legal brief Ochampaugh v. Seattle
Ochampaugh v. Seattle
588 P. 2d 1351 (Wash. 1979)
Facts
Ordinary pond owned by the city
Popular with area residents for fishing and swimming
The two boys were familiar with the pond and had gone there before.
Neither boy could swim.
There were no warning signs around the pond.
The pond, while man-made, was in existence before the city purchased the land.
Issue
Was the pond a “trap” or extraordinarily dangerous enough to render it an “attractive nuisance” to children and thus create a negligent situation on the part of the land owner upon which the pond was placed?
Rules
“It is conceded that the rule in this jurisdiction is that a natural body of water, or an artificial body of water having natural characteristics, is not in and of itself an attractive nuisance.”
No duty to trespassers except not to willfully cause the injury (Mail v. Smith Lumber Co., 287 P. 2d 877 (Wash. 1955)).
However, in the case of infant trespassers, there is the attractive nuisance doctrine:
1. The condition must be dangerous in and of itself;
2. The conditions must be attractive and enticing to young children;
3. The children, because of their youth, must be incapable of understanding the danger involved;
4. The condition must have been left unguarded at a place where children go; or where they could be reasonably expected to go;
5. It must have been reasonably feasible either to prevent access or to render the condition innocuous without destroying its utility.
Analysis
Drowning is a commonly-known danger of which six and eight-year olds are capable of understanding. Furthermore, there were many more instances of recreational use of the pond compared to the number of drownings. Therefore, the pond is not dangerous.
Because it fails to meet the first requirement of the attractive nuisance doctrine, the pond is not an attractive nuisance. Since there is no attractive nuisance, there is no liability on the part of the city.
Conclusion
Lower-court
588 P. 2d 1351 (Wash. 1979)
Facts
Ordinary pond owned by the city
Popular with area residents for fishing and swimming
The two boys were familiar with the pond and had gone there before.
Neither boy could swim.
There were no warning signs around the pond.
The pond, while man-made, was in existence before the city purchased the land.
Issue
Was the pond a “trap” or extraordinarily dangerous enough to render it an “attractive nuisance” to children and thus create a negligent situation on the part of the land owner upon which the pond was placed?
Rules
“It is conceded that the rule in this jurisdiction is that a natural body of water, or an artificial body of water having natural characteristics, is not in and of itself an attractive nuisance.”
No duty to trespassers except not to willfully cause the injury (Mail v. Smith Lumber Co., 287 P. 2d 877 (Wash. 1955)).
However, in the case of infant trespassers, there is the attractive nuisance doctrine:
1. The condition must be dangerous in and of itself;
2. The conditions must be attractive and enticing to young children;
3. The children, because of their youth, must be incapable of understanding the danger involved;
4. The condition must have been left unguarded at a place where children go; or where they could be reasonably expected to go;
5. It must have been reasonably feasible either to prevent access or to render the condition innocuous without destroying its utility.
Analysis
Drowning is a commonly-known danger of which six and eight-year olds are capable of understanding. Furthermore, there were many more instances of recreational use of the pond compared to the number of drownings. Therefore, the pond is not dangerous.
Because it fails to meet the first requirement of the attractive nuisance doctrine, the pond is not an attractive nuisance. Since there is no attractive nuisance, there is no liability on the part of the city.
Conclusion
Lower-court