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O'Guin v. Bingham County6/18/2003
. The controlled access into the landfill was via a gate that was open during operating hours, but otherwise locked. Frank, Jr., testified in his deposition that there was a fence along Ridge Street, as well as no trespassing signs that he was aware of, seeking to prohibit entry onto the County property. Frank, Jr., testified that he and his brothers had entered the landfill property, which provided a shortcut to school. The record discloses nothing from which the court could conclude the boys had permission or in any way were authorized to enter onto the County property.
The appellants argue that that the opening in the fence on Ridge Street at the canal was an open and obvious access point, which was not restricted. This argument, however, which suggests an "implied invitation" to enter into the property, does not alter the boys' status as trespassers but may be relevant to the landowners' duty to the children. See United Zinc & Chemical Co. v. Britt, 258 U.S. 268 (1922) (an invitation to children may be implied from knowingly exposing something which attracts them on the land, but the principle, if accepted, must be very cautiously applied). Therefore, the facts before the district court support the court's conclusion that the boys were trespassing at the time of the accident.
2. The district court properly dismissed the plaintiffs' attractive nuisance claim.
The attractive nuisance doctrine under Idaho law applies only to children who were attracted onto the defendant's premises by a dangerous object or condition. Ambrose v. Buhl Joint School Distr., 126 Idaho 581, 585, 887 P.2d 1088, 1092 (Ct. App. 1994). A plaintiff asserting attractive nuisance must prove:
(1) a structure/condition on the defendant's premises which the defendant knew or should have known in the exercise of due care, involved a reasonable risk of attraction and harm to children; (2) the structure or condition maintained or permitted on the property was peculiarly or unusually attractive to children; (3) the structure/condition was such that the danger was not apparent to immature minds; and (4) the plaintiff was attracted onto the premises by such structure/condition.
Bass v. Quinn-Robbins Co., 70 Idaho 308, 216 P.2d 944 (1950). If any one of these elements is not established, a claim of attractive nuisance fails. Nelson By and Through Nelson v. City of Rupert, 128 Idaho 199, 911 P.2d 1111 (1996).
The evidence in the record indicates that the boys first entered the County property as a shortcut to the school. Once on the premises, the boys were attracted into the area of the landfill pit, specifically the slopes of the pit, when they saw other boys throwing rocks to undermine the slopes and dislodge gravel and dirt. The O'Guin boys descended into the pit to get into the shade provided by the slope and started to dig into the slope, which collapsed on them. The district court determined that the plaintiffs had not established that the boys were attracted onto the landfill property by the open pit or the piles of debris. The district court was not persuaded to distinguish the boys' entry into the two, arguably distinct sections of the County property. We agree with the district court's conclusion that the dangerous condition that caused harm to the boys was only discovered after they had entered the property. Accordingly, we affirm the dismissal of the attractive nuisance claim.
3. The plaintiffs failed to plead or establish that the conduct of the County was willful and wanton.
The distinction between trespassers, licensees, and invitees is the controlling test in determining the scope and extent of the duty of care owed by landowners to
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