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59. In a suit brought on the child's behalf against the corporation and based only on the facts above, who is likely to prevail?
A bright 12-year-old child attended a day-care center after school. The day-care center was located near a man-made duck pond on the property of a corporation. During the winter, the pond was used for ice-skating when conditions were suitable. At a time when the pond was obviously only partially frozen, the child sneaked away from the center's property and walked out onto the ice over the pond. The ice gave way, and the child fell into the cold water. He suffered shock and would have drowned had he not been rescued by a passerby. At the time of the incident, the pond was clearly marked with numerous signs that stated, «THIN ICE—KEEP OFF.» When the child sneaked away from the day-care center, the center was staffed with a reasonable number of qualified employees, and the employees were exercising reasonable care to ensure that the children in their charge did not leave the premises. There had not been a previous instance of a child coming onto the corporation's property from the day-care center. The jurisdiction follows a rule of pure comparative negligence.
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A landowner has a duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on the property. This special duty will be imposed if: (i) a dangerous condition is present on the property, of which the landowner is or should be aware; (ii) the owner knows or should know that children frequent the vicinity of the dangerous condition; (iii) the condition is likely to cause injury or is dangerous because of the child's inability to appreciate the risk; and (iv) the expense of remedying the situation is slight compared with the magnitude of the risk.
A landowner owes no duty to an undiscovered trespasser. However, once a landowner discovers the presence of a trespasser, or a trespasser is reasonably anticipated, he is under a duty to exercise ordinary care to warn the trespasser of, or to make safe, artificial conditions known to the landowner that involve a risk of death or serious bodily harm and that the trespasser is unlikely to discover. There is no duty owed for natural conditions or less dangerous artificial conditions.
C is correct. Children are held to a standard of conduct that is reasonable for a child of similar age and intelligence. Here, the child was a bright 12-year-old, and as such, would have been able to read and comprehend the sign that said, «THIN ICE — KEEP OFF.» This warning was clear enough that the child should have appreciated the magnitude of the risk.
A is incorrect. The duty of a landowner to keep premises reasonably free of dangerous conditions applies when the landowner has reason to anticipate trespassers, an artificial condition exists that poses a risk of death or serious bodily harm, and the trespasser is unlikely to discover it. Not only is the presence of the icy lake obvious to any trespasser, but the corporation acted reasonably in posting warning signs and the child should have appreciated the risk given those circumstances.
B is incorrect. The attractive nuisance doctrine does not apply here because it requires that the landowner have reason to know that children are likely to trespass, as well as evidence that the injured party did not appreciate the risk involved. There is no suggestion that children often stray from the day-care center. However, even if they did, the fact that this child did not appreciate the risk was unreasonable based on the warning signs and his level of intelligence and age.
D is incorrect. This answer reaches the correct answer with the wrong reasoning. The corporation should prevail because the child should have appreciated the risk when he trespassed, not because the daycare center was negligent. Even if the daycare had a duty to keep children away from the ice, the corporation could also be liable if it had been negligent. However, it will not be liable because it took reasonable steps to discourage people from going onto the ice, and the child acted unreasonably.