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Paugh vs. The City of Seattle

In Paugh vs. The City of Seattle, certain exceptions to the common law doctrine of exempting landowners of any liability pertaining trespassers were delineated in the case of children trespassers. The doctrine came to be called the “attractive nuisance” principle which aids in meting out judgment in tort cases involving injury of child trespassers on public or private property. In this case, several conditions should be present for a situation to be considered an attractive nuisance and thereby, attaching liability on the part of the owner of the property.

In tort law of Washington State, liability attaches to a land possessor if the injury was the result of “an artificial condition upon the land” and under the following conditions (Paugh vs. City of Seattle): (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. (n. p. ) The attractive nuisance doctrine, however, is not uniformly applied to all cases with children getting injured in pools, recreation lots, or ponds.

The doctrine rules in favor of liability to the property owner depending on contextual factors. Using the provisions of the attractive nuisance doctrine, this paper determines whether the land owner or possessor is subject to liability under the following facts and circumstances: Case 1: The plaintiff’s sons drowned in a river on the city’s property that ran near their home (not a pond). The City cannot be held liable for the drowning of the plaintiff’s two sons because the nature of the property did not constitute an attractive nuisance.

The river, although owned by the City, is “a body of water having natural characteristics and no hidden dangers not ordinarily found in such bodies of water” (Paugh v. City of Seattle). Although the river was located on city property, it could not be considered as having “an artificial condition” for it to be considered an attractive nuisance. Case 2: They drowned in an artificial body of water, a pond created by filling in a gravel pit dug originally for commercial purposes, but now used by the neighborhood for recreation.

The owners of the property should be held liable for the drowning of children trespassers in this case. The facts and circumstances surrounding this case clearly constitute an attractive nuisance. First, an artificial condition was imposed upon the land, which was originally just earth but was dug up and transformed into a pond. Second, the recreational value of the property itself makes it extremely attractive to children, who are likely to trespass on the property out of curiosity and of their natural inclination for play and adventure.

Third, it would be virtually impossible for the owners of the property to be unaware of the risk and danger that the recreational pond would pose to children. Fourth, because the property is used for recreational purposes, the children cannot appreciate the risks of entering into the property unguarded. Fifth, the expense to be shouldered by the owners of the property is disproportionate to the risk of drowning that the property itself poses to children trespassers.

Hence, in this case, tort law would favor the plaintiffs and hold the owners of the property accountable for damages. Case 3: They drowned in a lake when they were swept over a small water-fall that was not visible until they were in the lake. In this case, the owners of the property could be held liable for the death of the children if it can be proven that sufficient warning was not given to advise the public of the existence of a small waterfall that poses extreme risk and danger not only to children but even to adults.

Despite being a natural body of water, the lake poses an attractive nuisance to children because it caters to their adventurous and exploring nature. The owners of the property could not say that they do not foresee the possibility of children trespassers so they have the responsibility of eliminating the danger of drowning that occurs often when bodies of water are concerned. Case 4: They drowned in an old, open, abandoned well located in an undeveloped lot in a subdivision.

A path went by the well, over which children chased each other. In this case, the owners of the property are clearly liable for failing to exert sufficient measures to prevent and eliminate the danger of injury caused by an open, abandoned well. The facts of the case represent the property as a case of attractive nuisance. First of all, the abandoned well was located in a subdivision, a residential area where children will be expected to nurture their curiosity and thirst for play.

Hence, owners of the property should have foreseen that children will be expected to trespass into the property and should have taken measures to ensure that no untoward incidents will happen as a result of their failure to secure the property. It is clear that an open well is a safety hazard. The owners should have closed the well, which is a responsibility of minimal expense compared to the danger of leaving such wells open poses to children.

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