WPI 120.04 Attractive Nuisance

Use this instruction if there is a condition upon the premises that may reasonably be expected to attract children and the plaintiff is a young child who is either a trespasser or a licensee.

If there is no claim that plaintiff was a business invitee, then omit the first bracketed paragraph. The first bracketed paragraph is to be used when there is a jury question whether or not the plaintiff was a business invitee.

If the jury is also to be instructed on the duty owed to a trespasser, assuming that the plaintiff does not prevail on a theory of attractive nuisance, then either this instruction should be modified to reflect the duty owed to a trespasser or a modified version WPI 120.02 (Duty to Trespasser) should also be given.

The final paragraph of the version of this instruction contained in the 6th edition has been removed for this edition. This instruction, like all of the other instructions of this chapter, is intended to set forth the elements of duty owned by an owner or occupier of land towards those who enter the premises. Other elements of necessary proof, such as causation and harm, are covered in other instructions, which will need to be selected by lawyers and the court based on the specific issues of the trial. See e.g. WPI 21.02 (Burden of Proof on the Issues—No Affirmative Defense). Former WPI 120.04 was a “hybrid”, which contained some but not all of the elements, along with a correct statement of duty. It thus has been modified in this edition to conform to the format of the other duty instructions.

This instruction is primarily derived from Schock v. Ringling Bros. and Barnum & BaileyCombined Shows, 5 Wn.2d 599, 105 P.2d 838 (1940), overruled on other grounds as noted in Laudermilk v. Carpenter, 78 Wn.2d 92, 457 P.2d 1004 (1969), and Holland v. Niemi, 55 Wn.2d 85, 345 P.2d 1106 (1959). The second paragraph is adapted from Schock v. Ringling Bros., 5 Wn.2d at 606.

Age of children. The doctrine of attractive nuisance applies only to young children of “tender years.” See Schock v. Ringling Bros. and Barnum & BaileyCombined Shows, 5 Wn.2d 599, 105 P.2d 838 (1940), overruled on other grounds as noted in Laudermilk v. Carpenter, 78 Wn.2d 92, 457 P.2d 1004 (1969), and the cases cited therein. In Hanson v. Freigang, 55 Wn.2d 70, 345 P.2d 1109 (1959), the court held that a 15-year-old is not a child of tender years. The court defined a child of “tender years” as one who is incapable of deliberating and acting upon his or her own experience and judgment because of insufficient age, knowledge, experience, intelligence, judgment, and discretion.

Contributory or comparative negligence. In Schneider v. City of Seattle, 24 Wn.App. 251, 600 P.2d 666 (1979), the court held that contributory or comparative negligence is separate from the issue whether an attractive nuisance standard of negligence has been met and held that the former comparative negligence statute, RCW 4.22.010, has no effect on the doctrine of attractive nuisance. The court specifically held that incapacity of a child to comprehend the danger (the third element of this instruction) relates to the duty owed to the child by the defendant rather than the contributory negligence of the child.

Dangerous instrumentalities. A jury must determine whether the instrumentality was “dangerous in itself” when that issue is in dispute. Mathis v. Swanson, 68 Wn.2d 424, 413 P.2d 662 (1966).

Landowner's knowledge. An owner or occupier of land is liable under the doctrine of attractive nuisance for injuries caused by a dangerous condition created on the land by another only if the owner or occupier knows or should have known of that dangerous condition. Daggett v. Tiffany, 2 Wn.App. 309, 467 P.2d 629 (1970).

In Seattle First Nat. Bank v. State, 14 Wn.App. 166, 540 P.2d 443 (1975), the court held that the seller of land remains subject to liability for injuries caused by an attractive nuisance on the land when the nuisance is known or ought to be known to the seller but not to the buyer. This potential liability terminates only when the seller discloses the risk to the buyer or the buyer has had a reasonable opportunity to discover and remedy the risk. The court in Wilson v. Thermal Energy, Inc., 21 Wn.App. 153, 583 P.2d 679 (1978), reaffirmed that a sale of land does not necessarily give the former owner immunity from liability growing out of defects on the premises.

Bodies of water. If the child is an invitee on the premises, it is unnecessary to prove attractive nuisance in order to establish the land owner's duty to exercise ordinary care. The attractive nuisance doctrine does not apply to a natural body of water, at least for child trespassers, see Ochampaugh v. City of Seattle, 91 Wn.2d 514, 588 P.2d 1351 (1979), but a land owner may be liable for a breach of ordinary care in protecting child invitees from dangers presented by such waters, Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 914 P.2d 728 (1996) (declining to extend Ochampaugh to child invitees).These principles apply not only to natural bodies of waters, but also to artificial bodies of water having natural characteristics and no hidden dangers. Ochampaugh v. City of Seattle, 91 Wn.2d at 520–24; see Cultee v. City of Tacoma, 95 Wn.App. 505, 526–30, 977 P.2d 15 (1999) (concluding that tidal water flooding a road after a levee failure is not a natural body of water).

Activities conducted on the land. With regard to activities, as opposed to conditions created on the land, a possessor of land has a duty to exercise reasonable care to protect a very young child from injury, if the possessor is aware of the child's presence on the land. This duty applies regardless of the child's status on the land and even though no “attractive nuisance” is involved. See Tincani v. Inland Empire Zoological Soc., 124 Wn.2d 121, 130, 875 P.2d 621 (1994); Ochampaugh v. City of Seattle, 91 Wn.2d 514, 527, 588 P.2d 1351 (1979); Sherman v. City of Seattle, 57 Wn.2d 233, 356 P.2d 316 (1960).

Effect of RCW 4.24.200 and .210—Recreational land use statute. For further discussion of the recreational land use statute, see the Comment to WPI 120.07 (Liability to Business or Public Invitee—Condition of Premises—Condition Not Caused by the Owner or Occupier).