From: brunner@telebit.com (Eric Brunner)
Subject: Re: Attractive Nuisance
Organization: Telebit Corporation; Sunnyvale, CA, USA
Date: Tue, 13 Oct 1992 06:35:02 GMT

In article <1992Oct13.051423.8327@adobe.com> pngai@adobe.com (Phil Ngai) writes:
>In article <1bcsrvINNhdt@smaug.West.Sun.COM> dab@ism.isc.com (Dave Butterfield) writes:
>>Really?  Can you cite a court opinion stating that parents were
>>not lax in their parental duties under such circumstances?
>
>I think the turntable case is a pretty good example.
>
If I take Mr. Butterfield's drift correctly, it won't. He'd like to find
in the appelate ruling, where the general duty not to harm was extended
to a higher standard, the children's exception to this limit on the tort
liability of the property owner, the holding that there was some theory
(contributory or comperable) of negligence on the part of the plaintiff...

I think I understand what he'd like to find, but unless one does a multi-
string search in Westlaw or Lexis, proving the non-existance of such a
cite is, well, one way to spend some time.

Fortunately, there is no need to go so far. One need only understand what
the exception is about -- the general duty of the land owner not to cause
unreasonable harm to trespassers, through acts (including the acts of
prior owners), extended to acts (like piles of lumber or turntables or
swimming pools) which are attractive to persons with limited abilities
to apprehend risk, let alone even form intent to trespass, e.g., kids.

Now suposing that one really ment something when one wrote about the
duty of the parents, something other than a defense to the exception.
Where ought the action lie? Within the original tort for injuries?
Only if somehow this argued "exception" to the exception to the defendant's
liabilities should offset the damages to the injured, which means the
standards the court has to measure are not simply the character of the
object causing the injury, but the fitness of the particular legal
guardians of the child. Down this path lies a finding for Jack, who's
parents "did right", and a finding against Jill, who's parents didn't,
for equivalent Jacks and Jills.

Leaving that briar patch, if the parents are not responsible, then the
action ought not be a private action between the child's guardians and
the property owner, but by someone (usually the state) on behalf of
the child, in a public action unrelated to the private tort claim.
This is what happens now in real life, in California these are the
"child endangerment" (WIC section 300(a) - (z)) actions, which seek
to mitigate the risk to the child due to the inaction of his or her
legal guardians, usually parents.

I hope the idea is not to hard to grasp. The tort action deals with
the responsibility and cost of managing hazards, between two private
parties. The endangerment action deals with the general well-being
of minors (and their equivalents), between the state and the parties.
One is about compensation for injury, the other about mitigation of
risk, usually not in the abstract but based upon actual problems.
They may share a comon "event", but they are otherwise unrelated.

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

Newsgroups: ba.general