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R.I. Supreme Court Holds Seventeen Year Old Cannot Use Attractive Nuisance Doctrine To Sue State For Injury While Trespassing On State Property

The Rhode Island Supreme Court has held that a seventeen year old cannot use the "attractive nuisance" doctrine to sue the State of Rhode Island for personal injuries he suffered-when he was exposed to hazardous materials while trespassing on State property. The youth acknowledge that he knew he was not supposed to be on State property and that what he doing was dangerous.

Plaintiff and some friends trespassed on a closed State facility in search of ghosts. The property was boarded up and marked with "No Trespassing" signs. Plaintiff knew he was not supposed to be on the property. To gain entry, the youths had to climb up a drain pipe to a third floor window. They found glass bottles containing a clear liquid. The labels on the bottles were illegible. Plaintiff poured out some of the liquid and acknowledged that he thought it was a hazardous material. The youth took several of the bottles with them when they departed. On the way out of the building, one of the bottles broke and the liquid splashed on plaintiff. It was sulfuric acid and plaintiff suffered burns. Plaintiff filed suit against the State. After a bench trial, the Superior Court rendered a decision for the State finding that the attractive nuisance doctrine did not apply. Plaintiff appealed.

The Supreme Court noted that generally property owners owe no duty of care to trespassers except to refrain from wanton or willful conduct and only then if they find the trespassers in a position of danger. A trespasser is one who intentionally and without consent enters another's property. Here, plaintiff was clearly a trespasser.

The exception to the general rule arises under the so-called "attractive nuisance" doctrine set forth in Section 339 of Restatement (Second) Torts. The Section establishes a duty of care towards children when: (1) the property owner knows or has reason to know that children are likely to trespass, (2) the there is a condition on the property that may pose an unreasonable risk of harm to the children, (3) the children do not realize the risk because of their youth, (4) the utility to the landowner of maintaining the condition and the burden of eliminating the danger are slight as compared to the risk to the children, and (5) the owner fails to exercise reasonable care to eliminate the danger or otherwise protect the children.

The Court found that it the State knew that children would trespass on the property and that it was unreasonable, even irresponsible, for it to leave bottles of sulfuric acid on the property. However, the plaintiff could not avail himself of the attractive nuisance doctrine. He was aware of the danger of being on the property and thought the liquid was a hazardous material. Dean Prosser has commented in a law review article that a youth who is fully aware of the dangerous condition, who appreciates its dangerousness and is able to avoid it stands in the same position as an adult with similar knowledge and understanding. The Court found that plaintiff was old enough to understand the risks of what he did, particularly considering that he had reason to believe the liquid was a hazardous material. Accordingly, he could not take advantage of the attractive nuisance doctrine. The Supreme Court affirmed.

Burton v. State of Rhode Island, No. 2012-213, slip opinion (R.I. Dec. 20, 2013).

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