Louisville Trust Company v. Nutting
1968 Ky. LEXIS 161, 437 S.W.2d 484 (1968)
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Rule of Law:
A possessor of land may be liable for harm to children caused by an artificial hazardous condition on their property if they know or should know children are likely to be present, and the condition poses an unreasonable risk of serious harm that children would not comprehend. Whether an unattended fire constitutes such a hazard and creates liability is generally a question for the jury.
Facts:
- Appellee's workman burned a pile of leaves in the backyard of appellee's residential property.
- The workman left the property without completely extinguishing the fire, leaving only smoldering ashes.
- Appellee also left home that afternoon, leaving the smoldering fire unattended.
- Appellee and the Bollinger family owned adjoining residential properties, which had no fence between them.
- Appellee knew the Bollinger children frequently crossed her yard to and from other homes in the neighborhood and had consented to their using her property in this manner.
- The injured three-year-old child, one of the Bollinger children, wandered into appellee’s backyard with his six-year-old brother and two other boys.
- The child ignited a stick by poking it into the hot ashes of the unattended fire.
- The child's clothing caught fire, causing him severe burns.
Procedural Posture:
- A suit for personal injuries was initiated by the plaintiff (appellant) against the defendant (appellee) in the trial court.
- At the close of the plaintiff’s evidence, the trial court directed a verdict in favor of the appellee.
- The plaintiff (appellant) appealed the trial court's decision.
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Issue:
Does a landowner's maintenance of an artificial hazardous condition, specifically an unattended smoldering fire, constitute an unreasonable risk of serious injury to children who are known to frequent the property, such that the question of liability should be determined by a jury rather than as a matter of law?
Opinions:
Majority - Clay, Commissioner
Yes, the issue of liability should have been submitted to the jury, as a landowner's maintenance of an artificial hazardous condition like an unattended smoldering fire can constitute an unreasonable risk of serious injury to children known to frequent the property. The court reiterated adherence to the rule set forth in Restatement 2d, Torts, section 339, which posits liability for a possessor of land who creates or maintains an artificial condition he realizes or should realize involves an unreasonable risk of serious bodily harm to children who would not comprehend the risk, and he knows or has reason to know such children are likely to be on his premises. The court explicitly stated that the classification of children as trespassers, licensees, or invitees is not a controlling consideration. The majority found that open fires constitute a threat and hold a certain fascination for children, and the determination of legal liability for an unattended fire involves many factors (nature of fire, accessibility to children, seriousness of risk) that are preeminently for a jury's consideration. The court overruled `Goss v. Shawnee Post No. 3204, V. F. W. of U. S., Ky., 265 S.W.2d 799` to the extent it conflicted with this conclusion, acknowledging that the trial judge's error stemmed from the court's own prior 'faulty analysis.' The court also addressed and rejected appellant's claims regarding KRS 227.400(1) imposing additional duty and a State Department of Public Safety regulation, finding the former provided no specific standards beyond common law negligence and the latter exempted private dwellings and their appurtenant yards.
Dissenting - Osborne, Judge
No, the trial court correctly directed a verdict for the appellee because `Goss v. Shawnee Post No. 3204, V. F. W. of U. S., Ky., 265 S.W.2d 799` is sound law and controlling. The dissenting justice argued that the facts in `Goss` were almost identical to the present case, and in `Goss`, the court held that a 'small controlled trash fire on one’s own property' did not constitute an 'attractive nuisance' which would impose liability upon the landowner. He contended that the majority opinion provided no sound reason to overrule `Goss`.
Analysis:
This case represents a significant shift in Kentucky law regarding landowner liability for injuries to children under the attractive nuisance doctrine, moving away from a rigid application to a more flexible standard guided by the Restatement (Second) of Torts § 339. By overruling `Goss v. Shawnee Post No. 3204`, the court clarified that what constitutes an 'attractive nuisance' is not solely defined by 'attractiveness' but rather by the broader concept of an unreasonable risk to children who cannot comprehend the danger. This decision expands the scope of potential landowner liability for artificial conditions, particularly those as inherently captivating and dangerous as fire, and will likely increase the instances where such cases proceed to a jury, rather than being dismissed as a matter of law, thereby placing a greater burden of care on property owners in areas frequented by children.
