Case of the Day – Thursday, July 1, 2021

A CAUTIONARY TALE FOR JULY 4TH

As millions of dollars worth of largely illegal fireworks are deflagrated in honor of America’s birthday, it’s a pretty good idea to consider the precautions people need to take in order to remain safe. Especially now, as our exit from the pandemic may lead to more fireworks usage, not to mention more idiocy.

Today’s case reminds us of potential legal ramifications. The incident happened on New Year’s Day, not July 4th, but the risks are similar. A young kid in the neighbors’ yard with their permission … a bottle rocket set off by an adult guest of the neighbor … an eye lost.

The adult who lit the bottle rocket was liable, but inasmuch as she let a default judgment be entered against her, she probably had nothing. So the injured boy’s mother began prowling for a deep pocket. She claimed the homeowner was liable for several reasons, the most interesting of which was the doctrine of attractive nuisance.

Attractive nuisance balances two competing societal interests, that of protecting children (recognizing that most children will trespass on occasion and sometimes are injured when they do so) and landowners’ interest in not being unreasonably burdened to ensure that their property is safe for those children who trespass. Under the doctrine, a landowner who maintains dangerous instrumentalities on the premises easily accessible to children and likely to attract them in play, or permits dangerous conditions knowing that children are in the habit of using such things for play and who fails to exercise ordinary care to prevent children from playing with them, is liable for injuries to the children.

What is a “dangerous instrumentality?” Check out the top ten …

In today’s case, the landowner escaped liability because he had exercised ordinary care. But amidst the picnic food and beer and adults playing with fireworks, some kids are going to get hurt on July 4th, and some landowners who let it go on knowing that kids might be attracted — even without permission — may be liable.

Have a safe Fourth of July.

Keith v. Peterson, 922 So.2d 4 (Ct.App. Miss. 2005). Young Brandon Keith was struck in the eye by a bottle rocket while playing with friends in the Petersons’ backyard.

The Petersons had held a New Year’s Eve party the night before, and some of the Petersons’ friends were picking up unused fireworks — which a few of previous night’s partygoers had brought with them the night before — which were strewn around the yard. Brandon, who had attended the party because he was visiting his grandmother across the street, got permission to play in the Petersons’ yard by his grandmother as well as by Mrs. Peterson. While the children were playing hide and seek (and Brandon was hidden in the bushes), one of the people cleaning up the yard lit a bottle rocket and threw it into the air. The rocket ignited, flew across the yard, and put Brandon’s eye out.

Mr. Peterson was on his way home from an errand at the time and didn’t know Brandon was in the yard. The woman who had lit the rocket had no idea Brandon was hidden in the bushes. Brandon’s mother sued Mae Langston, who had lit the rocket, and the Petersons. Mrs. Keith obtained a default judgment against Mae for $350,000, but the trial court granted summary judgment for the Petersons and dismissed the case against them.

Held: The trial court’s dismissal was upheld.

The Court of Appeals first considered whether Brandon was an “invitee” — one who enters the property of another in response to an express or implied invitation of the owner or occupant for their mutual benefit — or a “licensee” — who enters another’s property for his own benefit or pleasure — or a mere trespasser. A landowner owes the highest duty to an invitee, the duty to maintain his property in a reasonably safe condition, and when not reasonably safe to warn only where there is hidden danger or peril that is not plain and open view. For a licensee or trespasser, on the other hand, a landowner owes only the duty to have refrained from willfully or wantonly injuring him or her. Normally, the status of the plaintiff is a jury question, the Court said, but where the facts aren’t in dispute, the court can make the determination as a matter of law. In this case, young Brandon was on the Peterson property as a “licensee,” because he had the Petersons’ permission to be there and he was there for his own pleasure — to play with other children — rather than for the Petersons’ benefit. Because Brandon was a licensee, the Petersons only owed him a duty to refrain from willfully or wantonly injuring him.

To breach that duty, the Court said, requires more than mere inadvertence or lack of attention. Instead, the landowner’s conduct must show conscious disregard of a known serious danger. Here, the Court ruled, the undisputed evidence showed the Petersons didn’t engage in wanton or willful conduct. The property owner was riding his bicycle towards his property when he saw children playing in his yard and two adults cleaning up fireworks, and it was at this time that Mr. Peterson saw one of the adults ignite the bottle rocket. He didn’t know that Brandon was one of the children playing on his property until he heard his scream, and Brandon testified that Mae Langston didn’t know that he was hiding behind hedges. And because the guests cleaning the yard weren’t paid employees, the doctrine of respondeat superior did not apply to make the Petersons liable.

Brandon’s mother argued that the doctrine of attractive nuisance applied to this action. The Court noted that the theory of attractive nuisance was that a landowner was subject to liability for physical harm to children trespassing thereon if the property owner failed to exercise ordinary care in maintaining the dangerous instrumentality which attracted the children. That didn’t apply here, the Court said, because the record showed that Mr. Peterson exercised ordinary care, he was not liable. There was no testimony that he had allowed children to ignite the remaining fireworks without supervision. In fact, he had two adults removing fireworks from his yard, and he was not on his property at the time of the incident and was unaware of licensee Brandon’s presence on his property.

– Tom Root