Attractive Nuisance 3

Mr. George,

In thinking about whether the imposition of attractive nuisance liability on Merrill was fair, I considered the rules governing the case. The rules applied in the law fact analysis in Merrill contained five elements. Out of the five elements, the Court seemed especially concerned with whether the third element was satisfied. The third element stated:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if: (3) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it. [1]

As we know, in order for a tort cause of action to prevail, all elements of the tort must be satisfied. [2] The Court seemed to focus on the question of whether Merrill discovered or realized the risk involved with climbing over a protective fence which was put in place to keep the public from accessing live electrical wires, in order to access those wires to cook an eel that he had caught while fishing on the property. [3]

I find this element to be quite interesting because the purpose of protecting children from attractive nuisances is the fact that the child cannot appreciate the totality of his engagement with certain (possibly hazardous) conditions present on real property. [4] The Court in Merrill recognized that once a child understands the inherent dangers involved with his engagement of those conditions, that understanding serves to disqualify him from attractive nuisance protections under tort law. [5] The facts in the case did indeed lead the Court to hold that Merrill did in fact have knowledge of the inherent risk of his engagement with the conditions on the property and because of that fact, the Court rendered affirmed the lower Court’s judgement for Central.

[1] Merrill v. Central Maine Power Co., 628 A.2d 1063 (Me. 1993).

[2] Cathy J. Okrent & William R. Buckley, Torts and personal injury law 20 (5th ed. 2015).

[3] Merrill, supra.

[4] Okrent, at 97.

[5] Merrill, at 1064.

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