04 September 2012

Paugh v. City of Seattle

1. Paugh v. City of Seattle
Based upon Ochampaugh v. City of Seattle
588 P.2d 1351 (Wash. 1979)
Supreme Court of Washington

2. Facts:
This case involves the death of two boys (ages 6 and 8, sons of plantiff Paugh), who drowned in a pond approximately ¼ mile from the housing development where they lived. The pond was on land owned by the city (defendant), accessible by a dirt road, and was popular among the locals for fishing and swimming. There were no warning signs or fences to prohibit trespassing. A fence was thought to be prohibitively expensive and would require extensive damage to the surrounding terrain. Paugh had previously taken his sons fishing at the pond, but only in his presence and prohibited them from entering the water. After the drowning, the estimated cost to drain the pond by the city was $25,000.

3. Procedural History:
Paugh sued the city for the deaths of his two sons. The city moved for, and was granted summary judgment by the trial court. Paugh appealed that judgment, and this court affirmed.

4. Issue(s):
Does the pond meet the standards of an attractive nuisance, and therefore qualify as an exception to the general rule that a landowner owes no responsibility to a trespasser except to not intentionally cause an injury? Mail v. Smith Lumber Co., 287 P.2d 877 (Wash. 1955).

5. Rule(s) of Law:
Generally, a landowner is not required by law to protect a trespasser from possible dangers on the property; the landowner is only required not to willfully cause injury to the trespasser. Due to the concern for the safety and welfare of children, an exception to this rule was established known as the attractive nuisance doctrine. This test requires that all five conditions be met for the exception to apply: (1) The situation or condition must be inherently dangerous such that it will or likely will result in injury to children attracted by it; (2) The situation or condition must be attractive and enticing to young children; (3) The children must be incapable of understanding the dangers posed by the situation or condition (as a result of youth, inexperience and immaturity); (4) The situation or condition must exist at a location where children go or are likely to go; and (5) It must have been reasonably practical either to prevent access or to change the circumstances of the situation or condition such that it is no longer dangerous without also destroying its usefulness, Schock v. Ringling, 105 P.2d 838 (Wash. 1940).

6. Holding(s):
Where the pond was used frequented by many people for fishing and swimming, and where the risk of drowning was very low despite such widespread use, the pond is not inherently dangerous and thus does not meet the conditions of an attractive nuisance as an exception to the landowner’s limited liability under the state’s Recreation Land Act.

7. The Court’s Order:
Based upon the finding that the pond was not inherently dangerous, the trial court’s judgment was affirmed.

8. Reasoning:
While ponds are attractive to children, the threat of drowning is something the boys would have been capable of understanding. Evidence suggests that drowning is not common despite widespread recreational use of water; thus this risk is small enough that the court concludes such bodies of water are not inherently dangerous.
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