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Restatement (Second) of Torts 339 (1965)

Restatement of the Law - Torts
Database updated June 2014
Restatement (Second) of Torts
Division 2. Negligence
Chapter 13. Liability for Condition and Use of Land
Topic 1. Liability of Possessors of Land to Persons on the Land
Title B. Liability of Possessors of Land to Trespassers
339 Artificial Conditions Highly Dangerous to Trespassing Children
Comment:
Reporter's Notes
Case Citations - by Jurisdiction
A possessor of land is subject to liability for physical harm to children trespassing
thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or
has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and
which he realizes or should realize will involve an unreasonable risk of death or
serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the
risk involved in intermeddling with it or in coming within the area made dangerous
by it, and
(d) the utility to the possessor of maintaining the condition and the burden of
eliminating the danger are slight as compared with the risk to children involved,
and

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(e) the possessor fails to exercise reasonable care to eliminate the danger or
otherwise to protect the children.

See Reporter's Notes.

Caveat:
The Institute expresses no opinion as to whether the rule stated in this Section may not apply to
natural conditions of the land.

Comment:
a. This Section is concerned only with conditions on the land, and not with activities of the
possessor. As to liability to children for such activities, see 333, 334, and 336. A condition,
however, includes controllable forces already in operation, as in the case of machinery in motion.
(Cf. 338.)
b. The rule stated in this Section is now accepted by the great majority of the American courts. It
is still rejected in seven or eight jurisdictions, in all of which, however, liability to the trespassing
child may be found under various special circumstances. The rule originated in 1873 in Sioux City
& Pacific R. Co. v. Stout, 84 U.S. (17 Wall.) 657, 21 L.Ed. 745 (1873), where a child was injured
while playing with a railroad turntable. From that case, and others like it, the rule acquired the
name of the turntable doctrine. An early Minnesota decision, Keffe v. Milwaukee & St. Paul
R. Co. 21 Minn. 207, 18 Am.Rep 393 (1875), supplied the theory that the child had been allured
or enticed onto the premises by the condition created by the defendant, so that the defendant was
himself responsible for the trespass, and could not set it up against the child. From this theory the
rule also acquired the misnomer of attractive nuisance, by which it is still known in many courts.
Applying this theory, the United States Supreme Court held, in United Zinc & Chemical Co. v.
Britt, 258 U.S. 268, 42 S.Ct. 299, 66 L.Ed. 615, 36 A.L.R. 28, 23 N.C.C.A. 264 (1922), that there
was no liability to the child where he had not been attracted onto the premises by the particular
condition which injured him. At one time this position had considerable acceptance, but it is now
generally rejected. It is now recognized by most of the courts that the basis of the rule is merely the
ordinary negligence basis of a duty of reasonable care not to inflict foreseeable harm on another,
and that the fact that the child is a trespasser is merely one of the facts to be taken into consideration.
The result is a limited obligation to the child, falling short of a duty to prevent all foreseeable harm
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to him, but requiring reasonable care as to those conditions against which he may be expected to
be unable to protect himself.
c. Children. 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. The earliest decisions as to the
turntables all involved children of the age of mischief between six and twelve. The later cases,
however, have included a substantial number in which recovery has been permitted, under the
rule stated, where the child is of high school age, ranging in a few instances as high as sixteen or
seventeen years. The explanation no doubt lies in the fact that in our present hazardous civilization
some types of dangers have become common, which an immature adolescent may reasonably
not appreciate, although an adult may be expected to do so. The rule stated in this Section is not
limited to young children, or to those of tender years, so long as the child is still too young
to appreciate the danger, as stated in Clause (c).
A few courts have attempted to state arbitrary age limits, setting a maximum age of fourteen
for the possible application of the rule. This usually has been taken over from the rule, in these
states, as to the presumed capacity of children over the age of fourteen for contributory negligence,
which has in turn been derived from the rule of the criminal law as to their presumed capacity for
crime. The great majority of the courts have rejected any such fixed age limit, and have held that
there is no definite age beyond which the rule here stated does not apply. As the age of the child
increases, conditions become fewer for which there can be recovery under this rule, until at some
indeterminate point, probably beyond the age of sixteen, there are no longer any such conditions.
d. Conditions upon the land. The rule stated in this Section is limited to structures or other artificial
conditions upon the land. The question of liability for natural conditions is left open in the Caveat,
as to which see Comment p.
It is not necessary that the particular structure or other artificial condition shall have been created
by the possessor, or that he shall have done anything active to maintain it. It is enough that it has
been created by some third person, such as his predecessor in title or an independent contractor,
or by an adjoining landowner, or even by another trespasser, and that he knows or has reason to
know of its existence and realizes or should realize its danger to children, as stated in Clause (b).

Illustration:
Illustration:
1. A constructs on his land a chute for the removal of goods from his warehouse. The
chute is so constructed that it extends onto the adjoining land of B. B, although he does
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not consent to the encroachment, takes no steps to compel removal of the chute. To B's
knowledge the children of the neighborhood habitually come to play on B's premises,
and slide down the chute. B also knows that the chute is unsafe for this purpose, and
dangerous to the children, because of obstruction formed by supports projecting into it.
B does nothing to prevent the risk. C, a boy ten years of age, slides down the chute,
strikes his head on one of the supports, and is injured. B is subject to liability to C.

Comment on Clause (a):

e. Necessity that children's presence be caused by dangerous condition. It is not necessary that
the defendant shall know that the condition upon his land is likely to attract the trespasses of
children, or that the children's trespasses shall be due to the attractiveness of the condition. It is
sufficient to satisfy the conditions stated in Clause (a) that the possessor knows or should know
that children are likely to trespass upon a part of the land upon which there is a condition which is
likely to be dangerous to them, because of their childish propensities to intermeddle or otherwise.
Therefore the possessor is subject to liability to children who after entering the land are attracted
into dangerous intermeddling by such a condition, although they were ignorant of its existence
until after they had entered the land, if he knows or should know that the place is one upon which
children are likely to trespass and that the condition is one with which they are likely to meddle.

Illustrations:
Illustrations:
2. The A Mining Company knows that the young children in the neighborhood are in
the habit of playing around the pit's mouth. One of the employees leaves a cartridge of
blasting powder lying in a shed which children, to the knowledge of the Company, have
used as a playhouse. Children coming to play find the cartridge and use it as a plaything,
causing it to explode and harm B, one of their number. The A Mining Company is subject
to liability to B although the children did not know of the presence of the dynamite
cartridge until they had entered the shed.
3. The A Manufacturing Company maintains a high-tension electric wire from its
powerhouse to its factory. This wire is permitted to become uninsulated and to sag from
the poles so that it comes into close proximity to magnolia trees, which are close to the
highway at a point where there is no fence. B, a young child, climbs the tree to pick

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the blossoms and comes into contact with the wire which, in his eagerness to get the
flowers, he does not observe. The A Company is liable to B.
f. The rule stated in this Section is not limited to cases in which the trespassing child has
intermeddled with anything on the land. It applies although the child has not in any way interfered
with anything on the land, and never discovers the particular condition which injures him.

Illustration:
Illustration:
4. A has on his land a ruined wall, which he knows to be in dangerous condition, and
likely to fall at any time. He also knows that small children are in the habit of trespassing
on the land, playing there, and sitting in the shade at the base of the wall. A does nothing
to protect such children. The wall falls on one of them, who has never touched it, and
injures him. A is subject to liability to the child.
g. Has reason to know. In order for the rule stated in this Section to apply, the possessor of the
land must know or have reason to know that children are likely to trespass on the land. Has reason
to know is defined in 12 to mean that he has information from which a person of reasonable
intelligence, or of the superior intelligence of the actor, would infer that the fact in question exists,
or would govern his conduct upon the assumption that it does exist. It is not enough that the
possessor should know of trespasses (see 12), in the sense that a reasonable man in his position
would investigate to discover the fact. The possessor is under no duty to make any investigation
or inquiry as to whether children are trespassing, or are likely to trespass, until he is notified, or
otherwise receives information, which would lead a reasonable man to that conclusion.

Comment on Clause (b):

h. Has reason to know. The statement made in Comment g applies equally as to the possessor's
knowledge, or reason to know, that the particular condition exists upon his land, and that it is likely
to be dangerous to trespassing children. The possessor is under no duty to inspect or police his
land to discover whether such conditions exist; and he becomes subject to liability only when he
knows or has reason to know that they do exist, and that they are dangerous.
i. When risk such that children can be expected to appreciate it. The duty which the rule stated in
this Section imposes upon the possessor of land is based upon the well-known tendency of children

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to trespass upon the land of others and the necessity of protecting them, even though trespassers,
from their childish lack of attention and judgment. The duty of the possessor, therefore, is only to
exercise reasonable care to keep the part of the land upon which he should recognize the likelihood
of children's trespassing free from those conditions which, though observable by adults, are likely
not to be observed by children, or which contain the risks the full extent of which an adult would
realize but which are beyond the imperfect realization of children. It does not extend to those
conditions the existence of which is obvious even to children and the risk of which should be fully
realized by them. This limitation of the possessor's liability to conditions dangerous to children,
because of their inability to appreciate their surroundings or to realize the risk involved, frees the
possessor of land from the liability to which he would otherwise be subjected by maintaining on
the land the normal, necessary and usual implements which are essential to its normal use, but
which reckless children can use to their harm in a spirit of bravado or to gratify some other childish
desire and with as full a perception of the risks which they are running as though they were adults.

Illustration:
Illustration:
5. At a point where its factory adjoins an open yard upon its own premises the A
Manufacturing Company operates a pulley by which its raw material is raised to the
fourth story of the factory. The yard is, to the knowledge of the company, visited by
children notwithstanding the efforts of the company's servants to drive them out. The
pulley is operated by an engine, and at the end of the cable of the pulley there is a heavy
iron ball and hook. The employee of the Company who is in charge of the engine goes
to his dinner leaving the engine running, thus causing the ball and hook to descend and
ascend. A group of children see this and dare one another to take hold of the ball and
chain and be carried up by the pulley. B, one of the children, finally accepts the dare and
takes hold of the hook which ascends with him. He loses his nerve when he has been
carried up some 20 feet and lets go of the hook and sustains a fall which causes him
serious harm. The A Company is not liable to B.
j. There are many dangers, such a those of fire and water, or of falling from a height, which under
ordinary conditions may reasonably be expected to be fully understood and appreciated by any
child of an age to be allowed at large. To such conditions the rule stated in this Section ordinarily
has no application, in the absence of some other factor creating a special risk that the child will
not avoid the danger, such as the fact that the condition is so hidden as not to be readily visible,
or a distracting influence which makes it likely that the child will not discover or appreciate it.

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Where, however, the possessor knows that children too young to appreciate such dangers are likely
to trespass on his land, he may still be subject to liability to such children under the rule stated.

Illustrations:
Illustrations:
6. A has on his land a small artificial pond in which, to A's knowledge, children of the
neighborhood frequently trespass and swim. A takes no precautions of any kind. B, a boy
ten years old who cannot swim, trespasses on A's land, enters the pond, and is drowned.
A is not liable to B.
7. A has on his land a small artificial pond full of goldfish. A's land adjoins a nursery
in which children from two to five years of age are left by their parents for the day, and
such children are, as A knows, in the habit of trespassing on A's land and going near the
pond. A could easily prevent this by closing and locking his gate. A does not do so. B,
a child three years of age, trespasses, enters the pond to catch goldfish, and is drowned.
A is subject to liability for the death of B.
k. A condition may be peculiarly dangerous to children because of their tendency to intermeddle
with things which are notoriously attractive to them (see Illustration 2), but this is not the only
childish characteristic which may make a condition, which involves no serious risk to an adult,
highly dangerous to children. Children are notoriously inattentive to their surroundings, and this
characteristic may make it unlikely that children will discover a condition which would be obvious
to an adult (see Illustration 3). The lack of experience and judgment normal to young children
may prevent them from realizing that a condition observed by them is dangerous or, although they
realize that it is dangerous, may prevent them from appreciating the full extent of the risk.
l. A condition existing upon the land may be dangerous even to adult trespassers if it is unlikely
to be discovered by the attention to be expected of them or is of such a character that, although
discovered, the risk involved in it is unlikely to be recognized by an adult of ordinary experience
and judgment. The peculiar danger to children involved in such a condition does not lie in the
character of the condition, but in the fact that children are known to be far more prone to trespass
than are adults. This, together with the fact that young children do not appreciate the wrongfulness
and risk involved in trespassing upon the land of another, makes the possessor subject to liability
to them, although he would not be subject to adult trespassers harmed by such a condition unless
the place upon which the condition was maintained was a limited area known to be subject to
constant intrusion, or unless the possessor knew that a trespasser was in dangerous proximity to
it, as to which see 335 and 337.
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Comment on Clause (c):

m. A possessor of land is, under the statement made in Comment e, under a duty to exercise
reasonable care to keep so much of his land as he knows to be subject to the trespasses of young
children, free from artificial conditions which involve an unreasonable risk of death or serious
bodily harm to them. This does not require him to keep his land free from conditions which even
young children are likely to observe and the full extent of the risk involved in which they are likely
to realize. The purpose of the duty is to protect children from dangers which they do not appreciate
and not to protect them against harm resulting from their own immature recklessness in the case of
known and appreciated danger. Therefore, even though the condition is one which the possessor
should realize to be such that young children are unlikely to realize the full extent of the danger
of meddling with it or encountering it, the possessor is not subject to liability to a child who in
fact discovers the condition and appreciates the full risk involved, but none the less chooses to
encounter it out of recklessness or bravado.

Illustration:
Illustration:
8. The A Railroad Company maintains upon its land an unlocked turntable, upon which,
as it knows, children of the neighborhood frequently trespass, and which involves an
unreasonable risk of harm to such children. On two occasions B and C trespass upon
the land, play with the turntable, and each is injured when his foot is caught in it. B is a
boy sixteen years of age, whose maturity and experience make him fully understand and
appreciate the danger. C is a boy nine years of age, who is the son of a railroad engineer,
has been repeatedly warned against the turntable, and likewise fully appreciates the
danger. A Railroad is not liable to B or to C.

Comment on Clause (d):

n. Balancing risk to children with utility of dangerous condition. In determining whether a
particular condition maintained by a possessor upon land which he knows to be subject to the
trespasses of children involves an unreasonable risk to them, the comparison of the recognizable
risk to the children, with the utility to the possessor of maintaining the condition, is of peculiar
importance. The public interest in the possessor's free use of his land for his own purposes is of
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great significance. A particular condition is, therefore, regarded as not involving unreasonable risk
to trespassing children unless it involves a grave risk to them which could be obviated without
any serious interference with the possessor's legitimate use of his land. Farming machinery and
the like involve inevitable danger to children meddling with them. Nevertheless their essential
importance to agriculture permits them to be used and maintained if kept in a proper place and
in proper condition. On the other hand, if the installation of devices which would prevent the
machine's being set in motion were practicable without burdensome cost or serious interference
with the utility of the machine, it might be unreasonable for a farmer to keep a machine without
such equipment in a place notoriously open to trespassing children. While wires are necessary to
carry high-tension electric current, the burden of properly safeguarding wires maintained at places
where trespassing children may be expected to come into contact with them is obviously slight as
compared with the gravity of harm which they threaten and the chance that such harm will result.

Illustrations:
Illustrations:
9. The A Railway Company maintains a turntable at a point upon its unfenced land close
to a highway upon which young children constantly pass on their way to and from school.
These children, to the knowledge of the Company, are in the habit of playing about and
upon the turntable. A simple locking device would make it very difficult for children
to set the turntable in motion, but this device is not installed upon the turntable. While
the children are playing about the turntable several of them set it in motion, causing B,
one of them, to be caught in the table and seriously hurt. The A Railway Company is
subject to liability to B.
10. Under the circumstances stated in Illustration 9, the A Railroad Company would
not be liable to B, injured while playing upon its turntable, if a locking device capable
of preventing children from setting the turntable in motion would have prevented its
effective operation and if to surround it with a reasonably child-proof fence would have
seriously interfered with the operation of the railroad.

Comment on Clause (e):

o. The liability covered by this Section is liability for negligence. The possessor of the land is
subject to liability to the trespassing child only if he has failed to conform to the standard of conduct
of a reasonable man under like circumstances, as stated in 283. Even though the possessor knows

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that children are likely to trespass, that the condition on the land involves an unreasonable risk of
harm to them, and that they are likely not to discover or appreciate the risk, there is liability only if
the possessor fails to take the steps which a reasonable man would take under such circumstances.
If the possessor has exercised all reasonable care to make the condition safe, or otherwise to protect
the children, and has still not succeeded, there is no liability.
Under some circumstances, a warning to the children is all that can be expected of a reasonable man
in the defendant's position. There are some conditions, such as those of moving cars in a railroad
yard, as to which no really effective precautions can be taken to make the condition itself safe,
and the most that can be done as a practical matter is to warn trespassing children, and so far as is
reasonably possible to exclude them. If the children are of sufficient age to understand a warning,
it may often reasonably be expected that they will heed it, and will avoid the danger. Where,
however, the child is too young to be expected to understand or heed the warning, something more
may be required.

Comment on Caveat:
p. The Caveat leaves open the question whether the rule stated in this Section may not apply to
natural conditions of the land. The case law thus far indicates that it does not so apply; but in all
of the decided cases the condition has been one, such as a body of water, which the child might
be expected to understand and appreciate, as stated in Comment j. In most instances the burden
of improving land in a state of nature in order to make it safe for trespassing children would be
disproportionately heavy (see Clause (d)), and for that reason alone there would be no liability.
Cases may, however, arise in which there would be no such disproportionate burden, and the
natural condition is one which the child could be expected not to understand. The Caveat leaves
open the possibility of liability in such a case.

Reporter's Notes
This Section has been changed from the first Restatement in the following respects:
1. By eliminating the limitation to young children. There seems now to be general agreement
that the age of the child is important only as it bears on whether he does, and can be expected to,
realize the risk. There are now a considerable number of decisions in which the rule stated has
been applied to children over the age of 13 years:

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