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Kessler v. Mortenson

Utah Supreme Court
410 Utah Adv. Rep. 3, 16 P.3d 1225, 2000 UT 95 (2000)
ELI5:

Rule of Law:

The attractive nuisance doctrine, as defined by Section 339 of the Restatement (Second) of Torts, applies to injuries sustained by child trespassers on residential construction sites, overriding previous case law that provided a categorical exception for such locations.


Facts:

  • Six-year-old Eric Kessler entered a partially-constructed house to play hide-and-go-seek.
  • The house was owned by Stephen Sheffield and was being built by Randy Mortenson and/or CRM Construction.
  • While playing, Eric backed into and fell through an unprotected opening in the floor where a staircase was to be built.
  • Eric sustained injuries as a result of the fall.

Procedural Posture:

  • Patricia Kessler, on behalf of her son Eric Kessler, sued property owner Stephen Sheffield and builders Randy Mortenson and CRM Construction in a state trial court.
  • The defendants filed motions for summary judgment, arguing they owed no duty to Eric as a trespasser under existing precedent.
  • The trial court granted the defendants' motions for summary judgment and dismissed the plaintiff's claim.
  • The plaintiff, Patricia Kessler, appealed the summary judgment orders to the Utah Supreme Court.

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Issue:

Does the attractive nuisance doctrine apply to injuries sustained by a child trespassing on a residential construction site, thereby creating an exception to the general rule of limited duty owed to trespassers?


Opinions:

Majority - Wilkins, Justice

Yes, the attractive nuisance doctrine may be applied to cases where a trespassing child is injured on a residential construction site. The court overrules its prior precedents, Taylor v. United Homes, Inc. and Featherstone v. Berg, which had established a categorical exception for residential construction sites. The court finds no sound policy reason for this exception, noting that construction sites are temporary hazards in residential areas where children are often present, and the builder is in the best position to recognize and mitigate dangers. The court rejects the older 'allurement' test from Brown v. Salt Lake City and formally adopts Section 339 of the Restatement (Second) of Torts as the controlling standard in Utah. This new standard imposes a reasonable balance between the interests of homebuilders and the safety of children by requiring a case-by-case analysis of whether the doctrine's specific elements are met.



Analysis:

This decision significantly alters Utah's tort law by eliminating a categorical immunity for landowners and builders regarding child trespasser injuries on residential construction sites. By explicitly adopting Section 339 of the Restatement (Second) of Torts, the court modernizes its attractive nuisance doctrine, aligning it with the majority of U.S. jurisdictions. This ruling shifts the legal landscape, requiring builders and property owners to proactively assess and address potential hazards to children, rather than relying on a blanket legal protection. Future litigation in this area will now focus on the fact-intensive, five-part analysis of the Restatement test rather than the location of the injury.

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