RAYMOND JOHNSON, ETC., PETITIONER,
v.
DOUGLAS BATHEY, ETC., ET AL., RESPONDENTS
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In this negligence case involving a child injured by an agricultural pump, the Florida Supreme Court affirmed summary judgment for landowners under the attractive nuisance doctrine. The Court declined to adopt the Restatement (Second) of Torts § 339 and instead maintained Florida's requirement that a defendant must have 'allured' the plaintiff onto dangerous premises.
The Court affirmed that Florida requires allurement as an essential element of attractive nuisance liability. Summary judgment was proper because the plaintiff was not allured by the pump itself, which he did not know about until after he had already traveled onto the property.
[1] An "attractive nuisance" claim requires an allegation that the defendant "allured" the plaintiff onto the dangerous premises.
[2] A landowner is not liable under the attractive nuisance doctrine if the plaintiff was not allured onto the premises by the dangerous condition.
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Join FLexlaw to unlock all legal intelligence“There is no doubt that plaintiff was not allured onto the premises by the existence of the pump, because the children didn't even know about the pump until they had traveled some distance onto the property.”
The district court's reasoning that summary judgment was proper because the plaintiff lacked knowledge of the dangerous condition until after entering the property.
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Join FLexlaw to unlock all legal intelligenceA nine-year-old boy and his brother entered a lessee's agricultural premises to collect surplus vegetables, an activity allegedly permitted by the def…
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PER CURIAM.
This cause is before the Court on petition for certiorari to review a decision of the district court of appeal, Johnson v. Bathey, 350 So. 2d 545 (Fla. 2d DCA 1977). The district court certified that its decision passed upon a question of great public interest. Art. V, § 3(b)(3), Fla.Const. The decision of the district court was to affirm the trial court’s summary judgment in favor of the defendants in an action for damages based on the negligence of the defendants as owners and occupiers of land. The defendants Bathey were the owners of the land. The defendant Naples Limitee, Inc. was the occupier under lease and was engaged in agricultural operations on the land.
According to the complaint and the deposition of the plaintiff, the lessee corporation allowed residents of the area to enter its premises to collect surplus vegetables at its packing house. Thus the nine-year-old plaintiff and his older brother allegedly entered the premises at the express or implied invitation of the defendant Naples Limitee. It was alleged that the company knew or should have known that persons would enter in response to this invitation and would do so by the route the boys chose.
While proceeding to the packing house, the boys digressed to swim in an irrigation ditch. There the plaintiff saw and heard a noisy irrigation pump in operation. He moved closer to investigate. The pump had two universal joints exposed and the plaintiff’s shirt was caught in them. The result was that his hand and arm were pulled into the mechanism and injured.
In concluding that summary judgment was proper, the district court held that in an action based on attractive nuisance, there must be an allegation that the defendant “allured” the plaintiff upon the dangerous premises. Concrete Construction, Inc. v. Petterson, 216 So. 2d 221 (Fla.1968). The court observed:
There is no doubt that plaintiff was not allured onto the premises by the existence of the pump, because the children didn’t even know about the pump until they had traveled some distance onto the property. Therefore, under the rationale of Concrete Const., Inc., the court below properly entered a summary judgment for the defendants.
Johnson v. Bathey, 350 So. 2d at 547—48.
The district court certified to us the question of whether Concrete Construction is controlling or whether Section 339 of the Restatement of Torts, Second, should be adopted as the better rule. The Restatement dispenses with the required element of “allurement.” We decline to follow the Restatement and adhere to Concrete Construction.
The decision of the district court is affirmed.
It is so ordered.
BOYD, OVERTON, SUNDBERG and ALDERMAN, JJ., concur. ENGLAND, C. J. and ADKINS, J., dissent.
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In re the Est. OF Chad Starling. Dewayne Y. Starling & Wilma C. Starling v. Asis Saha and Barbara Saha, 451 So. 2d 516 (Fla. 5th DCA 1984)…plying the attractive nuisance doctrine, we are bound by the Florida Supreme Court’s requirement that the plaintiff allege and prove that a child was lured or attracted onto the land by the condition or structure that injured him. Johnson v. Bathey, 376 So. 2d 848 (Fla.1979); Concrete Construction, Inc. of Lakeworth v. Petterson, 216 So. 2d 221 (Fla.1968). The source of this requirement is apparently the much criticized opinion by Justice Holmes in United Zinc & Chemical Company v. Britt, 258 U.S. 268, 42 S.C…
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Martinello v. B & P USA, Inc., 566 So. 2d 761 (Fla. 1990)…(Emphasis added.) This Court has approved these principles and also required that the property owner entice the child upon the dangerous premises. See Concrete Constr., Inc. v. Petterson, 216 So. 2d 221 (Fla.1968), reaffirmed in Johnson v. Bathey, 376 So. 2d 848 (Fla.1979). Subsection (c) is important because, if the jury believes the child does realize the risk of intermeddling with the dangerous condition, then the attractive nuisance doctrine is inapplicable, the child is considered an ordinary trespasse…
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Webb v. Prestige Realty, Inc., 392 So. 2d 34 (Fla. 3d DCA 1980)…PER CURIAM. Affirmed. Banks v. Mason, 132 So. 2d 219 (Fla.2d DCA 1961); Adler v. Copeland, 105 So. 2d 594 (Fla.3d DCA 1958); McCormick v. Williams, 194 Kan. 81, 397 P. 2d 392 (1964); See also Johnson v. Bathey, 376 So. 2d 848 (Fla.1979); Wood v. Camp, 284 So. 2d 691 (Fla.1973); Concrete Construction, Inc., of Lake Worth v. Petterson, 216 So. 2d 221 (Fla.1968).…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Concrete Constr., Inc. v. Petterson, 216 So. 2d 221 (Fla. 1968)
- Johnson v. Bathey, 350 So. 2d 545 (Fla. 2d DCA 1977)