Our clients, the parents of their deceased son Opie Taylor, who was the age of ten years old. Every year the local Cub Scout troop, that Opie Taylor was apart off, would spend Thanksgiving at Floyd Lawson home that included fifteen acres of surrounding land. There is a ditch surrounding the premises which at the time of incident was filled with water that was from the continuous rain of that day. Opie Taylor on this day had slid down the embankment on a flattened cardboard into the water and never resurface.
He was later found deceased from drowning in the ditch. QUESTION PRESENTED Can a landowner be held liable under the “attractive nuisance” doctrine for an accidental death that occurs on the premises? BRIEF ANSWER No, the child or any of the children that were present was not trespassing and the child was of age to understand danger. The landowner did have a duty to care for invited minors and to refrain from willfully and wantonly injuring him which he obliged. The embankment was in plain view and not hidden from invitee. DISCUSSION
While the landowner has the right to make sure that his land is safe from natural and manmade hazards on his land. History has found that as safe as something may be not all things can be made safe and or predicted. In the site of the law not all things are made to be an attractive nuisance, in particular ponds, lakes or pools. In many cases there has be incidents involving pools, lakes, ponds etc. , but the court decisions have stood even when appealed.
The case of McGill v. City of Laurel, 173 So. 2d 892, 904 (Miss. 1965), facts provides that (1) a mother and the sister of Jerry Winfred McGill, the deceased, drowned in a lake or pond located on the property owned by the City of Laurel which they allowed to become dangerous, or allowed to become dangerous, or maintain a highly dangerous and negligent manner. (2) The child was 6 years old at the time of his death. (3) The lake owned by the City of Laurel and had been dug or constructed in such a careless and negligent way that the sides of the bar pit were several feet high above water; the east end of said pit was flat and easily accessible and approachable by children but from the opposite side thereto exit could only be made by scaling perpendicular walls.
In other words, one would be trapped unless he was of mature age or a good swimmer. (4) The other children and the deceased had been playing around the bar pit, using it for a swimming pool, which was known by the defendants. In this case the bar pit was considered an attractive nuisance by the plaintiff when appealed to the Supreme Court of Mississippi, however since water is everywhere it is not considered an attractive nuisance in this case due to the Annotation of 8 A. L. R. 2d 1259 Child’s Drowning-Landowner’s *747 Liability section 2 (1949).
Ponds, lakes, pits or anything else filled with water that can be used to play, swim, and fish in can be attractive to boys. In the case at hand of Opie Taylor and the embankment that was on the property of Floyd Lawson the fact that on that specific day it had been raining all day which caused the embankment to fill with water. This in turn caused it to become an attraction of play for Opie and the other Cub scouts as it has been every year on Thanksgiving as a tradition. Opie Taylor was age ten at the time of death. He was of age to consider of right and wrong and if it was safe or not.
Another child drowned in water, particularly a swimming pool in the case of Ausmer v. Sliman, 336 So. 2d 730, 732 (Miss. 1976). Judgment was rendered on behalf of the defendant, and the plaintiff appealed to the Supreme Court of Mississippi as well. This is because of their (1) long-established rule in this state in that water hazards are not attractive nuisances, and the attractive nuisance doctrine does not extend to swimming pools, although there maybe be exceptions where the hazards are hidden or concealed and are not likely to be found and avoided by a child.
Our case clearly states that before the embankment is filled it is normally dry and any natural hazards are for all to see and on the day of question it was filled with rain water because it had rained all day. Even if questioning if Floyd Lawson would of put a fence around the embankment or filled it, would it had prevented the plaintiff child from wanting to venture into that area or make it more of an attraction to find a way into the attraction. In the case of Goodwin v. Jackson, 484 So. d 1041, 1046 (Miss. 1986), though this was an infant who had died, in a trailer park swimming pool, there was a fence around it to keep unwanted visitors from entering but at the time the gate door was open. The infant who died wondered out of her home and towards the swimming pool. In this case the infant died from drowning and no one was watching him. Though the parents sued in court; the court ruled in favor of the defendant, because even with the safety precautions accidents can still occur.
The fact that the child was an invitee also shows that a standard of care was expected of the landowner which for countless years had obeyed the standard of care when minors are on his premise. The standard of care was given and the area of question was known to all that was invited to the premise. In the case of Handy v. Nejam, 111 So. 3d 610 (Miss. 2013), it gives precise description of the how even if invited the standard of care to the landowner is to make sure that the owner did not conduct any willful and wanton conduct to the minor while they are on the landowner’s grounds.
This case is a direct example of invite and new of the attractive nuisance and of age to know the dangers of the attraction. CONCLUSION Every case cited above is not in favor of our client when it comes to premises liability lawsuit for wrongful death of their child, because their child was of age to know right from wrong and sense when something can be dangerous. The fact that the parents left the impression that Opie Taylor could swim and was excellent health and sound of mind could not suggest that he would have been in any danger.
It does not state that we cannot bring it to court but we can and we can appeal however if pursing this case under attractive nuisance will not apply because any body of water is not considered an attractive nuisance since water is everywhere. Body of water will attract kids to want to play, swim, or even fish in it even if safety precautions are put in place. In order to have any chance to prove that to win then evidence would have to show that the area where Opie death occurred had some type of hazard in itself, that no effort was made to prevent the hazard, and at the time of the incident that no effort was taken to find the child.
In this case there was probably effort was made to find the child and the landowners was not expecting any of this to happen on his land since the land had been a place of tradition initially. If any other question on pursing this case other cases have gotten the same results as the others of favoring the defendant and not of our client. I would recommend that the parents of Opie Taylor do not consider filing premises liability lawsuit for the wrongful death of their child because it would not be in their favor as the cases listed above have detailed even if the minor was an invited.