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O'Guin v. Bingham County6/18/2003
ing on the Restatement of Torts, found that the requirement that a child be "attracted onto the premises by such structure/condition," was satisfied if the: children who after entering the land are attracted into dangerous intermeddling by such a condition maintained by him 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.
Id. (citing Restatement of Torts ' 339, cmt. (a) (1938)).
The Restatement's approach to enticement need not change the basic elements one must prove to prevail on a claim for attractive nuisance. Instead, it applies the ordinary standard of care to owners of premises that maintain structures or conditions attractive to, and dangerous for, children, but not visible from the boundary of the parcel. Such a landowner should be required to show "reasonable care not to inflict foreseeable harm... " on the foreseeable trespassing child. Restatement (Second) of Torts ' 339 cmt. (b) (1965). Applying the doctrine of attractive nuisance in this fashion would acknowledge that the basic premise of tort liability is the principal that individuals should use reasonable care to avoid foreseeable harm, not attraction onto premises. If it is foreseeable that a child will trespass on premises, and it is foreseeable that such a child will be attracted to a dangerous structure or condition "just as certainly as a fish is attracted to and mechanically follows a bait," then a landowner should be required to show reasonable care to prevent injury to the child. Such reasonable care may be shown by preventing the initial trespass or by making safe the dangerous condition. Bicandi, 55 Idaho at 556, 44 P.2d at 1108 (Holden, J., concurring specially).
This Court has repeatedly rejected the call to apply the concept of foreseeability in the attractive nuisance setting. See Hughes ex rel Hughes v. Union Pac. R. Co., 114 Idaho 466, 468-69, 757 P.2d 1185, 1187-88 (1988); Bicandi, 55 Idaho at 551-52, 44 P.2d at 1106; see also Ambrose ex rel Ambrose v. Buhl Joint Sch. Dist No. 412, 126 Idaho 581, 585, 887 P.2d 1088, 1092 (Ct. App. 1994). I, however, see no reason to continue placing attraction or enticement as a bar to recovery for foreseeable injury which would have been prevented through the use of reasonable care.
Based on the record in this case, I would find that genuine issues of material fact exist regarding whether the county knew that children were likely to trespass upon the old landfill and whether the structure or condition in the new landfill was one with which children were likely to meddle. Thus, I would vacate summary judgment on the attractive nuisance claim and remand this case for further proceedings.
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