Banker v. McLaughlin
208 S.W.2d 843 (1948)
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Rule of Law:
A landowner is liable for physical harm to trespassing children caused by an artificial condition if they know children are likely to trespass, the condition poses an unreasonable risk of which children will not realize, and the utility of maintaining the condition is slight compared to the risk.
Facts:
- H. F. Banker owned and was developing a 60-acre home-site subdivision, Forest Park, actively marketing lots and inviting the public onto the premises.
- As part of the development, Banker's agents excavated a large pit to obtain dirt for street grading, which subsequently filled with water.
- The water pit, located in an accessible part of the wooded subdivision, had steep banks and was deep enough to be over the head of a small child.
- Banker left the water pit unfenced, unguarded, and without any warning signs or protective devices.
- Approximately 50 families, 46 of which had small children, lived in the subdivision, and Banker knew or should have known that children frequented and played in the area.
- The pit had negligible utility to Banker after the excavation was complete, and he testified that it could have been drained with minimal effort and expense.
- James McLaughlin, Jr., a five-year-and-ten-month-old boy, lived with his family in the subdivision.
- On June 19, 1945, James McLaughlin, Jr. went to the water pit and drowned.
Procedural Posture:
- James McLaughlin sued H. F. Banker in a Texas trial court to recover damages for the death of his minor son.
- A jury returned a verdict in favor of McLaughlin for $15,200.00, and the trial court entered judgment on the verdict.
- Banker, as appellant, appealed to the Texas Court of Civil Appeals, an intermediate appellate court.
- The Court of Civil Appeals found the award excessive and required a remittitur, which McLaughlin, as appellee, filed, reducing the judgment to $6,000.00. The court then affirmed the modified judgment.
- Banker, as petitioner, filed an application for a writ of error to the Supreme Court of Texas, the state's highest court.
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Issue:
Does a landowner have a legal duty to protect a trespassing child from an artificial water pit on their property when the owner knows children are likely to be in the area, the condition poses an unreasonable risk of harm, and the burden of eliminating the danger is slight?
Opinions:
Majority - Mr. Justice Taylor
Yes. A landowner has a legal duty to protect a trespassing child from a dangerous artificial condition on their property under a theory of negligence when the risk of harm is foreseeable and the burden of preventing it is slight. The court's decision is not based on the traditional 'attractive nuisance' doctrine, which requires the dangerous object to lure the child onto the premises, but rather on general principles of negligence. The court adopts a test similar to the Restatement of Torts, § 339, focusing on four factors: (a) the landowner knew or should have known children were likely to frequent the place; (b) the condition involved an unreasonable risk of death or serious harm to children; (c) the child, due to their age, did not realize the risk; and (d) the utility to the owner of maintaining the dangerous condition was slight compared to the probability of injury. Here, Banker created a dangerous, artificial condition of little use to him in a residential area where children's presence was foreseeable, and he could have eliminated the danger at a trivial cost.
Dissenting - Mr. Justice Folley
No. A landowner does not have a legal duty to protect a trespassing child from an open and obvious danger like a pool of water. This holding contradicts established Texas precedent, particularly Dobbins v. M., K. & T. Ry. Co., which established that landowners owe no duty to trespassers for injuries from such conditions. The dissent argues that the water pit was not an 'unusual' danger, as the entire area was swampy and filled with similar bodies of water. Furthermore, the pit was in a secluded, undeveloped portion of the property, not visible from any public way; therefore, the child was already a trespasser before he could have been 'attracted' by the pool. The majority is engaging in judicial legislation by creating a new duty, and the responsibility for protecting children from such obvious dangers should lie with their parents, not the property owner.
Analysis:
This decision marks a significant evolution in Texas tort law, moving landowner liability for injuries to trespassing children away from the rigid 'attractive nuisance' or 'turntable' doctrines and toward a more flexible modern negligence standard. By emphasizing foreseeability and a risk-utility balancing test, the court aligned Texas with the approach of the Restatement of Torts. The ruling establishes that a child's status as a trespasser is not a complete bar to recovery when a landowner creates a dangerous artificial condition that could be made safe with minimal effort. This precedent broadens the duty of care owed by landowners in residential or developing areas where the presence of children is reasonably anticipated.
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