Attractive Nuisance Summary

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Argument
For use of the defense of then attractive nuisance doctrine the plaintiff must prove five elements: (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and ( c) children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, (d) the utility to the possessor of maintaining the condition and burden of eliminating the danger are slight as compared with …show more content…
HERRERA'S MOTION FOR SUMMARY JUDGEMENT BECAUSE THE PLAINTIFFS COULD NOT PROVE THAT DUE TO MARIA MALONE'S YOUTH SHE DID NOT DISCOVER THE CONDITION OR REALIZE THE RISK INVOLVED IN INTERMEDDLING WITH IT OR IN COMING WITHIN THE AREA MADE DANGEROUS BY IT.
Under Arizona's Attactive Nuisance doctrine, a child because of their youth did not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it when (a) the child is not of age to appreciate the danger and (b) the child hold the intelligence to appreciate the danger. See Barnhizer v. Paradise Valley Unified Sch. Dist., 123 Ariz. 253 (1979); Carlson v. Tucson Racquet & Swim Club, 127 Ariz. 247 (Ct. App. 1980)
If the child is of an age and holds the intelligence to appreciate the danger the attractive nuisance doctrine does not apply . Barnhizer v. Paradise Valley Unified Sch. Dist., 123 Ariz. 253 (1979). In Barnhizer, A thirteen year old boy trespass onto the school's property climbing on an I-beam located on the roof and fell to his death. The parents brought a wrongful death action against the school under the theory of attractive nuisance. Id., The courts ruled in favor of the school because the boy was of age and intelligence to appreciate the clear danger of falling the attractive doctrine did not …show more content…
HERRERA'S MOTION FOR SUMMARY JUDGEMENT SHOULD BE GRANTED BECAUSE THE PLAINTIFFS COULD NOT PROVE THAT THE UTILITY TO MS. HERRERA OF MAINTAINING THE CONDITION IS SLIGHT AS COMPARED TO THE RISK TO YOUNG CHILDREN INVOLVED THEREIN.
Under Arizona's Attractive Nuisance doctrine, the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein when maintaining the condition could prevent harm to children with (a) slight reasonable precaution and (b) slight expense to the possessor. See Buekeye Irrigation Co. v. Askren, 45 Ariz. 566 (1935); Spur Feeding Co. v. Fernandez, 106 Ariz. 143
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