Public Information Office - Opinions and Case Summaries

Headlines 2005 | 2004 | 2003 | 2002 | 2001 | 2000 | Search | Upcoming cases | Public Information Home

Supreme Court adopts attractive nuisance doctrine
Relative of drowning victims to have day in court

00-108. Bennett v. Stanley.
Washington App. No. 98CA36. Judgment reversed and cause remanded.
Douglas, Resnick, F.E. Sweeney and Pfeifer, JJ., concur.
Moyer, C.J., concurs in part and dissents in part.
Cook and Lundberg Stratton, JJ., dissent.
Opinion: http://www.sconet.state.oh.us/rod/newpdf/0/2001/2001-ohio-128.pdf

The Supreme Court voted 6-1 to order a hearing in the lawsuit filed by a Washington County man for the drowning deaths of his wife and her son in an abandoned swimming pool on his neighbors’ property.

The accident occurred when 5-year-old Chance Lattea wandered onto the property of Jeffrey and Stacy Stanley. Police concluded that the boy had gone to look at frogs that were living in six feet of rainwater that had accumulated in the Stanleys’ pool. He fell in, and his 24-year-old mother, Cher Bennett, jumped in to save him. Both drowned.

Rickey Bennett filed a personal injury and wrongful death suit against Stanleys. He claimed they had been negligent in their maintenance of the pool; there was no fence, cover or ladders and the walls were covered in algae.

The common pleas court granted summary judgment to the Stanleys, who had argued they were not responsible for injuries to trespassers on their land. The 4^th District Court of Appeals affirmed.

But the Supreme Court, adopting the legal doctrine of "attractive nuisance," found that if Bennett could show the Stanleys knew the pool was dangerous and that it attracted children onto their land, putting them at risk, then Bennett could prove their negligence.

The court’s opinion by Justice Paul E. Pfeifer directs the Washington County Common Pleas Court to proceed with a hearing on the case and apply the attractive nuisance doctrine.

Pfeifer noted that children have long enjoyed special protection in Ohio tort law, and called the court’s adoption of the doctrine "merely an incremental change" and "an appropriate evolution."

"Protecting children in a changing world requires the common law to adapt. Today we make that change."

The opinion stresses that the doctrine does not apply unless possible injuries to children are foreseeable. "The landowner must know or have reason to know that children are likely to trespass upon the part of the property that contains the dangerous condition," Pfeifer wrote.

Chief Justice Thomas J. Moyer concurred in part and dissented in part. He disagreed with the majority’s holding that applies the doctrine to adults attempting to rescue children from a danger created by another’s negligence.

Justice Deborah Cook, in a dissenting opinion, said the case was not an appropriate vehicle for establishing such a "groundbreaking rule."

"If this court is to effect a significant change in Ohio law..., it should do so in a case in which the issue is properly before the court. In this case, the record reflects [Bennett] waived any right to pursue the attractive nuisance doctrine as a theory of recovery," she wrote.

Contacts
James H. McCauley, 740.423.9548, for Rickey Bennett.

Abe Sellers and John E. Err, 740.373.5455, for Jeffrey and Stacey Stanley.