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Weisenburg v. Townsend8/28/2000
many declarations showing that the condition drew children to it for play and socializing. Many of these declarations repeat the same facts, such as children loitering near or on the fence as well as taking shortcuts and chasing balls in the parking lot. The declaration of Matthew Whyde specifically asserts that he and David Jr. would regularly go to the parking lot and swing on the tree branch three or four times a week. It appears that Weisenberg has raised a genuine issue of material fact as to element two.
C. The Third Element
In the third element, the child must be incapable, by reason of his age, of comprehending the danger involved. McDermott, 2 Wn. App. at 651. In his brief, Weisenberg cites his expert's testimony to establish that David Jr. could not appreciate the danger created by the tree, fence, and parking block. Michael Bienn, appellant's expert, declares:
Based on my experience as a human factors expert, I believe that an eight-year old could contemplate a certain danger of being hurt from falling off a short fence. It is my opinion, however, that an eight-year old boy could not contemplate a fatal head injury and his own death as a result of falling from such a fence. Clerk's Papers (CP) at 115.
Upon cross-examination, when asked whether an eight-year old boy could contemplate a head injury in the way David Jr. fell, Bienn stated, 'He can.' CP at 497. Presumably, the deposition question referred to a non-fatal head injury. Whether David Jr. knew or had reason to know the full extent of the risk posed by the condition, i.e., fatal injury, is a question of fact. Tincani, 124 Wn.2d at 135. We find there is a genuine issue of material fact over the third element.
D. The Fourth Element
To establish the fourth element that the condition was left unguarded at a place where children of tender years are accustomed or expected to resort Weisenberg submitted many declarations showing that children often loitered or played in the parking lot. The declarations demonstrate a genuine issue of material fact as to whether the children often resorted to the parking lot around the tree and fence for play and amusement.
E. The Fifth Element
Finally, the fifth element requires that it be reasonably practicable and feasible to prevent access to the condition without obstructing any reasonable purpose or use for which it was intended. Weisenberg suggested posting signs stating 'no trespassing' or 'no loitering' in the parking lot. Although Townsend did not post these specific signs, photographs show the words 'NO PARKING' painted on the ground near the tree as well as a towing company sign on the fence that states 'Customer Parking Only.' CP at 75, 1103. Arguably, the fence itself was the barrier that Townsend erected to keep children and others from crossing the parking lot. David Jr., however, was able to climb and stand on the short platform-like fence.
The argument begs the question: Was the fence a sufficient barrier to child trespassers? In this case, such a question is properly left to the trier of fact.
CONCLUSION
David Jr.'s status on Townsend's property depends on questions of fact. Weisenberg has also raised a genuine issue of material fact as to all five elements of the attractive nuisance doctrine. We find that the trial court erred in granting summary judgment to Townsend.
We reverse.
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