Legal Writing Interoffice Memorandum

You have asked me to research and provide all relevant information that will help to assist you in whether or not to take the case of Tom and Betty Thomas. Will David being a trespasser hurt their case? What information about attractive nuisance could be helpful?

LEGAL ISSUES

The son of Tom and Betty Thomas, David Thomas, drowned while swimming in a pool. The pool was located in an unoccupied home near the Thomas residence. David did not have permission from the homeowner to use the pool. In fact, the owner of the home had previously warned David and his friends to stay off of his property. On the day in question, David, gained access to the pool thru a closed gate, while all alone. The gate had been lock on previous occasions, but David discovered the lock was broken. Although David had intended to climb the fence, he simply removed the broken lock and gained entry.

FACTS

• David Thomas is 12. • David drowned while swimming. • The pool was located in an unoccupied home. • The gate lock was broken at the time of entry. • David entered the yard without permission. • The homeowner had previously told David to stay off of his property.

ANALYSIS

Texas Penal Code - Section 30.05. Criminal Trespass

§ 30.05. CRIMINAL TRESPASS. (a) A person commits an offense if he enters or remains on or in property, including an aircraft or other vehicle, of another without effective consent or he enters or remains in a building of another without effective consent and he: (1) Had notice that the entry was forbidden; or

(2) Received notice to depart but failed to do so. (b) For purposes of this section: (1) "Entry" means the intrusion of the entire body. (2) "Notice" means: (a) Oral or written communication by the owner or someone with apparent authority to act for the owner;

(b) Fencing or other enclosure obviously designed to exclude intruders or to contain livestock; (c) A sign or signs posted on the property or at the entrance to the building, reasonably likely to come to the attention of intruders, indicating that entry is forbidden; (d) The placement of identifying purple paint marks on trees or posts on the property

The Thomas’s have concern as to whether David would be considered a trespasser. There is no dispute that David was not invited to swim in the homeowners pool. David had previously received oral notice from the homeowner to stay off his property. I do believe that the Thomas’s can argue the attractive nuisance doctrine.

CIVIL PRACTICE AND REMEDIES CODE Sec. 75.007 TRESPASSERS

§ 75.007. TRESPASSERS. (a) In this section, "trespasser" means a person who enters the land of another without any legal right, express or implied. (b) An owner, lessee, or occupant of land does not owe a duty of care to a trespasser on the land and is not liable for any injury to a trespasser on the land, except that an owner, lessee, or occupant owes a duty to refrain from injuring a trespasser wilfully, wantonly, or through gross negligence.

(c) Notwithstanding Subsection (b), an owner, lessee, or occupant of land may be liable for injury to a child caused by a highly dangerous artificial condition on the land if: (1) the place where the artificial condition exists is one upon which the owner, lessee, or occupant knew or reasonably should have known that children were likely to trespass;

(2) the artificial condition is one that the owner, lessee, or occupant knew or reasonably should have known existed, and that the owner, lessee, or occupant realized or should have realized involved an unreasonable risk of death or serious bodily harm to such children; (3) the injured child, because of the child's youth, did not discover the condition or realize the risk involved in intermeddling with the condition or coming within the area made dangerous by the condition;

(4) the utility to the owner, lessee, or occupant of maintaining the artificial condition and the burden of eliminating the danger were slight as compared with the risk to the child involved; and (5) the owner, lessee, or occupant failed to exercise reasonable care to eliminate the danger or otherwise protect the child. (d) An owner, lessee, or occupant of land whose actions are justified under Subchapter C or D, Chapter 9, Penal Code, is not liable to a trespasser for damages arising from those actions. (e) This section does not affect Section 75.001, 75.002, 75.0021, 75.003, or 75.004 or create or increase the liability of any person.

As described in CIVIL PRACTICE AND REMEDIES CODE Sec. 75.007. TRESPASSERS in regards to David being a trespasser, the homeowner would still be liable because subsection (b) occupant of land may be liable for injury to a child caused by a highly dangerous artificial condition on the land.

David was a child (1) the place where the artificial condition exists is one upon which the owner, lessee, or occupant knew or reasonably should have known that children were likely to trespass. He had warned David and other children to stay off of his property, knowing that he had an artificial condition, the pool that would attract the children and he did not exercise reasonable care by making sure the locks were not broken.

The Attractive Nuisance Doctrine

The Attractive Nuisance Doctrine is a premises liability rule of common law in the United States that has developed as a way to hold land owners responsible for maintaining dangerous conditions upon their property that are likely to attract children who are unable to appreciate the danger. Some common examples of conditions that the doctrine has been applied to are: unprotected swimming pools, lakes, trampolines, piles of sand or debris, old cars, or defect play structures.

To establish a violation of the attractive nuisance doctrine, the following elements must be proven: (1) the place where the condition exists is one where the land owner or occupier knows or should know children are likely to trespass; (2) The condition is one that the owner or occupier knows or has reason to know involves an unreasonable risk of injury to the children; (3) The children, due to their youthfulness do not appreciate the danger;

(4) The utility of maintaining the condition and the burden of eliminating or reducing the risk is slight in comparison to the risk involved to the children; (5) The land owner or possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children.

We could can prove that the homeowner was in violation first, second, fourth and fifth elements. The Thomas’s state that David and other children had been previously warned to stay off the property. In the case Mitchell v. Akers , 401 S.W.2d 907, 1966 Tex. App. LEXIS 2262, 20 A.L.R.3d 1385 (Tex. Civ. App. Dallas 1966) The Homeowner knew that many young children lived in his neighborhood, yet negligently failed to secure a self-closing gate for his swimming pool's protective fence.

Therefore, the only disputed element is whether the David the child, due to his youthfulness did not appreciate the danger and would be considered a trespasser. In the case Townes v. Hawaii Properties, Inc., 708 F.2d 333, 1983 U.S. App. LEXIS 27241 (8th Cir. Ark. 1983) an eight-year-old is not of such tender years as to be wholly incapable of contributory negligence as a matter of law also held that children eight years of age are charged with the knowledge that bodies of water are dangerous.

CONCLUSION

In my opinion The Thomas’s have the stronger argument based on the language of the attractive nuisance doctrine and the section 75.007 of the Texas Civil Practices & Remedies Code statute. I must admit, however, that the homeowner have some very good points in his favor the property was secured by a fence all the way around.

David was warned before to stay off of his property, at this point David could be considered a trespasser and may not fall under the “tender age” definition. However, if the land occupier knows or should reasonably realize that there is a trespasser on the land, he is under a duty to exercise care to either warn the trespasser of, or make safe, artificial conditions or activities that involve a risk of death or serious bodily harm.

RECOMMENDATIONS

Some further investigation is needed. I will seek to learn whether the homeowner knew that the lock was broken, and if the gate had self-latching, self-closing device placed on the inside of the gate.

I do believe that we should take on the Thomas case. What it really boils down to is being aware of potential safety hazards around you and making a good faith effort to protect the children who may come onto your property—even the ones who have not been invited.

Finally, I recommend that we send a letter to the homeowner, explaining our position to see if we can reach a settlement and forego going to court. I have attached a draft of such a letter for your signature in the event you deem this action appropriate.