From: eager@eagercon.com (Michael J. Eager)
Subject: Re: Attractive Nuisance
Reply-To: eager@eagercon.com
Organization: Eager Consulting
Date: Fri, 9 Oct 1992 22:13:53 GMT

In article 14098@synaptx.Synaptics.Com, joe@synaptx.Synaptics.Com (Joe Decker) writes:
>eager@eagercon.com (Michael J. Eager) writes:
>> A tresspass, by an adult or
>> child, does not excuse the owners liability for consequences 
>> which he could have reasonablly forseen and prevented.
>[The above was hand-typed in for reasons I won't go into, I take
>responsbility for any typos resulting.]
>
>I have a few questions about the attractive nuisance concept which
>perhaps some of you could enlighten me about.

I'm probably going out on a limb :-) but here are my comments:

>
>It seems to me that the reasonable danger involved in having a pool in
>my backyard (assume a normally-sized fence around it) is much smaller
>than that posed by any climbable tree.  I have, as a child, watched a
>friend get carried away in an ambulance after climbing a neighbor's
>tree and falling.

I might disagree about the danger of trees.  Children who can climb a tree
are usually older and better able to survive a fall.  Most falls are not
fatal.  Children who fall into a pool are often very young, and drownings
are common.

>
>Q1: Of course this would be decided by a jury, but I would be
>interested in speculation or precedent about whether a property-owner
>would be found liable in those circumstances.

My guess is that there is a difference between a natural hazzard and an
artificial hazzard.  There would also be the question about whether the
owner knew (or should have known) that the tree was a clear danger.  

>
>Q2: Should I chop down all the trees in my yard?  [Sadly, this seems
>to be far too popular on my street right now, probably for different
>reasons.  Sigh.]

No.  But you should take a look and see if it is possible for a child to 
climb on one without your knowledge. 

>
>Q3: Does San Jose's ordinance requiring me to keep three street trees
>on my property absolve me for accidents occuring on those street
>trees?

No idea.  But the trees on the street are usually the city's responsibility.
(If a tree on the street in front of your house is part dead, the city is 
responsible for comming out and trimming the dead branches.  If it falls on 
someone, they are liable.  Since SJ has lots of bucks to pay off liability
claims, they are not very responsive to problems like this.)

>
>Q4: If so, does that ordinance carry with it an implication that the
>keeping of trees (other than those required) is reasonable, and
>therefore affect your answer to questions 1 & 2?

I doubt that any attractive nuisance ordinance mentions trees specifically.

>
>[In case anyone wants to try and read my position on previous issues
>into the above question, let me quickly set the record staight.
>- I believe that the concept of 'attractive nuisance' is reasonable in
>  some circumstances.

Yup.

>- I do not believe that it is always properly used (no surprise), and
>  often this may be the result of understandably (but not justifiably)
>  sympathetic juries.

Yup.

>- I do believe that parents of children have some responsibilty for
>  their children, and for this reason I oppose the use of rules to
>  make the world safer to support the abdication of this
>  responsibility.  

Yup.

>- I believe that the world will never be entirely safe for
>  unsupervised children, at least in our lifetime.]

Yup.

>
>Comments on my questions are welcome.
>
>Joe Decker          
>joe@synaptics.com, decker@alumni.caltech.edu       


Under CA law, as I understand it, the jury can issue an award to a parent
based on whatever reason they chose, but a judge does not have to follow
the finding.  If the judge feels that the conclusion that the jury reached
could only have been arived at by ignoring material evidence or is based
solely on irrelevent information, the judge can set aside the verdict.  This
can address your second point above.

---
Michael J. Eager		Michael.Eager@eagercon.com
Eager Consulting		(415) 325-8077 
1960 Park Boulevard, Palo Alto, CA 94306-1141

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