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27. In his action against the defendant, will the plaintiff prevail?
An action has been brought against the defendant on the plaintiff's behalf to recover damages for the injuries the plaintiff sustained from his fall. In this jurisdiction, the traditional common-law rules pertaining to contributory negligence have been replaced by a pure comparative negligence rule.
While the defendant and his family were away, the plaintiff, aged 11, a new boy in the neighborhood, wandered into the defendant's yard and saw the trampoline. The plaintiff had not previously been aware of its presence, but, having frequently used a trampoline before, he decided to set it up, and started to jump. He lost his balance on one jump and took a hard fall on the bare ground, suffering a serious injury that would have been prevented by the mats.
A defendant has a small trampoline in his backyard which, as he knows, is commonly used by neighbor children as well as his own. The trampoline is in good condition, is not defective in any way, and normally is surrounded by mats to prevent injury if a user should fall off. Prior to leaving with his family for the day, the defendant leaned the trampoline up against the side of the house and placed the mats in the garage.
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A is correct. Here, all four elements are arguably met, but only answer choice A offers a reasonable explanation for why except the plaintiff will not recover — a child attracted to set-up and use a trampoline might reasonably be aware of the risks of using it without mats, thus failing element (iii). More importantly, however, none of the other answer choices are valid, and all four answer choices begin with «No.» Thus, the question comes down to identifying the best explanation for why the plaintiff will not recover.
B is incorrect. This answer choice describes the standard applicable to children accused of being negligent: a reasonable child of similar age, intelligence, and experience. Here, the child might have been negligent in using the trampoline without protective mats. However, the only way the child being negligent would bar recovery would be under principles of contributory/comparative negligence. The fact pattern states that pure comparative negligence applies (note: even if the question didn't state this, the MBE instructs test takers to apply pure comparative negligence unless directed otherwise). The defendant was negligent to some extent by leaving a trampoline in his yard after putting away the protective mats despite his knowledge that children play on the trampoline «commonly.» Thus, even if the child-plaintiff was 99% negligent — which seems unlikely since the child was an experienced trampoline user, and the trampoline had no apparent defects — that would not bar his recovery.
C is incorrect. An attractive nuisance is a sub-category of trespasser liability in the negligence land possessor hierarchy. Trespassers, by definition, do not have permission to enter the land. Thus, attractive nuisance normally involves a lack of permission, and that lack of permission does not bar the child-plaintiff from recovering.
D is incorrect. Although some states require that the artificial condition «lured» the child onto the premises, that is not the majority rule. It is sufficient if the child would be attracted to the artificial condition after the child entered the land for other reasons (so long as the other elements, discussed above, are also met).