Elliott v. Nagy

• Decision Date: 05 February 1986
• Docket Number: No. 85-266,85-266
• Citation: 22 OBR 77,22 Ohio St.3d 58,488 N.E.2d 853
• Parties: , 22 O.B.R. 77 ELLIOTT, Admr., Appellant, v. NAGY et al., Appellees.
• Court: Ohio Supreme Court

Page 58

22 Ohio St.3d 58

488 N.E.2d 853, 22 O.B.R. 77

ELLIOTT, Admr., Appellant, v. NAGY et al., Appellees.

No. 85-266.

Supreme Court of Ohio.

Feb. 5, 1986.

Syllabus by the Court

The attractive nuisance doctrine will not extend tort liability to the owner of a residential swimming pool where the presence of a child who was injured or drowned therein was not foreseeable by the property owner.

On Sunday, July 11, 1982, appellant, Roger Elliott, and his wife left two of their children, John and nineteen-month-old Penny, at the residence of the maternal grandparents, Jerry and Evelyn Holland.

The Hollands lived in the village of Burgoon, Ohio. The Elliotts had dropped off the children there in order to make arrangements for the funeral of Mr. Elliott's father.

On Monday, July 12, 1982, John and Penny were watched by the Hollands as they played about the house that day with the Holland's own children. That evening, around 5 p.m., the children were called into the house for dinner. When last seen, Penny was playing alone near the garage just before she was to have been brought in to wash up for dinner.

After a lapse of three to five minutes, Mrs. Holland noticed that Penny was missing. Mrs. Holland, the other children and neighbors immediately launched a frantic and extensive search of the neighborhood streets and yards. It is estimated that Penny was found approximately seven to eight minutes later. The child had wandered over to the backyard swimming pool of Daniel and Barbara Nagy, appellees. Their property is estimated to be between one hundred twenty and three hundred feet from the Holland home.

Penny had apparently climbed the access ladder to appellees' above-ground pool and drowned. Mrs. Holland testified on deposition that she was amazed the nineteen-month-old child had been able to climb into the pool:

"The bottom step I would say was too high for her to climb up on. I don't see how she ever got up there."

Penny had apparently never before been on appellees' property. Appellees averred that they were unaware, until after the discovery of the child's body, that Penny was on their property on the day of her death.

On May 26, 1983, appellant, as administrator of Penny's estate, filed a negligence complaint, sounding in attractive nuisance, in the Court of Common Pleas of Sandusky County. Appellant alleged that appellees knew or should have known that children would trespass on their property and that their swimming pool involved an unreasonable risk of death or serious harm to children. Appellant also alleged that appellees had violated a duty to exercise reasonable care toward child trespassers. Appellees moved for summary judgment on grounds that the attractive nuisance doctrine is not recognized in Ohio. The trial court granted the motion.

The court of appeals also found that appellant's complaint was based on the attractive nuisance doctrine, which is not recognized in Ohio, and affirmed the trial court's grant of summary judgment to appellees.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Scranton & Solze and Norman P. Solze, Fremont, for appellant.

Meyer & Kocher and Douglas O. Meyer, Port Clinton, for appellees.

CELEBREZZE, Chief Justice.

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, 83 N.E. 66, 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, 131 N.E. 504; Sharp Realty Co., v. Forsha (1930), 122 Ohio St. 368, 171 N.E. 598; and Signs v. Signs (1954), 161 Ohio St. 241, 118 N.E.2d 411 . 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, 442 N.E.2d 749 (abolition of sovereign immunity with respect to municipalities); Kirchner v. Crystal (1984), 15 Ohio St.3d 326, 474 N.E.2d 275 (abolition of parental immunity); Shearer v. Shearer (1985), 18 Ohio St.3d 94, 480 N.E.2d 388 (abrogation of interspousal immunity). The 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 appellees 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...