Elliott v. Nagy
This text of 488 N.E.2d 853 (Elliott v. Nagy) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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In this appeal, appellant urges this court to reconsider its long-standing rejection of the attractive nuisance doctrine and to now adopt that doctrine in Ohio. Given the facts and circumstances of the instant case, we are not inclined to do so.
It is undisputed in the instant case that this little girl was not invited upon appellees’ property and that her presence in their backyard was unknown to appellees. Ordinarily, a landowner owes no duty to undiscovered trespassers other than to refrain from injuring such trespassers by willful or wanton conduct. See Prosser & Keeton, Torts (5 Ed. 1984) 397, Section 58. However, the doctrine of attractive nuisance, set forth in the Restatement of the Law 2d, Torts (1965) 197, Section 339,1 is an exception to this principle as it applies to children. The attractive nuisance doctrine creates a duty in a landowner (where there was none before) to use ordinary care to prevent injury to child trespassers.
Historically, this court has been steadfast in its opposition to the doctrine. In Railroad Co. v. Harvey (1907), 77 Ohio St. 235, paragraph one of the syllabus, we held that “[i]t is not the duty of an occupier of land to exercise care to make it safe for infant children who come upon it without invitation but merely by sufferance.” We reaffirmed that holding in Hannan v. Ehrlich (1921), 102 Ohio St. 176; Sharp Realty Co. v. Forsha (1930), 122 Ohio St. 368; and Signs v. Signs (1954), 161 Ohio St. 241 [53 O.O. 110]. We have not favored attractive nuisance, as we noted in Ehrlich, supra, because this doctrine imposes a greater burden to protect children on members of the community (who are often strangers to a child and his family) than is imposed on the parents themselves.
We are now asked to reconsider these past decisions and adopt the attractive nuisance doctrine as set forth in the Restatement. This court has always been willing to re-examine its judicially created doctrines. See, e.g., Haverlack v. Portage Homes, Inc. (1982), 2 Ohio St. 3d 26 (abolition of sovereign immunity with respect to municipalities); Kirchner v. Crystal (1984), 15 Ohio St. 3d 326 (abolition of parental immunity); Shearer v. Shearer (1985), 18 Ohio St. 3d 94 (abrogation of interspousal immunity). [61]*61The instant case, however, presents no compelling reasons meriting the adoption of the attractive nuisance doctrine.
The death of this child was a tragedy. When such a tragedy happens, the first reaction, quite naturally, may be to cast about for fault or some explanation of why the tragedy occurred. In some situations, however, no one is at fault. There is, in these instances, no explanation other than the ability, well known to every parent, of an active and inquisitive child to wander in search of adventure and the random cruelty of fate which sometimes turns adventure into catastrophe.
In the instant case, a child under the watchful eyes of the grandparents whom she was visiting vanished in a few moments and wandered a considerable distance to the backyard pool of totally unsuspecting neighbors, where she somehow climbed the pool’s access ladder and got into the water. Appellant contends that if the attractive nuisance doctrine is adopted there will be questions of fact as to whether appellees exercised reasonable care in guarding their backyard and pool against just such instances as this. We believe, however, that it is not realistic to charge ap-pellees with the duty of protecting uninvited visitors at all times. It would be unfair to subject these parties to the lengthy, costly and uncertain process of determining liability based on the attractive nuisance doctrine when the facts and circumstances of the instant case show that this tragedy was apparently the result of circumstances for which no one in good conscience can be blamed.
It was exactly this type of unavoidable accident recognized by Justice Oliver Wendell Holmes in his classic book, The Common Law (1881):
“Why is a man not responsible for the consequences of an act innocent in its direct and obvious effects, when those consequences would not have followed but for the intervention of a series of extraordinary, although natural, events? The reason is, that, if the intervening events are of such a kind that no foresight could have been expected to look out for them, the defendant is not to blame for having failed to do so. * * *” Id. at 92.
“The general principle of our law is that loss from accident must lie where it falls, and this principle is not affected by the fact that a human being is the instrument of misfortune. But relatively to a given human being anything is accident which he could not fairly have been expected to contemplate as possible, and therefore to avoid. * * *” Id. at 94. See, also, Prosser & Keeton, Torts, supra, at 162, Section 29.
We thus decline appellant’s invitation to adopt the attractive nuisance doctrine and conclude that summary judgment was proper. We hold that the attractive nuisance doctrine will not extend tort liability to the owner of a home swimming pool where the presence of a child who was injured or drowned therein was not foreseeable by the property owner.
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
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Cite This Page — Counsel Stack
488 N.E.2d 853, 22 Ohio St. 3d 58, 22 Ohio B. 77, 1986 Ohio LEXIS 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elliott-v-nagy-ohio-1986.