South-Western Legal Studies in Business

Attractive Nuisance Doctrine Not Applied to 10-Year Old Who Drowned
Description

South Carolina high court held that the owner of a canal where a ten-year old fell in and drowned, was not liable for negligence under the attractive nuisance doctrine as the boy was old enough to understand the danger, especially since he could not swim.

Topic Real and Personal Property
Key Words

Premises Liability; Attractive Nuisance Doctrine; Child

C A S E   S U M M A R Y
Facts

Ten-year old Terry and his older brother were playing along a canal owned by International Paper (IP). They found an old net along the edge of the water and cast it into the canal. Terry fell into the canal and, unable to swim, drowned. His guardian sued IP for negligence and attractive nuisance. The jury found Terry 75% at fault; IP 25% at fault. The judge set the verdict aside and held for IP. The court of appeals affirmed. The guardian appealed.

Decision

Affirmed. The attractive nuisance doctrine provides that where the owner of land brings or artificially creates something which, from its nature, is especially attractive to children, he is bound to take reasonable pains to see that the dangerous thing is so guarded that children will not be injured in coming into contact with it. This is a claim for premises liability that relies on the social duty to protect children from dangers of which they are unlikely to be aware. Whereas adult trespassers would be barred from suit; there is a possibility of obligation to protect children. Here there was no unreasonably dangerous condition, and Terry was old enough to know he could not swim and the dangers of water.

Citation

Henson v. International Paper Co., 650 S.E.2d 74 (Sup. Ct., S.C., 2007)

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