South-Western Legal Studies in Business

Irrigation Pond Not Attractive Nuisance
Description

A child fell through the ice on an irrigation pond and drowned. The Delaware high court held that the owner of the pond was not negligent for creating an attractive nuisance by taking additional steps to prevent access to the pond by children.

Topic Real and Personal Property
Key Words

Premises Liability; Negligence; Wrongful Death; Attractive Nuisance

C A S E   S U M M A R Y
Facts

Three children left home to play at a community center located next to a golf course (NCC). NCC has an irrigation pond next to the community center that supplies water to the golf course. The children, age 8, 11, and 13, climbed over a split rail fence, ignoring the "No Trespassing" and "No Skating" signs and went on the ice-covered pond. The eight-year-old fell through the ice and drowned. His mother sued NCC for negligence, contending that the pond is an attractive nuisance. The trial court held for NCC. Plaintiff appealed.

Decision

Affirmed. Landowners only duty to trespassers is not to intentionally, willfully, or wantonly injure them. However, a possessor of land can be liable for injuries to trespassing children if 1) 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 2) 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 harm to children, and 3) the children, because of their youth, do not realize the risk, and 4) the utility to the possessor of maintaining the condition and burden of eliminating the danger are slight as compared with the risk to children involved, and 5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children. The irrigation pond was not an attractive nuisance; it was a natural pond surrounded by a fence.

Citation

Butler v. Newark Country Club, 909 A.2d 111 (Sup. Ct., Del., 2006)

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