Texas Legislature Codifies The Attractive Nuisance Doctrine
by Michael C. Smith
This summer the Texas Legislature enacted Section 75.007 of the Texas Civil Practices & Remedies Code in response to a new Restatement of Torts that adopts a broad duty owed to entrants upon another’s property. Section 51 of the Restatement (Third) of Torts proposes a unitary standard of reasonable care for all entrants on land except the undefined “flagrant trespasser.”
The Restatement’s new standard differs significantly from Texas common law, which has long imposed varying duties on property owners depending on the entrant’s status as an invitee, licensee or trespasser. Two Restatement contributors advocate the new standard despite characterizing it as “a major departure from the first and second restatements.” Other ALI advisors warn the new standard is “fundamentally unsound” because there is no public policy need to change the Restatement’s approach, and it will create confusion as to what is a “flagrant trespasser.”
In Section 75.007, the Texas Legislature codified the common law duty that Texas property owners owe to trespassers and the attractive nuisance doctrine. A “trespasser” is defined as “a person who enters the land of another without any legal right, express or implied.” The new statute goes on to provide that 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 willfully, wantonly, or through gross negligence.” This is the duty expressed over 55 years ago by the Texas Supreme Court in Burton Constr. & Shipbuilding Co. v. Broussard, 273 S.W.2d 598, 603 (Tex. 1954).
Section 75.007 does differ slightly from the former common law attractive nuisance doctrine. Over 60 years ago, the Texas Supreme Court adopted that doctrine from Section 339 of the Restatement of Torts. Banker v. McLaughlin, 208 S.W.2d 843, 847 (Tex. 1948). And in 1997, the Texas Supreme Court observed that the Restatement (Second) of Torts “still correctly states the doctrine.” Tex. Utils. Elec. Co. v. Timmons, 947 S.W.2d 191, 193-94 (Tex. 1997).
Under the common law attractive nuisance doctrine in Texas, property owners owe a duty to exercise ordinary care to make reasonably safe or warn of the condition that has allured “children of tender years” to the property. In effect, property owners owe trespassing children the same duty owed invitees. Historically, Texas courts only applied the doctrine when the plaintiff was, at most, 12 years old. The Timmons court declined to set an age limit, holding instead that the doctrine applies depending on whether “the child is still too young to appreciate the danger.”
Section 75.007’s sponsors sought to restrict the attractive nuisance exception by limiting it to children younger than 16 and creating a rebuttable presumption that children 14 and older appreciate the risk of highly dangerous artificial conditions. These limits failed to make the final bill. As a result, Section 75.007(c) provides that 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 owner knew or reasonably should have known that children were likely to trespass in the place where the artificial condition exists;
(2) The owner knew or reasonably should have known the artificial condition existed, and realized or should have realized the condition involved an unreasonable risk of death or serious bodily harm to such children;
(3) The injured child was too young to discover the condition or realize its harm;
(4) The owner’s utility in maintaining the condition and burden to remove the danger were slight compared to the risk to the child; and
(5) The owner failed to exercise reasonable care to eliminate the danger or otherwise protect the child.
The statute follows, almost verbatim, the Texas Supreme Court’s adoption of the Restatement (Second) of Torts. The difference is that Section 75.007(c) requires injury by a “highly dangerous” artificial condition for liability to exist; Timmons and the Restatement (Second) of Torts refer only to an artificial condition.
Section 75.007(d) also creates civil immunity for the owner, lessee or occupant of land who defends persons or their property from a trespasser using justifiable force as recognized under the Penal Code.
Michael C. Smith, a member of Cobb Martinez Woodward PLLC, is a member of the Tort & Insurance Practice Section of the DBA. He can be reached at firstname.lastname@example.org.