Kessler v. Mortenson

• Decision Date: 05 December 2000
• Docket Number: No. 981847.,981847.
• Citation: 16 P.3d 1225,2000 UT 95
• Parties: Patricia KESSLER, on behalf of her minor child, Eric Kessler, Plaintiff and Appellant, v. Randy MORTENSON, and/or CRM Construction, Stephen Sheffield, and John Does I through V, Defendants and Appellees.
• Court: Utah Supreme Court

16 P.3d 1225

2000 UT 95

Patricia KESSLER, on behalf of her minor child, Eric Kessler, Plaintiff and Appellant, v. Randy MORTENSON, and/or CRM Construction, Stephen Sheffield, and John Does I through V, Defendants and Appellees.

No. 981847.

Supreme Court of Utah.

December 5, 2000.

Fred R. Silvester, William B. Lockhart, Spencer Siebers, Salt Lake City, and Aaron J. Prisbrey, St. George, for plaintiff.

Jeffery C. Peatross, R. Phillip Ivie, David N. Mortensen, Provo, and William J. Hansen, Karra J. Porter, Salt Lake City, for defendants.

WILKINS, Justice:

¶ 1 Plaintiff Patricia Kessler, on behalf of her minor child, Eric Kessler, appeals two orders granting defendants' motions for summary judgment. Six-year-old Eric Kessler was injured while playing in a partially-constructed home. The trial court determined that Eric was a trespasser and, relying on two cases which held that the attractive nuisance doctrine was inapplicable to injuries to children at residential construction sites, Taylor v. United Homes, Inc., 21 Utah 2d 304, 445 P.2d 140 (1968) and Featherstone v. Berg, 28 Utah 2d 94, 498 P.2d 660 (1972), granted summary judgment in favor of Defendant Sheffield and Defendants Mortenson and CRM Construction.

¶ 2 We overrule Taylor and Featherstone and reverse the orders granting summary judgment.

BACKGROUND

¶ 3 On October 11, 1993, six-year-old Eric Kessler entered a partially-constructed house to play hide-and-go-seek. While playing, Eric backed into and fell through a hole in the floor where the staircase was going to be built. He was injured as a result of the fall. Consequently, on his behalf, his mother sued the builder, Randy Mortenson and/or CRM Construction, and the property owner and developer, Stephen Sheffield.

¶ 4 The defendants moved for summary judgment based on Taylor and Featherstone, arguing that they owed no duty to Eric because he was a trespasser. The defendants asserted that the attractive nuisance doctrine, which, as a general rule, obligates landowners to exercise reasonable care to safeguard children from dangerous conditions on their property, is not applicable under Taylor and Featherstone to cases where a trespassing child is injured on a residential construction site. Therefore, the defendants argued, they were entitled to summary judgment. The trial court determined that Eric was a trespasser and granted the defendants' motions for summary judgment because Taylor and Featherstone barred, as a matter of law, consideration of the attractive nuisance doctrine. Accordingly, the plaintiff's claim was dismissed.

STANDARD OF REVIEW

¶ 5 We review the trial court's summary judgment ruling for correctness. See Aurora Credit Servs., Inc. v. Liberty W. Dev., Inc., 970 P.2d 1273, 1277 (Utah 1998)

; Certified Sur. Group, Ltd. v. UT Inc., 960 P.2d 904, 905-06 (Utah 1998). "We consider only whether the trial court correctly applied the law and correctly concluded that no disputed issues of material fact existed." Aurora Credit Servs.,

970 P.2d at 1277. This is the standard of review we apply because summary judgment is appropriate only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Utah R. Civ. P. 56(c).

ANALYSIS

I. THE ATTRACTIVE NUISANCE DOCTRINE

¶ 6 The attractive nuisance doctrine is an exception to the minimal duty owed by a landowner to a trespasser. The doctrine provides, under appropriate circumstances, for a greater duty owed by landowners to child trespassers than to adult trespassers. In Taylor v. United Homes, Inc., 21 Utah 2d 304, 445 P.2d 140 (1968), and Featherstone v. Berg, 28 Utah 2d 94, 498 P.2d 660 (1972), this court determined that as a matter of law the attractive nuisance doctrine was inapplicable to cases where children were injured on residential construction sites. Under Taylor and Featherstone, the duty a landowner owed a child trespassing onto a residential construction site was the same duty owed to adult trespassers. This departure in Taylor and Featherstone from the general applicability of the attractive nuisance doctrine was made with little analysis and no clear policy statement to support the change. Defendants profess, however, that Taylor and Featherstone should not be overturned because they are grounded in sound policy. We disagree.

¶ 7 The rule of Taylor and Featherstone did not require possessors of land to exercise reasonable care to eliminate a danger or to protect children from a risk when they knew or had reason to know children who trespassed on their property could be injured. We believe the better policy is to hold possessors of land accountable for physical injuries to children caused by an artificial condition if the plaintiff can satisfy the elements of section 339 of the Restatement (Second) of Torts.

¶ 8 Defendants contend that allowing the attractive nuisance doctrine to be applied to residential construction sites would place an unnecessary burden on homebuilders. They argue that builders will have to place fencing around the construction sites. Defendants also insist that this rule will lead to an increase in insurance premium costs for contractors, a cost which would be passed on to consumers, and therefore result in an increase in the price of homes.

¶ 9 Requiring the landowner to take steps to decrease or prevent the risk of injury to children is not an unnecessary burden. Residential construction sites are temporary hazards created by the homebuilder. They are, by definition, in a residential area where children are frequently present. In addition, the burden imposed on the homebuilder of minimizing or eliminating the hazard to children is a temporary burden almost exclusively within the control of the homebuilder.

¶ 10 By permitting the attractive nuisance doctrine to be applied to residential construction projects, homebuilders and landowners will be encouraged to minimize or eliminate dangers that trespassing children may be exposed to on the site. Given the rapidly changing nature of a residential construction project, the homebuilder is in the best position to recognize hazards and to protect children from the danger. Certainly parents are not absolved from the responsibility of protecting their children from danger. Nevertheless, parents cannot always prevent their children from disobedience and trespass. Children, by definition, lack mature judgment. It is because children trespass that the attractive nuisance doctrine developed as an exception to the otherwise minimal duty owed to trespassers. Moreover, the attractive nuisance doctrine recognizes that children, because of their various ages and levels of maturity, may be incapable of understanding or appreciating dangers or risks on the premises. See, e.g., Restatement (Second) Torts § 339(c) (1965); Goll v. Muscara, 211 Pa.Super. 93, 235 A.2d 443, 446 (1967).

¶ 11 Whether the attractive nuisance doctrine is applicable must be analyzed on a case-by-case basis, with the limited exception of irrigation canals.¹ The trial court must consider the facts and circumstances surrounding a particular injury to determine whether the elements of the rule can be satisfied. Indeed, our prior attractive nuisance cases have suggested that the rule should be applied contextually. See, e.g., Loveland v. Orem City Corp., 746 P.2d 763, 772 (Utah 1987)

. Except for certain limited conditions, such as irrigation canals, the trend has been to "reject all fixed and arbitrary categories and to require each case to be considered in light of its own peculiar facts." Id.

¶ 12 We are not persuaded that residential construction presents conditions that justify placing it in a special category. The trial court should not be prohibited from applying the attractive nuisance doctrine simply because the condition that injures a child is located on a residential construction site. We find no policy reasons or common factual circumstances that bar applicability of the doctrine where a residential construction site is the location of a child's injury. Whether the doctrine is applicable to an injury to a child on a residential construction site should be weighed on a case-by-case basis.

¶ 13 For decades, in cases where the attractive nuisance doctrine was applicable, this state has applied the rule as enunciated in Brown v. Salt Lake City, 33 Utah 222, 93 P. 570 (1908).² This rule differs from the rule in section 339 of the Second Restatement of Torts in that the Brown rule, among other differences, relies on the concept of "allurement" to trespass. In years past we have been invited to adopt the rule as stated in the Restatement. See, e.g., Trujillo v. Brighton-North Point Irrigation Co., 746 P.2d 780, 781 (Utah 1987)

; Loveland, 746 P.2d at 772. We have previously noted that the Utah rule and the rule in the Restatement differ, but we have never adopted the Restatement. See Loveland, 746 P.2d at 772 (indicating that whether the case "is analyzed under the attractive nuisance doctrine as enunciated in Brown v. Salt Lake City or under the Restatement's rule is not outcome determinative") (footnotes omitted); and Weber v. Springville City, 725 P.2d 1360, 1365 (Utah 1986) (noting that the rule as stated in the Restatement differs from the doctrine followed in Utah and concluding that both rules are limited to artificial conditions).

¶ 14 In rejecting Featherstone and Taylor, we also part with the attractive nuisance rule in Brown in favor of Restatement (Second) Torts § 339. Section 339 is a more accurate and complete statement of the attractive nuisance doctrine. Consequently, we adopt Section 339 as the rule in Utah.³ Section 339 provides as follows:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land

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