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Attractive Nuisance

January 14th, 2008

I’ve never liked that legal principle–the idea that a person who doesn’t go far enough to make their goodies inaccessible is more responsible for harm to those who try to access them illicitly. The classic example is when a person has a swimming pool, but their fence isn’t high enough to discourage people from climbing over it to trespass and play in the pool–and so when a trespasser drowns, it’s the fault of the person who owns the pool. Unless it can be shown that the pool owner knowingly enticed people to come play in his pool or otherwise gave permission, I do not agree that he should be held liable.

That principle is at play in a lawsuit filed by a prisoner, who says that the state is at fault for injuries he received while attempting to escape from prison. Why is the state at fault? Because they made it too easy to escape.

I don’t agree with Kevin Drum that the guy has a point. Sure, the prison may have been stupid to take a guy who once escaped by pushing up a ceiling tile, and put him back into the cell where he could escape by pushing up a ceiling tile again. But to say that they bear the burden of responsibility for they guy injuring himself is ludicrous.

It all comes down to responsibility. Yes, the prison bears some responsibility for making it too easy for a prisoner to escape their cell, but that responsibility is to the community, not to the prisoner. The greater responsibility, especially to himself, is borne by the guy who tried to escape. Now, if the prisoner escaped and injured a citizen, then the citizen could take action against the criminal and the prison, in that order–they would have a case, being damaged by events that both other parties bore responsibility for.

But for the criminal to sue the prison for damages he was more responsible for, I do not accept that idea. Just like the idea that a trespasser can sue a homeowner for failing to make a swimming pool inaccessible enough–the person who trespasses and decides to use the pool is more responsible, and so has no right pointing the finger elsewhere and demanding redress.

Even more indefensible is the case where a burglar sues a homeowner for injuries they sustained while burgling that person’s home. To even imagine that such a suit could be awarded is so unbelievably preposterous that it makes me wonder if such a thing ever really happened at all, or if it simply one of those apocryphal stories ginned up when someone is trying to put a cap on lawsuit awards.

It all comes down to responsibility. If I wander on to someone’s lawn–a place where it is understood that I should not go without specific good reason–then it’s my own damned fault if I trip on a sprinkler head and break my silly neck. In the context of lawsuit awards, the court system should observe a “glass houses” principle.

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  1. Cyle
    January 14th, 2008 at 19:26 | #1

    I’ve always thought this type of thing was crazy. The burglar suing his victims because he was hurt in their house, for example — it’s insane!

    Are these people able to sue, in turn, for the damages done to them? I guess it doesn’t matter, considering the difference there would be between what they’d get out of the lawsuit versus what the other person would get out of them.

  2. A Joe
    January 15th, 2008 at 02:16 | #2

    Hey, thats why insurance runs rampant in America. Isn’t it insane that you have to pay for somebody else’s lost lawsuits?

  3. Luis
    January 15th, 2008 at 07:45 | #3

    Interesting. I just tried to search for the story of the burglar suing his victims, and every account I could find led back to the story of a burglar who gets injured falling through a skylight and sues for damages. That story has a variety of victims–sometimes it’s a home, sometimes a business–but most iterations are vague. I did find one blog which seemed to have tracked down the genesis tale:

    Bizarro-Overlawyered is upset about the fact that a legislator, over twenty years ago, mentioned a lawsuit involving “a burglar [that] fell through a skylight and injured himself only to recover thousands of dollars from the owner of the skylight,” and points to this MS Word account of the case of Bodine v. Enterprise High School to debunk the tale. Those dastardly reformers, misrepresenting the facts once again! (Of course, there are several thousand posts on Overlawyered over the last seven years, and not a one before today mentions this case, so it’s hardly central to the reform movement. It doesn’t appear on the ATRA website, either. But why split hairs when there’s a chance to demonize reformers?)

    Except if one actually goes to the document, buried within a lot of rhetoric criticizing reformers for mentioning the Bodine lawsuit, we learn: Ricky Bodine was a 19-year-old high-school graduate who, with three other friends (one of whom had a criminal record), decided the night of March 1, 1982, to steal a floodlight from the roof of the Enterprise High School gymnasium. Ricky climbed the roof, removed the floodlight, lowered it to the ground to his friends, and, as he was walking across the roof (perhaps to steal a second floodlight), he fell through the skylight. Bodine suffered terrible injuries to be sure, though one questions the relevance: if the school is legally responsible for burglars’ safety, it doesn’t matter whether Bodine stubbed a toe or, as actually happened, became a spastic quadriplegic. But I fail to see what it is that reformers are supposedly misrepresenting. A burglar fell through a skylight, and sued the owner of the skylight for his injuries. Bodine sued for $8 million (in 1984 dollars, about $16 million today) and settled for the nuisance sum of $260,000 plus $1200/month for life, about the equivalent of a million dollars in conservatively-estimated 2006 present value.

    In other words, a burglar fell through a skylight, and blamed the skylight’s owners for his injuries; because the law permits such suits, and because the law does not compensate defendants for successful defenses, Bodine had the ability to extort hundreds of thousands of dollars from taxpayers for injuries suffered in the course of his own criminal behavior. Bodine’s only hope of recovery is the law’s rejection of proximate cause as prerequisite to liability. Assemblyman Alister McAlister, the Democratic legislator who used the story to push for reform, described the facts correctly. McAllister didn’t mention that Bodine was 19, but so what? He didn’t mention that Bodine was 6’1″ and a waiter, either, and all three facts are irrelevant. Lilliedoll accuses McAlister of falsely claiming that the legal theory was “failure to warn,” but that’s hardly an inaccurate description of a duty-to-trespassers theory: the alleged duty could have been fulfilled by posting visible warnings to trespassers of the dangers of traversing the roof.

    What remains to be told is whether this case was simply a one-shot with special circumstances, or, as the repeated variational storytelling so clearly implies, did this case become a precedent and as a result have there been countless cases of criminals suing victims? Or has the legal system worked out a standard which disallows such nonsense?

  4. Me
    January 15th, 2008 at 13:52 | #4

    The moral lesson here is, buy tenant insurance.

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