Whether Sherman, under the attractive nuisance doctrine, will likely prevail against Carlisle for multiple injuries he sustained in a fall from wooden steps of a tree house in disrepair while trespassing upon Carlisle’s property when: (1) Carlisle was aware that the neighborhood surrounding his property was populated with children; (2) a severe storm had damaged Carlisle’s property and exposed the previously concealed tree house; (3) Sherman was six years of age at the time of his injury; (4) Carlisle had little incentive to make repairs to the tree house prior to the storm because of its concealment; (5) immediately following the storm, Carlisle made arrangements with a contractor at a higher than average rate to make repairs to his property; and (6) Sherman was enticed to enter Carlisle’s land by construction materials and yellow caution tape and was unaware of the tree house until entering upon the property. Statement of Facts
Carlisle has contacted our office seeking advice regarding an action against him for injuries suffered by a neighborhood boy, Sherman, while Sherman was trespassing upon his property. You have asked me to determine whether Sherman can prevail by proving Carlisle liable for his injuries.
In 2005, Carlisle purchased “Fieldstone,” a two-acre estate sixty-five miles southwest of downtown Miami. Carlisle anticipated that his New York based company would expand into southern Florida and that he would eventually settle at Fieldstone. However, due to increased demands from his New York business, Carlisle has rarely spent more than two or three days at a time at Fieldstone, with long stretches in between.
The estate, at the time of the incident, had been poorly maintained for quite some time and the backyard was vastly overgrown. Its unkempt condition appealed to Carlisle, however, as he looked forward to clearing the grounds himself. He was likewise intrigued by an abandoned tree house on the property that appeared structurally sound although in need of some repairs to its floorboards and slatted steps. The tree house was completely concealed by decades of overgrown foliage. Furthermore, Carlisle, who valued his privacy, was pleased that the property was protected by a high wooden fence, which concealed the residence, the yard, and the tree house from neighbors and passersby. Because of the tree house’s concealment and the security of the fence, Carlisle decided that the tree house did not require immediate repairs. None of Carlisle’s neighbors were aware of the tree house on his property.
In October 2009, Fieldstone was severely damaged by a storm that swept the Florida coast. The back fence was weakened after being jarred by an uprooted tree and high winds stripped away most of the foliage that had concealed the tree house. As a result, the tree house was now visible from within the property, although it was still hidden from outside view. Carlisle made immediate efforts to hire work crews to make repairs. However, due to widespread damage across the greater Miami area, demand for services was extensive and most local contractors were charging very high rates. After contacting several contracting services, Carlisle finally made arrangements with a Broward County contractor, although at a higher than average rate.
Less than two weeks after the storm, a subcontractor delivered building materials to Fieldstone and stacked them in the backyard. The work crew would be available in two or three weeks to begin repairs. In the meantime, Carlisle took short-term measures by posting several “no trespassing” signs conspicuously about the exterior and interior of his property. He also ran yellow caution tape around the tree house and building materials. Carlisle then returned to his business in New York.
The next day, Sherman and three other neighborhood boys, all five to six years of age, were playing in an alley behind Carlisle’s property when their ball accidentally crashed into...
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