The Lawletter Vol 39 No 2
Does the attractive nuisance doctrine apply only to trespassers? That was the issue decided recently by the Colorado Supreme Court in S.W. ex rel. Wacker v. Towers Boat Club, Inc., 2013 CO 72, 315 P.3d 1257. In the S.W. case, a child was seriously injured when the inflated "bungee run" structure on which he was playing was hurled by a gust of wind up into the air before crashing back to earth. It was undisputed that at the time of the accident, the child was a licensee on the premises rather than a trespasser. Under Colorado's premises liability statute, Colo. Rev. Stat. § 13‑21‑115, the common-law attractive nuisance doctrine is retained with respect to children under 14 years of age. The S.W. court described the doctrine by quoting from an older Colorado case:
If an owner sees fit to keep on his premises something that is an attraction and allurement to the natural instincts of childhood, the law . . . imposes upon him the corresponding duty to take reasonable precautions to prevent the intrusion of children, or to protect from personal injury such as may be attracted thereby.
2013 CO 72, ¶ 12, 315 P.3d at 1260 (court's emphasis) (quoting Kopplekom v. Colo. Cement-
Pipe Co., 16 Colo. App. 274, 278, 64 P. 1047, 1048 (1901)).
The defendant in S.W. argued that the attractive nuisance doctrine did not apply, because its application is limited to situations in which the injured child is a trespasser. Rejecting this argument, the S.W. court explained:
Because section 13-21-115 specifically incorporates the doctrine of attractive nuisance, our first step is to examine the precise contours of the doctrine as it developed at common law. Our survey reveals that, although the doctrine primarily featured cases involving child trespassers, its application did not turn on a child's classification within the trespasser- licensee‑invitee trichotomy. Rather, the linchpin of the attractive nuisance doctrine was the intuitive concept that children, due to their youth and impulsive behavior, are instinctively drawn to certain objects and are thus prone to placing themselves in danger. For this reason, the doctrine imposed a duty on landowners to protect all children from certain attractions on their land, whether they entered the land through trespass or invitation. Therefore, all children—regardless of classification within the trichotomy—could bring a claim for attractive nuisance at common law.
Id. ¶ 10, 315 P.3d at 1259.
The court further concluded that application of the doctrine to licensees would be consistent with Colorado's constitution, which requires that the circumstances under which a licensee may recover include all of the circumstances under which a trespasser could recover and that the circumstances under which an invitee may recover include all of the circumstances under which a trespasser or a licensee could recover.
Three justices dissented from the majority's ruling. Justice Eid agreed that the attractive nuisance doctrine is not limited to trespassing children, but she argued that the plaintiffs' case must fail because their licensee claim had been dismissed in a ruling that was not appealed. She reasoned that attractive nuisance plaintiffs must demonstrate that the landowner violated the duty owed to licensees, which requires a showing that the landowner "actually knew" of the danger on the premises. Id. ¶ 27, 315 P.3d at 1264 (Eid, J., dissenting) (quoting Colo. Rev. Stat. § 13-21-115(3)(b)).Justice Márquez, joined by Justice Coats, also dissented, arguing that the common-law attractive nuisance doctrine was limited in application to trespassing children. She also noted that Colorado is among a minority of jurisdictions that apply the doctrine only where a child is attracted onto the land by the condition that injured him or her.