Whether based on the facts presented above, Plaintiff has a workable claim on behalf of her minor son on the possible action of attractive nuisance. (Not addressed in this memorandum argon issues of negligence, comparative degree negligence, contributory negligence or damages.)
No. The facts presented above do not meet the criteria for the attractive nuisance doctrine. The condition upon the set forth was not of the kind intended by the doctrine and did not constitute an unreasonable, latent risk of bodily injury. Further, the risk of move after climbing onto a step stool and subsequently leaping off it is one children of normal capacity should realize. Finally, an allegement of Defendant's not exercising reasonable care to protect children is fragile at best.
Generally, the owner or occupier of land owes no duty to intruders except not to injure a trespasser willfully, wantonly or through gross negligence. Lampasas v. Spring Center, Inc., 988 S.W. 2d 428, 434 (Tex. App. 1999), Texas Utilities Electric Co. v. Timmons, 947 S.W. 2d 191, 193 (Tex. 1997), citing Burton Constr. & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W. 2d 598, 603 (Tex. 1954).
An exception to this world(a) rule is the doctrine of "attractive nuisance.
" The Texas Supreme Court select the American Law Institute's first Restatement of Torts' test fo
the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
The more evidential issue concerns the step stool. The Texas Supreme Court in Texas Utilities, quoting Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d at 847-848, stated,
the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
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