From: brunner@telebit.com (Eric Brunner)
Subject: Re: Attractive Nuisance Common LAw( was: East Bay Regional . . .)
Organization: Telebit Corporation; Sunnyvale, CA, USA
Date: Mon, 12 Oct 1992 18:07:16 GMT

In article <7fIk02Zr25JO01@JUTS.ccc.amdahl.com> tjc50@juts.ccc.amdahl.com (Terry Carroll) writes:

[in reply to one of my notes re: when A.N. became "law", omitted.]

>Now, here's my point, which seems to have gone past you (I won't address 
>whether it was a bad catch on your part or a wild pitch on mine :-) ):

It is likely that any fault for loosing the ball is mine -- do keep in mind
that a small number of people have generated an astonishing number of posts
to misc.kids denying the existance of A.N., or wishing it away. Some of 
these people appear to be, well, cranks -- inclined to bit children as a
matter of principle.

>Your comment was that "The N.A. liability issue was settled in the US with 
>the turntable case."  My point is that the only court system that can settle 
>something for the US is the federal system.  This is a case of deciding state 
>law, and federal courts don't have jurisdiction in this kind of case.  The 
>most they may do is (in theory, anyway) apply state law as it exists, and 
>then only if they're deciding a state claim that worked it's way into federal 
>courts through diversity of citizenship or other means.
>
>So it's up to the individual states.  And, no state court can decide for 
>other states.

You are right, there are three or four states which don't appear to have
a children's exception for trespass -- whether they really don't have A.N.
is conditional on their standards in related law -- an exception in liability,
or, curiously, when the "nuisance" is a parked truck in the streets "within
the normal circulation" of the injured. Where you are "wrong" IMHO is to apply
constitutional reasoning where application of the common law would suffice,
albiet in three of four states, with caveats as noted.

The notion that no state court can decide for other states is also somewhat
misapplied (IMHO). It is routine to find foreign decisions cited as the basis
for some appelate finding in state cases, e.g., Cal. citing Ill. and the
reverse... not to mention the use of Deleware law in commercial law. As you
note, foreign cites do not become law until used within a state, nor those
in the 2nd Restatement -- personally I wouldn't want to be the respondent
in a good A.N. case in one of those three or four remaining states without
explicit A.N., due to the non-negligable likelyhood that on appeal my name
would figure promenently in future case books as the case "settling" A.N.
in that state.

>So to say "The N.A. liability issue was settled in the US with the turntable 
>case" is misinformation.  I suspected it was based on something factual, and 
>wanted to find out what the grain of truth in it was. 

Well, we can suppose that two out of two torts teachers are wrong, or that
being "right" means "without exception in time, place, or substance", or
that ... Oh heck. Go ahead, be right. Note that I _only_ post misinformation,
I couldn't possibly spend the time (or have the present knowledge) to draft
an error-free draft on any substantive body of law.... An if I could, this
isn't exactly the first publishing venue that suggests itself. Any exceptions
to this are pure happenstance, to which I am blissfully unaware.

Abstracting a remark:

	My point is that the only court system that can settle
	something for the US is the federal system.

There is of course, in addition to federal law, treaty law as a source of
uniform jurisdiction (see for instance, the Hague Convention on Child
Abduction)... which I've personally used, though prior to the deposit of
the instrument of ratification... it is now law, in the US (and Belgium).

Back to debugging.
-- 
Eric Brunner Tule Network Services
uucp: uunet!practic!brunner
trying to understand multiprocessing is like having bees live inside your head.

Newsgroups: misc.legal