7/31/2019 Glover v. Oakwood Terrace
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Edward Barnes was sixteen years old when he broke into an
apartment complex pool. The pool
was enclosed by 6-foot fence that was gated and padlocked. He
was an admitted trespasser
because he was not a resident of the complex and was not invited
to swim. Witnesses testified that
unauthorized children frequently swam in the pool. However,
signs around the pool stated
Warning- no lifeguard. Children under 14 should not use pool
without an adult in attendance,
All persons using pool do so at own risk - Owner and management
not responsible for accidents
or injuries, and Pool is for tenants use. Others with
managements permission only. There
was also a No Diving sign. He was a proficient swimmer. After
three hours of swimming,
Barnes dove into the pool and became paralyzed.
The trial court reached the verdict that the pool was a trap and
that the apartment complex was
liable for the Barnes injury. However, the appeals court looked
at the elements of the Attractive
Nuisance Doctrine and determined that a body of water is not an
attractive nuisance unless there
is some unusual danger in it. In addition to the 6-foot fence
and padlocked gate, the court noted
that the pool water was clear, the depth was properly marked,
and it was free of foreign objects.
Thus, it concluded that there was no unusual or unforeseeable
danger present.
Furthermore, the commentary in Section 339 of the Restatement
indicates that there are normally
age parameters to the Attractive Nuisance Doctrine:
The purpose of the Attractive Nuisance Doctrine is to protect
immature children from danger
because their youth hinders them from understanding and
appreciating the risks associated with
swimming in an unsupervised pool. Thus, Barnes age was a stretch
to be considered protected
under the doctrine.
Moreover, the court concluded that a swimming pool in a good
state of repair is not per se an
attractive nuisance. The first element of the doctrine was the
only element that was satisfied in
this case. The apartment management should know the likelihood
of children trespassers since the
facts state that unauthorized children frequently enter and swim
in the pool. The second element of
the doctrine involving unreasonable risk was not present in this
case because there was no unusual
or hidden danger. The third element regarding childrens
inability to comprehend the risk does not
apply because the pool is a common and obvious danger. In
addition, Barnes age was outside of
the parameters that are usually considered in Attractive
Nuisance cases, so his mental capacity
should allow him to understand the risk. The fourth element
requires comparing the burden of
eliminating the danger to the risk of harming children. In this
case, it would be an unreasonable
In the great majority of the cases in which the rule here stated
has been applied,
the plaintiff has been a child of not more than twelve years of
age. As the age of
the child increases, conditions become fewer for which there can
be recovery
under this rule, until at some intermediate point, probably
beyond the age ofsixteen, there are no longer any such
conditions... [Regarding] the realization of
the risk by a child... the doctrine does not extend to those
conditions the existence
of which is obvious, even to children, and the risk of which
should be fullyrealized by them.
