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Tuders v. Kell6/25/1999
e the following five elements: (1) that the landowner knew that children were likely to trespass in the place where the condition existed; (2) that the landowner knew or had reason to know that the condition was one that involved an unreasonable risk of death or serious injury to children; (3) that the children did not discover the condition or realize the risk involved, because of their youth; (4) that the utility of maintaining the condition and the burden of eliminating the danger were slight as compared with the risk to children; and (5) that the landowner failed to exercise reasonable care to eliminate the danger or to protect the children. Kell argues that he did not owe any heightened duty to the minor children, because each of them was accompanied by a parent and by other adults.
Under ordinary conditions, trespassing children occupy the same status as trespassing adults. Copeland v. Pike Liberal Arts School, 553 So. 2d at 102. A limited exception to this rule exists under certain circumstances when the child is injured by an "attractive nuisance" or an "artificial condition" on the property. See Hollis v. Norfolk Southern Ry., 667 So. 2d 727 (Ala. 1995); Motes v. Matthews, 497 So. 2d at 1123. In each of these cases, the trespassing children either were alone or were accompanied only by other children. The Court's research has not revealed any cases in which a landowner was held liable for injuries to a trespassing child who was accompanied by an adult. In one case dealing with a child who was accompanied by a parent, Williamson v. Tyson Foods, Inc., 626 So. 2d 1261 (Ala. 1993), this Court held that a landowner could not be held liable for injuries to a minor child who was brought onto the premises by his father, because it was unforeseeable, as a matter of law, that the father would allow his child to be placed in, and to remain in, a position of danger. Although the situation in the instant case is different in some respects, we do not believe the principles of law applicable to unaccompanied children should be applied to children accompanied by responsible adults.
VII.
The Court has struggled with the difficult facts presented by this case. Certainly the events of July 4, 1995, were tragic for all concerned. Our function, however, is to apply the applicable law to the facts, even when those facts are difficult. Although we have concluded that the recreational-use statute did not apply to Kell and that it is unnecessary to decide whether the boaters were trespassers or were licensees, the trial court nevertheless correctly entered the summary judgment in favor of Kell. This Court will affirm a summary judgment properly entered, notwithstanding that it was entered on a rationale different from that on which we find it proper. McAlpin v. City of Decatur, 628 So. 2d 611 (Ala. 1993).
AFFIRMED.
Hooper, C.J., and Maddox, Houston, Cook, See, Brown,* and Johnstone,* JJ., concur.
*Although Justice Brown and Justice Johnstone were not members of this Court when this case was orally argued, they have listened to the tape of oral argument.
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