief version of the facts: Two seventeen-year-olds climbed atop a stopped train car and were severely burned by the 12,000-volt caternary wires; they asserted that they did not believe the wires were live.

Here's the opinion [PDF].  After some introductory material, the court first concludes that there's an issue of fact as to whether the defendant (Amtrak) acted wantonly:

In this case, the evidence presented by the plaintiffs makes it clear that catenary power lines present a grave danger to anyone who comes near them, that the parked and laddered freight car made it possible for individuals to come near the catenary line, and that the public in general is not likely to know about the dangers involved with the catenary lines.  I find this evidence is sufficient to pose a genuine issue of material fact regarding whether Amtrak’s actions were wanton in choosing to leave the freight cars under the energized lines for an extended period of time.  A reasonable jury may conclude that Amtrak had sufficient warning of the possibility of the plaintiffs’ peril given the frequency of trespassers reported in the area, and the prolonged time the cars sat on the tracks.  I will deny Amtrak’s motion for summary judgment on this issue.

The court then turns to the attractive nuisance doctrine, first concluding that the plaintiffs at least present an issue of fact precluding summary judgment as to whether the doctrine applies to them at all:

In this case, the plaintiffs were minors at the time of the accident.  Although a plausible argument can be made as to why the court should set an arbitrary age limit on the applicability of § 339 given Pennsylvania’s negligence standard, no Pennsylvania court prior to this proceeding has so acted.  I find that it would be an inappropriate reading of the case law, and an unprecedented legal jump not warranted at the summary judgment stage of a case, to bar plaintiffs’ use of § 339 as a matter of law.  The plaintiffs have shown they were minors, or children in the eyes of the law, at the time of the trespass, and as such, the defendants have failed to meet their burden of proving that § 339 can not apply.  A genuine issue of material fact exists as to whether the plaintiffs are children within the meaning of § 339.

The court then concludes that the plaintiffs could survive summary judgment on the remaining issues relating to attractive nuisance (including the plaintiffs' failure to appreciate the risk, interestingly).

In this case, the defendants have shown Birdwell saw the power lines above the train.  Both plaintiffs, as seventeen year-olds, knew the dangers associated with power lines and wires.  Both plaintiffs were old enough to realize that the power lines above the train were dangerous and knew to not come in contact with them.   On the other hand, although both plaintiffs knew the risks involved in intermeddling with electricity, neither knew the risk associated with arcing, nor did they realize the electricity connected to the freight train remained on.  The plaintiffs have presented some evidence that seventeen year-old males generally do not have fully mature brains, and as such can not fully control their impulses or appreciate some risks. . . .  Viewing all of the evidence in the light most favorable to the plaintiffs, I find that it is for a jury to decide whether the plaintiffs failed to appreciate the risks because of their youth.  The combination of the plaintiffs medical reports regarding seventeen year-olds generally, and that the plaintiffs failed to realize the lines were energized meets the plaintiffs mere scintilla threshold.  A genuine issue of material fact exists in this case as to whether the plaintiffs failed, because of their youth to recognize the risk of power lines directly overhead a train or whether such a danger is obvious to seventeen year-olds.

The court concludes with a section finding issues of fact as to whether the plaintiffs themselves acted wilfully or wantonly and in denying summary judgment on punitive damages.

The case is particularly interesting to juxtapose with cases relating to capability to be found negligent.  In Pennsylvania, apparently one becomes presumptively capable of negligence at age 14.

[via WSJ Law Blog.]

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Tracked on Apr 11, 2006 6:59:02 PM


Insurance Coverage and Attractive Nuisance

Although the Attractive Nuisance Doctrine has many criticisms, it is recognized in the majority of jurisdictions around the country. It is a form of premises liability which transforms trespassing children to invitees when a property contains an artificial condition unusually alluring to children of a young age. As an invitee, the owner of the property owes a duty of reasonable care to the child (trespassers are owed no such duty). The reasonable care one must exercise takes into consideration the age of the child and the nature of the property. For example, if the artificial condition upon the land is an old sand pit filled with water, the owner’s duty might be discharged by placing a warning sign and a fence around the perimeter. In other words, liability does not attach to the landowner who takes reasonable precautions (at least in theory). This makes that rationale for the doctrine quite clear.

Most tort actions serve the primary purpose of making the victim whole for the injury they have suffered. An ancillary purpose is one of deterrence to tortfeasors. On the other hand, allowing punitive damages for exceptionally tortuous conduct serves the primary purpose of deterring not only the bad actor in the particular case, but all other potential bad actors. The Attractive Nuisance Doctrine’s primary purpose is to prevent injuries and deaths to trespassing children by imposing liability on landowners. This characteristic differentiates the doctrine from typical negligence actions and illustrates its similarity to punitive damages. It is not designed to make victims whole; it is designed to deter “bad” behavior.

The potential for liability encourages property owners to make their land safer for strangers who have no right to be on their property. It serves to protect a certain class of trespassers from injury by compelling proactive behavior on the part of the landowner. This imposition on private property rights further distinguishes Attractive Nuisance from tradition negligence causes of action. No matter what you may think about the doctrine’s imposition, most can at least agree that the purpose served is a noble one in theory. It is also one severely eroded by allowing insurance to cover attractive nuisance liability.

By allowing insurance to pick up the tab for liability under Attractive Nuisance, an insured will act with less care than they would if they were required to bear the risk themselves (moral hazard). The incentive to safeguard one’s property disappears and more accidents are likely to result. People with dangerous artificial conditions on their land are also more likely to obtain insurance coverage (adverse selection).

This is especially likely if the cost of safeguarding the property would be more than the present value of premiums charged. Additionally, safeguarding property only lessens the likelihood of being found liable in case of an accident. Insurance coverage (ignoring policy limits) guarantees a property owner indemnification and the provision of a defense. This makes the incentive to purchase insurance stronger among the high-risk population and serves to increase premium rates charged to others.

Even after introducing policy limits to the analysis, there is still an advantage to insuring over safeguarding. If a landowner with an attractive nuisance is risk-neutral, they will multiply the probability of loss times the expected amount of liability to come up with an expected loss. As long as the expected loss is lower than the policy limit and the present value of the cost of premiums are less than the cost to safeguard, the risk-neutral landowner will choose to insure rather than safeguard.

If the interest of protecting trespassing children is so compelling as to call for invading a landowner’s exclusive rights in his property, isn’t the argument for barring insurance coverage equally compelling? The presence of coverage swallows the justification for the rule. Consistency in public policy demands the elimination of either the Attractive Nuisance Doctrine, or insurance coverage for liability thereunder.

Then again, maybe the scheme is really a rule of loss allocation without any particular moral or public justification. The justification is removed because accidents are just as likely to occur in a jurisdiction recognizing the doctrine and allowing coverage as they are in jurisdictions without the doctrine. Maybe the scheme acknowledges that children are always going get hurt or killed when trespassing on others property; the scheme merely ensures that a there is some level of payment from “deep-pocketed” insurance companies guaranteed to a victim’s family since many landowner’s lack other assets to pay. Perhaps I am too cynical and the likelihood of an award being higher than policy limits serves as enough of an incentive to safeguard property. Or perhaps the prospect of being viewed by society as responsible for a child’s death serves enough of an incentive to owners.

I am generally a strong proponent of property rights and am loath to impose liability on a landowner to any trespasser. I also believe strongly in the freedom of parties to contract as they wish. However, if we accord property rights the utmost respect, accidents involving trespassing children are more likely to occur. If we accord the freedom to contract the utmost respect, accidents involving trespassing children are again more likely to occur. Only by imposing substantial restrictions on both rights, is the public policy embodied by the Attractive Nuisance Doctrine actually served.

Stanley K. Wilhoit
J.D. Candidate Class of 2007
University of Houston Law Center

Posted by: Stan Wilhoit | May 10, 2007 11:49:16 AM

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