Bennett v. Stanley

92 Ohio St.3d 35

748 NE 2d 41

BENNETT, ADMR., APPELLANT, v. STANLEY ET AL., APPELLEES.

No. 00-108.

Supreme Court of Ohio.

Submitted October 18, 2000.

Decided June 13, 2001.

McCauley, Webster & Emrick and James H. McCauley, for appellants.

Theisen, Brock, Frye, Erb & Leeper Co., L.P.A., John E. Erb and Abe Sellers, for appellees.

A. William Zavarello Co., L.P.A., Rhonda Gail Davis and A. William Zavarello, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.

PFEIFER, J.

In this case we are called upon to determine what level of duty a property owner owes to a child trespasser. We resolve the question by adopting the attractive nuisance doctrine set forth in Restatement of the Law 2d, Torts (1965), Section 339. We also hold that an adult who attempts to rescue a child from an attractive nuisance assumes the status of the child, and is owed a duty of ordinary care by the property owner.

Factual and Procedural Background

When Rickey G. Bennett, plaintiff-appellant, arrived home in the late afternoon of March 20, 1997, he found his two young daughters crying. The three-year-old, Kyleigh, told him that "Mommy" and Chance, her five-year-old half-brother, were "drowning in the water." Bennett ran next door to his neighbors' house to find mother and son unconscious in the swimming pool. Both died.

The Bennetts had moved next door to defendants-appellees, Jeffrey and Stacey Stanley, in the fall of 1996. The Stanleys had purchased their home the previous June. At the time of their purchase, the Stanleys' property included a swimming pool that had gone unused for three years. At that time, the pool was enclosed with fencing and a brick wall. After moving in, the Stanleys drained the pool once but thereafter they allowed rainwater to accumulate in the pool to a depth of over six feet. They removed a tarp that had been on the pool and also removed the fencing that had been around two sides of the pool. The pool became pondlike: it contained tadpoles and frogs, and Mr. Stanley had seen a snake swimming on the surface. The pool contained no ladders, and its sides were slimy with algae.

Rickey and Cher Bennett were married in 1995. They had two daughters, born in 1993 and 1995. Cher brought her son, Chance Lattea, into the marriage. The Bennetts rented the house next to the Stanleys. The houses were about one hundred feet apart. There was some fencing with an eight-foot gap between the two properties.

The Stanleys were aware that the Bennetts had moved next door and that they had young children. They had seen the children outside unsupervised. Stacey Stanley had once called Chance onto her property to retrieve a dog. The Stanleys testified, however, that they never had any concern about the children getting into the pool. They did not post any warning or "no trespassing" signs on their property.

Rickey Bennett testified that he had told his children to stay away from the pool on the Stanleys' property. He also stated that he had never seen the children playing near the pool.

Kyleigh told her father that she and Chance had been playing at the pool on the afternoon of the tragedy. The sheriff's department concluded that Chance had gone to the pool to look at the frogs and somehow fell into the pool. His mother apparently drowned trying to save him.

Bennett, in his capacity as Administrator of the Estate of Cher D. Bennett, as Administrator of the Estate of Chance C. Lattea, and as custodial parent of Kyleigh D. Bennett, filed a wrongful death and personal injury suit against the Stanleys. The complaint alleged that appellees had negligently maintained an abandoned swimming pool on their property and that appellees' negligence proximately caused the March 20, 1997 drowning of Chance and Cher. Appellant averred that appellees had created a dangerous condition by negligently maintaining the pool and that appellees reasonably should have known that the pool posed an unreasonable risk of serious harm to others. Appellant specifically alleged that appellees' pool created an unreasonable risk of harm to children who, because of their youth, would not realize the potential danger. Appellant further asserted that appellees' conduct in maintaining the pool constituted willful and wanton misconduct such as to justify an award of punitive damages.

Appellant sought damages for the beneficiaries of the deceased, for Kyleigh's mental anguish for witnessing the drownings, for mental anguish for Cher before her death, and for punitive damages. Appellees denied any negligence and asserted affirmative defenses of contributory negligence and assumption of the risk.

Appellees filed a motion for summary judgment, which the trial court granted on September 4, 1998. The trial court found that Chance and Cher were trespassers on appellees' property and that appellees therefore owed them only a duty to refrain from wanton and willful misconduct. The trial court further rejected appellant's argument that appellees' maintenance of the swimming pool amounted to a dangerous active operation that would create for them a duty of ordinary care pursuant to Coy v. Columbus, Delaware & Marion Elec. Co. (1932), 125 Ohio St. 283, 181 N.E. 131. As the complaint alleged that appellees had violated a duty of ordinary care, the court found for the Stanleys as a matter of law.

On appeal, the appellate court affirmed the trial court's granting of summary judgment. It, too, held that appellees owed the decedents only a duty to refrain from wanton and willful misconduct, and added that there was no evidence of such misconduct. The appellate court also addressed the issue of appellees' duty to Cher Bennett. The court held that even if she were on the Stanleys' property in an attempt to rescue Chance, she would still have the status only of a licensee, who is owed no greater duty of care than a trespasser.

The cause is now before this court upon the allowance of a discretionary appeal.

Law and Analysis

Ohio has long recognized a range of duties for property owners vis-a-vis persons entering their property. A recent discussion of Ohio's classification system can be found in Gladon v. Greater Cleveland Regional Transit Auth. (1996), 75 Ohio St.3d 312, 315, 662 N.E.2d 287, 291. Currently, to an invitee the landowner owes a duty "to exercise ordinary care and to protect the invitee by maintaining the premises in a safe condition." Light v. Ohio Univ. (1986), 28 Ohio St.3d 66, 68, 28 OBR 165, 167, 502 N.E.2d 611, 613. To licensees and trespassers, on the other hand, "a landowner owes no duty * * * except to refrain from willful, wanton or reckless conduct which is likely to injure [the licensee or trespasser]." Gladon, 75 Ohio St.3d at 317,662 N.E.2d at 293. Today, we face the issue of whether child trespassers should become another class of users who are owed a different duty of care.

This court has consistently held that children have a special status in tort law and that duties of care owed to children are different from duties owed to adults:

"[T]he amount of care required to discharge a duty owed to a child of tender years is necessarily greater than that required to discharge a duty owed to an adult under the same circumstances. This is the approach long followed by this court and we see no reason to abandon it. `Children of tender years, and youthful persons generally, are entitled to a degree of care proportioned to their inability to foresee and avoid the perils that they may encounter. * * * The same discernment and foresight in discovering defects and dangers cannot be reasonably expected of them, that older and experienced persons habitually employ; and therefore the greater precaution should be taken, where children are exposed to them.'" Di Gildo v. Caponi (1969), 18 Ohio St.2d 125, 127, 47 O.O.2d 282, 283, 247 N.E.2d 732, 734, quoting Ohio Jurisprudence 2d (1959), Negligence, Section 21, at 512.

Recognizing the special status of children in the law, this court has even accorded special protection to child trespassers by adopting the "dangerous instrumentality" doctrine:

"The dangerous instrumentality exception [to nonliability to trespassers] imposes upon the owner or occupier of a premises a higher duty of care to a child trespasser when such owner or occupier actively and negligently operates hazardous machinery or other apparatus, the dangerousness of which is not readily apparent to children." McKinney v. Hartz & Restle Realtors, Inc. (1987), 31 Ohio St.3d 244, 247, 31 OBR 449, 452, 510 N.E.2d 386, 390.

That doctrine was developed in Coy v. Columbus, Delaware & Marion Elec. Co. (1932), 125 Ohio St. 283, 181 N.E. 131, a case where a six-year-old boy was injured when he touched a high voltage transformer owned by the defendant and located in a vacant lot known to be frequented by children. The court applied a negligence standard to the behavior of the company, despite the fact that the child had been trespassing. This court quoted with favor the court in Haywood v. S. Hill Mfg. Co. (1925), 142 Va. 761, 765-766, 128 S.E. 362, 363-364:

"`Certainly a deadly, hidden force, as in this case, should not be left easily accessible to children whose frequent presence in this vicinity was known to the defendant, and acquiesced in by it, and this without so much as a danger sign anywhere thereabout. * * * The care must be commensurate with the danger.'"

Thus, the court adopted as early as 1932 some of the hallmarks of the attractive nuisance doctrine. Elements such as knowledge of children's presence, the maintenance of a potentially dangerous force, and an exercise of care by the owner commensurate with the danger are a part of the attractive nuisance doctrine in most states, as reflected in Section 339 of the Restatement of Torts.

Despite the fact that in premises liability cases a landowner's duty is defined by the status of the plaintiff, and that children, even child trespassers, are accorded special protection in Ohio...