Tuesday, November 12, 2013

Continuing Validity of Attractive Nuisance Doctrine Under Pennsylvania Law Confirmed

Confirming that that attractive nuisance doctrine remains viable under Pennsylvania law, the Pennsylvania Superior Court recently entered summary judgment in favor of the Defendant in the case of G.W.E. v. R.E.Z., 2013 Pa. Super. 261, No. 176 MDA 2013 (Pa. Super. Sept. 27, 2013)(Gantman, Allen, and Mundy, J.J.)(Opinion by Allen, J.) (Mundy, J. Dissenting).  

The G.W.E. case involved a premises liability action where children were allegedly injured in their neighbor’s pond.  

The court affirmed the trial court’s entry of summary judgment in favor of the landowners in this negligence action in which the Plaintiffs alleged that the pond constructed by the landowners constituted an attractive nuisance.  The Plaintiffs asserted that the landowner failed to take measures to prevent harm to children.  

After confirming that the record indicated that the children were not regular or even infrequent trespassers on the property of the landowner, the court affirmed the conclusion of the trial court that the landowners did not have knowledge or reason to know of such trespass to satisfy the first element of the attractive nuisance doctrine as set forth under the Restatement (Second) of Torts §339.  

In so ruling, the Pennsylvania Superior Court majority stated that the attractive nuisance doctrine under §339 was “firmly established in our jurisprudence.” 

Under this doctrine, the frequent presence of children over an extended period of time constitutes constructive notice efficient to establish a duty of care on the part of a landowner to trespassing children.  

As noted, the court found that the record in this matter failed to establish any allegation of actual or constructive notice of children trespassing on the property.   As such, summary judgment in favor of the landowner Defendant was affirmed.
Anyone wishing to review the Pennsylvania Superior Court’s Opinion in the case of G.W.E. v. R.E.Z. may click this LINK.

Judge Mundy's dissenting Opinion may be viewed HERE.  Judge Mundy dissented on the basis that, in her view, the Plaintiff's case had met the elements of the attractive nuisance doctrine such that the landowner defendant's motion for summary judgment should have been denied.  In so ruling, Judge Mundy also acknowledged the continuing validity of the attractive nuisance doctrine in Pennsylvania.

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