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Commentary: Empty field labeled ‘attractive nuisance’

By Pat Murphy

Perhaps property owners should just hand over their wallets. They might as well if they’re going to be liable for injuries suffered by every child trespasser who takes a tumble in an empty field.

On Jan. 21, the Rhode Island Supreme Court opened up the pockets of landowners by reviving the personal injury suit of a boy who was hurt playing football in a grass-covered vacant lot in Pawtucket.

The field is owned by National Grid, a public utility. On the afternoon of Oct. 4, 2006, 12-year-old Austin Hill and his pals chose the site to play a game of touch football.

During play, Austin tripped over a concealed metal pole that protruded from the ground. The boy fell onto a second metal pole hidden in the grass, severely lacerating his thigh. The wound was so serious that Austin needed to be taken to the emergency room, where he was stitched up.

Austin has permanent scars from the accident but, knowing kids, it’s a good bet that he uses his wounds to thrill and amaze his buddies.

Austin’s parents, Harry and Rebecca Hill, aren’t so sanguine about what happened, however. Rather than chalking Austin’s injuries up to the normal bumps and bruises of life, the parents want to hold National Grid liable.

According to the parents’ lawsuit, the vacant lot is an “attractive nuisance.” A favorite of law students everywhere, the attractive nuisance doctrine imposes a duty of care on landowners to trespassing children under certain circumstance.

Normally the doctrine applies to things like open mineshafts, not empty fields. Of course, National Grid’s vacant lot was not “empty” in the strictest sense, because there were those two protruding pipes hidden in the grass.

But c’mon, what piece of ground in the inhabited portions of these United States doesn’t have some sort of defect caused by human activity?

Surely, the Hills’ lawsuit didn’t stand a snowball’s chance in hell, right?

Not so, premises liability breath. Last week, the Rhode Island Supremes reversed a summary judgment granted in favor of National Grid.

The curious thing about the decision is that National Grid may find itself liable by virtue of the fact that it acted as a responsible property owner.

The evidence showed that the company’s lot was in the midst of a residential area. Accordingly, the company adopted a policy for employees to call police when they observed trespassing children.

From this evidence the court concluded that there existed “a genuine factual dispute about whether [National Grid] knew or had reason to know that children were likely to trespass on the lot.”

To top it off, because National Grid sent maintenance crews to regularly cut the grass on the lot, the court said that “a reasonable jury could conclude that defendant knew or had reason to know of the metal stakes protruding from the ground.” (Hill v. National Grid)

Responsible property ownership is turned on its head to support a trespasser’s personal injury claim. Flimsy reeds to impose liability, indeed.

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Pat Murphy writes for Lawyers USA, a national legal publication.

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