SALEM, Ohio – An Ohio court of appeals has ruled a 7-year-old girl trespassed before she was injured in her relatives’ horse pasture, voiding application of the state’s attractive nuisance doctrine.
The trial court and Sixth District Court of Appeals in Williams County, Ohio, both agreed the girl became a trespasser when she entered the horse paddock without supervision or permission.
The courts also agreed the horse was not an artificial condition, so the attractive nuisance doctrine did not apply.
Chain of events. Court documents show Erica Aponte attended Thanksgiving dinner at the home of her aunt and uncle, Michael and Deborah Castor, in 1997. The girl was 7 at the time.
After dinner, the girl and her cousin went outside and crawled under an electric fence that enclosed the family’s horse paddock, the court said.
Inside the paddock, the Castors’ horse kicked the girl in the face. She suffered lip and mouth injuries, according to defense attorney Tom Antonini.
Filed suit. Rafael and Teresa Aponte sued the Castors in 2001 on behalf of their daughter, alleging negligence and seeking damages for the girl’s injuries.
Because the girl is a minor, her family could have waited until she was 18 before the traditional two-year statute of limitations would have been in effect, Antonini said.
Arguments. The Castors argued their niece did not have permission to leave the house or enter the paddock, and no adults knew the girl and her cousin had left their family dinner, court records show.
The Apontes said their daughter was a social guest and was owed protection commensurate with her young age.
Both families agreed the girl was never allowed to “roam freely in any part of the property without both parental supervision and permission.”
The court said the girl was not invited to enter the horse paddock and became a trespasser when she left the house.
She knew better. In her deposition, the girl said she was previously warned to avoid the electric fence around the horse’s paddock.
She also testified she had been told to “never go behind a horse” and knew she was not allowed to be around horses or in the corral without supervision.
Based on the girl’s testimony, the court ruled the girl knew the obvious and inherent dangers associated with the animal.
The Castors “owed no duty to Erica or her parents to provide additional warnings regarding this horse in particular,” the case summary said.
No other references. According to Tom Antonini, the court could find no other Ohio court cases that referred to animals as attractive nuisance to guide its decision.
“This seems to be the first case in Ohio where [attractive nuisance] arguments have extended to animals,” Antonini said.
Caring for children. Antonini also said the Castors met standards of care for the young girl, including having the horse corralled inside electric fence, and having warned the girl of the dangers the animal posed.
“We can’t prevent all injuries. We really viewed [the case] all along as a case of no liability. We were confident we would prevail in the trial and appeal,” Antonini said.
Disappointment. “From the plaintiff’s perspective and based on the facts, of course I’m disappointed with the decision,” said Ron Leonhardt, attorney for the Apontes.
Leonhardt said it was nearly four years from the time of the incident to the girl’s deposition.
“We feel the answers she gave in the deposition were weighted because she was older. I really don’t think they were the answers she would have given when she was 7,” Leonhardt said.
(Reporter Andrea Myers welcomes reader feedback by phone at 1-800-837-3419, ext. 22, or by e-mail at amyers@farmanddairy.com.)
Liability for trespassing children:
Ohio attractive nuisance doctrine
Children often stray onto property without permission, attracted by an enticing condition such as a swimming pool, machinery, or an abandoned building. If a trespassing child suffers harm when drawn to an enticing condition, is the landowner liable?
The “attractive nuisance doctrine” places a duty upon landowners to protect foreseeable child trespassers from dangerous conditions on the owner’s property.
Background
Historically, a property owner owed no duty under Ohio law to protect unknown trespassers, including children, from dangerous conditions on the property.
In recent years, most other states adopted laws that distinguished trespassing children from trespassing adults, placing a higher responsibility upon a landowner for child trespassers.
In 2001, the Ohio Supreme Court decided to adopt the “attractive nuisance doctrine,” a different approach to landowner liability for trespassing children.
Under the new law, a property owner could be liable for injuries to trespassing children.
In creating the new law, the Ohio Supreme Court reasoned additional protection from dangerous conditions is necessary for children because people in Ohio now live more closely together than in the past, exposing children to more dangers.
The attractive nuisance doctrine attempts to protect children from unknown dangers nearby, while continuing to recognize the rights of landowners to use their property within the limits of the law.
What is an attractive nuisance?
The term “attractive nuisance” is a bit of a misnomer, but refers to artificial conditions on the property that are dangerous, yet attractive, to children. Obvious examples of attractive nuisance situations on farm property include:
* swimming pools
* chemicals and chemical storage areas
* grain bins
* manure lagoons
* water wells and cisterns
* heavy equipment
* machinery and tools
* gas and water tanks
Some dangers, such as an open fire, are thought to be so “obvious” that even young children are expected to understand the danger. The attractive nuisance doctrine does not apply to an “obvious” danger, if the child is aware of the danger.
However, it is likely that a court will examine the dangerous condition and the individual child’s ability to comprehend the danger when deciding whether to apply the attractive nuisance doctrine.
Animals as attractive nuisances
Animals tend not to be considered attractive nuisances, particularly common domestic animals such as farm animals and pets.
However, the more dangerous or exotic an animal is, the more responsibility the owner has to protect a trespassing child from the animal.
In cases from other states, courts have stated that a German Shepherd dog, a caged chimpanzee, and a horse may constitute an “attractive nuisance.”
(Source: Ohio State University Extension)
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