From: eager@eagercon.com (Michael J. Eager)
Subject: Attractive Nuisance (was East Bay Regional Parks)
Reply-To: eager@eagercon.com
Organization: Eager Consulting
Date: Wed, 7 Oct 1992 19:20:27 GMT

In article 7023@transfer.stratus.com, leadfoot@bigbootay.sw.stratus.com (Mark Curtis) writes:

You were putting words into Phil Ngai's mouth.  I'm sure Phil can speak for
himself, but you raise a number of points which I'd like to address.
 
>  By definition children are not responsible for their actions.

There is a concept of "diminished capacity" where certain people are held to
a lower standard of responsibility than others.  Children, since their abilities
and judgement are not fully developed and their experience is not broad are not
held to as high a standard of responsibility as an adult.  

>
>  By definition it doesn't matter whether a child is trespassing or
>     not, the property owner is liable for anything that happens.

It does matter.  But it is not the only factor.  A tresspass, by an adult or
child, does not excuse the owners liability for consequences which he could
have reasonablly forseen and prevented.

>
>  By definition children are stupid and will make mistakes.  This makes
>     any and all adults in the area responsible for them.  Even if
>     they aren't their parents and didn't want them on their property.

By definition, children will act with less understanding of dangers and the
consequences of their actions.  This imposes a duty upon all adults to avoid
creating an unreasonable hazzard, and if they are aware of such a hazzard,
to take reasonable corrective action.

>
>  By definition children are too important to not do anything and every
>     thing possible to protect them.  Even if the cost and risk is
>     forced upon a third party who doesn't want them around and can't
>     control the actions, judgement, and values taught to the child.

No. You must take the same precautions that a "reasonably prudent person at
the same time and place" would have taken.  

>
>  By definition children should never assume any risks or harm due to
>     their activities, even if their parents are neglegent.  If their
>     parent is neglegent, any and all adults are forced to assume the
>     task of protecting the child.  The neglegent parent isn't responsible.

No, children and their parents do assume the risks of harm due to their
activities.  Parents, who are negligent, are liable.  But someone elses liability
does not eliminate your duty and your liability.   

>
>  By definition children aren't capable of learning and following simple
>     rules and values like trespassing and respect.  Even if the child
>     knows they're doing something they were told not to, the property
>     owner is responsible.

See above.  Children are expected to follow rules and laws, but the understanding
is that children have less ability to understand these rules, less ability to
forsee the consequences of their actions, and less judgment about the propriety
of their actions.  Again, your duty and liability is independent of and not
conditioned upon the responsibilities of the child or its parents.

>  It doesn't matter if the neighborhood children damage your property and
>     trespass.  If they get hurt while on your property, trespassing or
>     not, the owner is responsible.

It does matter.  The children and their parents are liable for damage to your
property.  If they get hurt, as a result of your negligence, you are liable
and the fact that they were tresspassing is only a mitigating factor.
>
>  It doesn't matter if the parent doesn't control their child's actions
>     and location.  If the child sneaks onto your property and gets
>     hurt the property owner is responsible.  The neglegent parent sues
>     for damages.

It does matter.  If they get hurt, as a result of your negligence, you are 
liable and the fact that the parents failed to exercise reasonable control is only 
a mitigating factor.

>
>This sends clear messages to both parents and children:
>  You're not responsible for your actions!  Someone will assume the
>  risk and cost for you.  It isn't important or required for parents
>  to teach their children basic values like respect and trespassing,
>  because the bottom line is they aren't responsible.

No.  This sends a clear message that people are responsible for their own
actions or negligence.  The failure, or assumed failure, by one party to 
exercise good judgement is not an excuse for another party to act in a 
negligent or irresponsible fashion.  The assumption that everybody else will
act in a fashion to prevent an accident from happening, so that you do not
need to take reasonable precautions, is not well founded.

>  Children can ignore the wishes of their neighbors and do whatever they
>  want.  If the parent is neglegent in controlling the child the neighbor
>  is forced to do whatever is required to protect the uncontrolled and
>  unwanted child.  Neighbors are expected to just assume the responsiblity
>  and damages resulting from another's children with no way to control
>  the child's actions and values.

Again, no.  The neighbor is expected to do whatever is required to protect
any and all children (and others) from unreasonable hazzards, whether the
parent exercises adequate supervison or not.  

>
>  Property owners are always responsible even if the child knows it is
>  somewhere it isn't wanted and/or doing something it was told not to do.
>  Even if the child is breaking the law at the time, the child and its
>  parent aren't the responsible party if they get hurt.

Property owners are always responsible for their property.  Someone else's
negligence does not remove your responsibility.


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