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Keith v. Peterson6/28/2005
y if the child is a licensee or an invitee." Restatement (Second) of Torts § 343B (1965). Brandon was found to be a licensee. Thus, the attractive nuisance doctrine does apply.
. However, even though the attractive nuisance doctrine is applicable, Peterson is still not liable. For liability to be established, Keith must also prove that Peterson failed to exercise ordinary care in maintaining the dangerous instrumentality which attracted the children. Lucas v. Hammond, 116 So. 536, 537 (Miss. 1928). Keith has failed to provide such evidence.
. The record is clear that Peterson exercised ordinary care. There is no testimony that Peterson allowed the children to detonate the remaining fireworks without supervision. Additionally, there is no testimony that the children were ever playing with the fireworks on the morning of the incident. Rather, the testimony was undisputed that Peterson had two adults removing the fireworks from his yard. Furthermore, Peterson was not on his property at the time of the incident. He was unaware of Brandon's presence on his property. Peterson was riding his bicycle towards his home when he saw Langston shoot the bottle rocket. There was no evidence presented suggesting that Peterson breached the duty of care that he owed Brandon.
. Accordingly, this issue is also without merit. The trial judge was correct to grant summary judgment in favor of the Petersons. Therefore, we affirm.
. THE JUDGMENT OF THE CIRCUIT COURT OF PEARL RIVER COUNTY IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, BARNES AND ISHEE, JJ., CONCUR.
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