Bennett v. Stanley
92 Ohio St.3d 35, 748 N.E.2d 41 (2001)
The Bennetts lived next door to the Stanleys, who owned a
swimming pool. The swimming pool was abandoned but was half full of
rainwater and had frogs and algae growing in it.
There was a gap in the fence between the two properties.
The Stanleys knew that unsupervised children lived next door, and there
were no warning signs or safety features. Nor was there a 'no
The Bennetts' son entered the property and fell in the
pool. Ms. Bennett entered the pool to save the son, but both drowned.
The remaining Bennetts sued the Stanleys for negligence.
Bennett argued that the pool created an unreasonable risk
of harm to children who would not realize the potential danger.
The Trial Court found for Stanley on summary judgment.
The Trial Court found that the Bennetts were trespassers.
The only duty owed to trespassers is the duty to
refrain from willful, wanton, and reckless conduct.
The Appellate Court affirmed. Bennett appealed.
The Ohio Supreme Court reversed and remanded the case for
The Ohio Supreme Court noted that the duty of care owed
to children is different than that owed to adults.
The Court looked to the dangerous instrumentality exception
owed to child trespassers.
The dangerous instrumentality exception basically
says that since children cannot readily foresee danger, there is a duty
to protect them from potentially dangerous items, even when they are
Restatement of Torts §339 says that a landlord can
be liable for physical harm to a child trespasser caused by an
artificial condition if:
The landlord knows about the condition and knows
children are likely to trespass.
The condition could cause an unreasonable risk of harm.
The children do not discover or realize the risk.
The costs to maintaining/eliminating the danger are
slight in comparison to the risk.
The landlord fails to exercise reasonable care to
eliminate the risk and protect the children.
This is also known as the attractive nuisance
This doesn't include dangerous natural conditions (like
a cliff), only dangerous artificial conditions created by the landowner
(like a minefield).
The Court adopted the attractive nuisance
doctrine, and remanded the case to a jury find if the swimming pool
met the definition.
The Court also ruled that the mother who died in an
attempted rescue "assumes the status of the child" and thus was
also owed a duty of reasonable care.
Could the mother also have been considered a rescuer
as opposed to a trespasser and thus be covered under the rescue
This case overturned the older turntable doctrine,
which said that it is not the duty of a landowner to exercise care to make
it safe for children who are trespassing, only those that are invitees.
Apparently a lot of kids in Ohio were getting hurt
playing with 'railroad turntables' and the railroads were able to avoid
Unlike most of the sections of the Restatement of Torts,
§339 actually took what was the minority view at the time.
In a way it charted new law and shaped the direction of the law, as
opposed to just "restating" it.