On September 30, 2015, tragedy struck a Coral Springs family when their three-year-old child got out of their apartment and drowned in a sandy canal area located behind their apartment.
Initially, suit was filed against the owner of the apartment building and the owner of the land adjacent to the apartment building. Ultimately, the owner of the apartment building was dismissed from the case when it was discovered they were not owners of land for which the sandy canal was located, leaving the owner of the out-of-business golf course as the sole defendant.
Mediation took place about 16 months after the Defendant’s proposal for settlement was served, and at mediation, a confidential settlement was reached for an amount satisfactory to the child’s parents.
OUR UPHILL BATTLE
Attractive Nuisance Doctrine – the rule that a person who owns property on which there is a dangerous thing or condition that will foreseeably lure children to trespass has a duty to protect those children from the danger, See Black’s Law Dictionary, Ninth Edition.
For the most part, all parties were proceeding under this doctrine in hopes that it would steer the case in their favor. Dating back to 1950, there are only 101 published opinions from the state of Florida that mention the term “Attractive Nuisance.” Of those 101 opinions, only 18 also include the term “drowning.” Of those 18, most cases found that there was not an Attractive Nuisance, by law, and the claims were barred. In fact, you’d have to go back to 1949 to Allen v. Willam P. McDonald Corporation (42 So. 2d 706) to find the Florida Supreme Court case that was most similar to Plaintiff’s position. The Court held that:
A spoil bank of white sand adjacent to an artificial lake or pond is an unusual element of danger and will render it more attractive than the ordinary pond. There is nothing more enticing to a child or a gang of children than a sand pile. One of the most common accessories of a child’s play ground equipment is a sand box or a sand pile. The day school, the church school and the kindergarten are supplied with them. Children are as prone to resort to a sand pile as a mule is to a hay stack, a dog is to a meat house or bees are to a sugar kettle. It is just as natural for children of tender years to play on a sand pile as it is for their elder brothers to loaf around a sorority house or their grandfathers to respond to a dinner call.
In the case at hand, the facts are similar: on the adjoining property, an out-of-business golf course, there was a sandy bank that in the dry months would be a sand pit in which children would play. However, when the rain came, the pit filled up and did not drain particularly well. At the time of the drowning, the pit was filled with water (see picture at top of article). Our position was that the Allen decision helped us prove that legally, the sandy canal was in fact an Attractive Nuisance. The Defendants disagreed.
The Court ultimately agreed with our position that it was an Attractive Nuisance. The Court held, citing Allen, that the sandy canal was in fact an Attractive Nuisance as a matter of law, and that the landowner then had a duty to protect [children] from the dangers presented by the Attractive Nuisance.
The evidence was undisputed that the landowner did nothing to protect from the sandy canal – no fences, signs, gates, etc. The ruling by the Court was a huge win for us and our clients, and it gave us optimism heading into mediation that this matter may actually resolve.
Thankfully, the Attractive Nuisance doctrine helped us add value to the case so that when settlement talks got underway, the Defendant was willing to pay enough money that our clients were willing to accept and resolve.
We want to thank our clients for the chance to represent them during such a difficult time. At Lawlor & Associates, we know the importance of turning over every stone and fighting relentlessly for our clients.