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Metropolitan Government of Nashville v. Counts

Tennessee Supreme Court
1976 Tenn. LEXIS 535, 541 S.W.2d 133 (1976)
ELI5:

Rule of Law:

The attractive nuisance doctrine is a theory of negligence liability that applies to trespassing children and cannot be used to invoke the nuisance exception to the rule of governmental immunity, as a true nuisance involves interference with property or public rights.


Facts:

  • The Metropolitan Government of Nashville and Davidson County owned and maintained the Bordeaux County Hospital, which had an adjacent pasture.
  • Within the pasture was an ordinary cattle pond used for watering livestock.
  • The pasture was next to a public playground, also maintained by the defendant, and separated by a wire fence that was trampled down in some areas, allowing easy access.
  • On August 9, 1973, ten-year-old Michael Counts and his thirteen-year-old brother, Gary, entered the pasture by stepping over the damaged fence.
  • The boys swam in the pond for about an hour.
  • Michael Counts ventured into the deeper water of the pond and drowned.
  • The pond was described as an ordinary cattle pond with dark, muddy water, gradually increasing depth, and no unusual or hidden dangers.

Procedural Posture:

  • Cleophius and Mary Alice Counts (plaintiffs) filed a lawsuit against the Metropolitan Government of Nashville and Davidson County (defendant) in the trial court.
  • At the end of the plaintiffs' presentation of evidence, the trial court granted a directed verdict for the defendant on the basis of governmental immunity.
  • The plaintiffs appealed the trial court's decision to the Court of Appeals.
  • The Court of Appeals reversed the trial court, holding that a valid claim of attractive nuisance could serve as an exception to governmental immunity, and remanded the case for a trial.
  • The defendant (appellant in the Supreme Court) petitioned the Supreme Court of Tennessee for a writ of certiorari, which the court granted to review the decision of the Court of Appeals.

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Issue:

Does the attractive nuisance doctrine fall under the nuisance exception to the rule of governmental immunity?


Opinions:

Majority - Cooper, Chief Justice

No. The attractive nuisance doctrine is a theory based on negligence and applies only to trespassing children, which distinguishes it from a true nuisance that can overcome governmental immunity. A true nuisance involves a landowner's interference with another's use and enjoyment of their own property (private nuisance) or with the rights of the public (public nuisance). The court first determined that the facts of this case did not meet the requirements for the attractive nuisance doctrine because the pond was an ordinary body of water without any unusual or hidden dangers, and the risk of drowning is a common and obvious danger that a ten-year-old would appreciate. Furthermore, the court clarified that liability under the attractive nuisance doctrine is fundamentally a matter of negligence—a failure to exercise due care toward trespassing children. In contrast, the nuisance exception to governmental immunity requires a higher level of culpability, such as the intentional creation of a known, inherently dangerous condition. Because attractive nuisance is rooted in negligence and applies to trespassers, it cannot be categorized as a true nuisance for the purpose of waiving governmental immunity.



Analysis:

This decision solidifies a critical distinction in tort law between the doctrines of attractive nuisance and true nuisance, particularly in the context of governmental liability. By defining attractive nuisance as a negligence concept applicable only to trespassers, the court prevents it from being used as a means to circumvent sovereign immunity. This raises the bar for plaintiffs suing government entities, requiring them to prove the elements of a traditional public or private nuisance, which typically involves intentional acts or interference with established rights, rather than mere negligence. The ruling thereby narrows the scope of the nuisance exception and reinforces the protection of governmental immunity in Tennessee.

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