ISSUE 2 - Ohio Recognizes The Attractive Nuisance Doctrine

            If a person trespasses upon another’s land and is injured, that injured person, generally speaking, cannot assert a claim against the landowner unless the injury occurred because the landowner acted in willful, wanton or reckless fashion.  Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312.  However, if that injured trespasser is a child, the landowner will be held to a higher standard in Ohio, as the Ohio Supreme Court has now adopted the Attractive Nuisance Doctrine set forth in the Restatement of the Law, 2d. Torts.  While most states have followed the Attractive Nuisance Doctrine for many years, Ohio did not, until Bennett v. Stanley (2001), 92 Ohio St.3d 35.  In Bennett, a 5 year old drowned after wandering into a neighbor’s back yard pool that had basically been abandoned and was full of moss, algae and stagnate rain water.  (Exacerbating this tragedy, the boy’s mother drowned as well, trying to rescue the boy.)  The Bennett court held that the landowner could be liable for the death of the son (and the mother) under the Attractive Nuisance Doctrine.

            In order to establish an Attractive Nuisance case, the practitioner must establish:

(1)       the injury occurred at a place known to be frequented by children;

(2)       the situs contains a condition reasonably known to be dangerous to children;

(3)       the child, because of youth, could not be expected to appreciate the risk;

(4)       the cost of rectifying the dangerous condition is slight as compared to the utility of the existence of the dangerous condition; and

(5)       the landowner fails to exercise reasonable care in eliminating the danger.

            We recently used the Attractive Nuisance Doctrine successfully in Butler County to assert a claim on behalf of a young boy, at the time age 10, who had been seriously injured by playing on stacked lumber in a lumber yard that abutted the mobile home park where the boy lived.  The boy sustained a serious injury to his lower leg when the unsecured lumber he was climbing on gave way and landed upon him.  The case had all the elements of Attractive Nuisance.  (1) Children frequently wandered from the adjacent mobile home park into the lumber yard; (2) children loved to jump from lumber stack to lumber stack; (3) the injured child had no appreciation for the terrible danger lurking in the stacked lumbar weighing over one ton; (4) the danger could have been rectified by fixing a few holes in the lumber yard fence.

At Thomas J. Diehl & Co., LLC, we have been handling personal injury claims in Southwest Ohio since 1988.  We regularly work with counsel in ethical fee sharing arrangements.  Thomas J. Diehl is a Fellow of the Litigation Counsel of America and a member of the Million Dollar Advocates Forum.

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