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Restatement Rule and Requirements for Application of the Rule

Generally, the Restatement Rule is applied in states that have never adopted the attractive nuisance doctrine.  In order to establish liability under the rule the following five requirements must be satisfied[i]:

  • that the place where the dangerous condition was maintained was one upon which the possessor knew or should have known that small children would frequently visit and play; and
  • that the dangerous condition was one of which the possessor knew, or should have known to have involved an unreasonable risk of death or serious bodily harm to such children; and
  • that the child, because of its tender years, did not realize the risk involved in encountering the instrumentality causing injury; and
  • that the utility of eliminating the danger was slight as compared to probability of injury; and
  • that the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.


All five requirements of the rule must be considered in its entirety and not selectively.  Courts generally apply a strict interpretation to the rule requirements and recovery will not be allowed if proof fails as to any one condition[ii].

The question that whether the conditions of the rule have been met is a question of fact for the jury to decide.  A court while determining the question of liability under the rule shall also look at the following factors[iii]:

  • whether the injured child had the ability to appreciate the danger and did realize the danger;
  • whether the child was young enough or immature enough to come within the protection of the rule;
  • whether the defendant knew about the presence of the children, or ought to have foreseen their presence, and
  • whether the defendant upon knowledge of the presence of children should have guarded or fenced the premises.


According to the doctrine, an injured person who stole property or who was aware of the fact that s/he had no right to enter is not entitled to recover.  But s/he can recover under the rule because the rule generally recognizes the propensity of children to meddle with dangerous conditions.  Likewise, a possessor who knows that children too young to understand apparent dangers are likely to trespass on his/her land, can be subjected to liability under the rule[iv].

Therefore, under the rule, where the trespass is committed in an area known to be frequently used by children, and where the attraction involved creates a distraction from the actual danger there is no rigorous requirement that the defect must be latent.

Generally, the liability for injuries to trespassing children under the rule depends upon whether the injury was caused by an artificial condition upon the land.  However there are cases where the rule is applied in situations where the injury is caused by natural conditions.  Hence the rule is applied in cases involving a condition, such as a body of water, which a child might be expected to understand and appreciate.  The rule is also applied in cases where a land is improved in its natural state so as to make it safe for trespassing children.  Here even if the child could understand the condition, the possibility of liability is left open.

Many courts treat the doctrine and rule as the same because of the similarities between the two rules.  While the courts which focus on the areas of difference between the rule and the doctrine hold them as rules in conflict.  However, there are some other courts that hold the doctrine as not contrary to the principles set forth in the rule.

[i] Kelley v. Brazos Valley Cotton Oil Mill, Inc., 355 S.W.2d 739, 739-740 (Tex. Civ. App. Waco 1962).

[ii] Beard v. Atchison, T. & S. F. R. Co., 4 Cal. App. 3d 129 (Cal. App. 2d Dist. 1970).

[iii] Clifton v. Patroon Operating Corp., 271 A.D. 122 (N.Y. App. Div. 1946).

[iv] Smith v. Smith-Peterson Co., 56 Nev. 95 (Nev. 1935).

Inside Restatement Rule and Requirements for Application of the Rule