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AMI 1109 Issues—Attractive Nuisance—Burden of Proof

Arkansas Supreme Court Committee On Jury Instructions-Civil

Ark. Model Jury Instr., Civil AMI 1109
Arkansas Model Jury Instructions-Civil
November 2021 Update
Arkansas Supreme Court Committee On Jury Instructions-Civil
Chapter 11. Owners and Occupiers of Land
AMI 1109 Issues—Attractive Nuisance—Burden of Proof
With respect to the question of whether was negligent, has the burden of proving each of the following [three][four] propositions:
First: That a condition existed on 's premises which [he][she] knew, or reasonably should have known, involved a reasonably foreseeable risk of harm to children.
Second: That [he][she] knew, or reasonably should have foreseen, that children would likely be attracted to the area of danger.
[Third: That the expense or inconvenience to in remedying the condition would be slight in comparison to the risk of harm to children.]
[Third][Fourth]: That the condition was a proximate cause of [any injury to][the death of](Name of child).
If you find that each of these [three][four] propositions has been proved by , then you are permitted, but not required, to infer that was negligent.
[On the other hand, if you find that any of these propositions has not been proved, then cannot recover in this case.]
NOTE ON USE
Do not use final paragraph if the case is submitted on interrogatories.
In most cases the third proposition will not be in issue and should be omitted.
If there is a question of negligence on the part of the child, use AMI 304.
COMMENT
It is not necessary that the child be attracted by the dangerous condition itself; there may be some other attraction nearby. Standard Oil Co. of Louisiana v. Dumas, 183 Ark. 616, 38 S.W.2d 17 (1931).
The third proposition, that of weighing the cost of remedying the situation with the degree of hazard to the child, has not been specifically approved in Arkansas. The Court did observe in Nashville Lumber Co. v. Busbee, 100 Ark. 76, 139 S.W. 301 (1911), that dangerous machinery could have been enclosed at a cost of from $2.50 to $20.00. This matter of balancing the cost against the risk was first stated in the Restatement, Torts § 339 (1934), and has since been widely approved. Prosser, Torts, § 59 (3d ed., 1964).
The doctrine of attractive nuisance may not apply to older children. Ibid.
A pond is not ordinarily an attractive nuisance. Carmichael v. Little Rock Housing Authority, 227 Ark. 470, 473, 299 S.W.2d 198, 200 (1957) (holding that a pond was not an attractive nuisance and writing, “The weight of authority in this country is to the effect that ponds, lakes, streams, reservoirs, and other bodies of water do not constitute an attractive nuisance in the absence of any unusual element of danger.”); Jones v. Comer, 237 Ark. 500, 374 S.W.2d 465 (1964) (attractive nuisance doctrine inapplicable where there was no evidence that partly submerged boat in pond contributed to children's drownings or that bag swing at least 150 feet away from pond was involved in drownings); Cooper v. Diesel Service, Inc., 254 Ark. 743, 496 S.W.2d 383 (1973) (bank of pond that dropped off suddenly did not constitute a trap, and attractive nuisance doctrine did not apply); Powell v. ISC North, LLC, 2017 Ark. App. 394, 524 S.W.3d 458 (partially submerged truck-bed liner in pond did not mask inherently dangerous nature of pond so as to create a jury question under attractive nuisance doctrine).
In Poston v. Fears, 318 Ark. 659, 662, 887 S.W.2d 520, 522 (1994), the court did not consider whether the attractive nuisance doctrine applied in a case involving a residential swimming pool because the plaintiffs had failed to factually state a cause of action under attractive nuisance principles, but the court wrote that a case involving a residential swimming pool would be one of “first impression” and that “liability for deaths of very young children in private swimming pools may invoke different considerations, both legal and factual.”).
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