Section 13.32 Present Rule

• Library: Tort Law 2016

2. (§13.32) Present Rule

In Arbogast v. Terminal Railroad Ass’n of St. Louis, 452 S.W.2d 81 (Mo. 1970), the Supreme Court suggested that, because the law regarding the duties owed a licensee had been changed by the decision in Wells v. Goforth, 443 S.W.2d 155 (Mo. banc 1969), Missouri should also adopt Restatement of Torts § 339 (1934) in place of the attractive nuisance doctrine. Approximately 30 days later, the Supreme Court of Missouri acted on its own suggestion in Salanski v. Enright, 452 S.W.2d 143 (Mo. 1970), rejecting the attractive nuisance doctrine and adopting Restatement of Torts § 339:

A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if

(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and

(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition is slight as compared to the risk of young children involved therein.

Salanski, 452 S.W.2d at 146 n.1.

The Salanski case reached the Supreme Court of Missouri after the trial court dismissed the plaintiff’s suit for failure to state a cause of action. According to the allegations of the petition, the defendants maintained a tree house approximately 30 feet in the air, the tree house was used by children in the neighborhood, including the plaintiff, for play, and it was very dangerous to ascend to and descend from the tree house. Although "height" had been held in Arbogast to be a simple and obvious danger, the court in Salanski held that the tree house presented an irresistible attraction to children, the type of attraction that could be so distracting that a child could either forget or simply not discover or appreciate the danger of being approximately 30 feet in the air. Lastly, the court pointed out that the liability imposed by Restatement of Torts § 338 (1934) would apply not only to a trespassing child but also to a child licensee. Salanski, 452 S.W.2d at 146.

The "distraction" rationale of Salanski was also applied by the Supreme Court of Missouri in Anderson v. Cahill, 485 S.W.2d 76 (Mo. 1972). In Anderson, the five-year-old plaintiff was injured when he fell into a ten-foot-deep excavation on church premises in Independence, Missouri. At the time of the accident, the property was under the control of Cahill, a...