Watching Bob the Builder is not an adequate substitute for having a construction industry White Card.
On the weekend of 13-14 September 2014, 16 year old Alex Hayes entered a construction site in Kentucky with some friends. They consumed whiskey and marijuana. A little after 1am they began to leave. Alex climbed onto a piece of equipment, started it and began to drive it up a floodwall. The machine tipped over and caused severe injuries to his right leg. Hayes’ parents sought compensation on his behalf from the the property developer and its construction contractor.
It was common ground that Alex was trespassing at the time of the accident.
Kentucky statute law provides that [KY Rev Stat § 381.232 (2013)] –
The owner of real estate shall not be liable to any trespasser for injuries sustained by the trespasser on the real estate of the owner, except for injuries which are intentionally inflicted by the owner or someone acting for the owner.
The rigour of this provision is moderated by Kentucky’s doctrine of “attractive nuisance”. This doctrine says that a landowner is liable for harm to children trespassing on land, if that harm is caused by an artificial condition on the land and if –
- The place is one where the possessor knows children are likely to trespass;
- The possessor knows of the condition and should realize it poses an unreasonable risk of death or injury to such children;
- The children, because of their youth, do not appreciate the danger;
- The value of the condition for the possessor and the cost of eliminating the risk are slight relative to the risk to the children; and
- The possessor fails to exercise reasonable care to eliminate the danger or protect the children.
The defendants sought summary dismissal of the claims which was granted: Hayes v DCI Properties – D KY LLC (Campbell Circuit Court, Judge Stine, 22 July 2016, unreported). The plaintiffs appeal was dismissed: Hayes v DCI Properties – D KY LLC (Kentucky Court of Appeals, Combs, Lambert and Nickell JJ, 16 June 2017, unreported). The plaintiffs appealed to the Supreme Court of Kentucky.
The Supreme Court dismissed the appeal. It was noted that Alex was licensed to drive a car, that he was an average high school student, and that earlier in the evening he had taken steps to prevent one of his friends injuring himself on a machine.
Although we no longer adhere to a strict age cutoff, e.g., children under fourteen years of age, a child must be unable to appreciate the risk involved in intermeddling with the condition. The evidence in this case clearly demonstrates that Alex not only was capable of appreciating but also in fact did appreciate the risk of operating a piece of heavy machinery.
As a result, Alex was not entitled to rely on the attractive nuisance doctrine.