off, were deemed to be an attractive nuisance. Several boys entered the yard and one of them climbed on a discarded car, which was in a pile of junk. The car tilted and threw him against broken glass. The property owner was held liable for damages for the child's injury. The Court relied on Sioux City & Pacific Railroad Company v. Stout, and Best v. District of Columbia, supra.
The doctrine of attractive nuisance is, however, in those jurisdictions in which it prevails, universally restricted and circumscribed by well defined and well established limitations. The liability of the property owner for injuries caused to a child by what may be deemed to be an attractive nuisance, is confined to cases in which the property owner either erects or maintains the dangerous structure, or places on the property the object that is dangerous and constitutes the attractive nuisance, or, at most, if a third party is responsible for the nuisance coming into existence, to situations in which the property owner is actually aware of its presence and does nothing either to eradicate it, or to protect children against it. Carter Coal Co. v. Smith, 173 Ky. 843, 191 S.W. 631; Ball v. Middlesboro Town & Lands Co., Ky., 68 S.W. 6; Simmel v. New Jersey Coop. Co., 28 N.J. 1, 143 A.2d 521, 526; Travell v. Bannerman, 174 N.Y. 47, 66 N.E. 583; Gallagher v. Frederick, 366 Pa. 450, 77 A.2d 427; Cooper v. City of Reading, 392 Pa. 452, 140 A.2d 792, 795.
This principle was summarized as follows in Gallagher v. Frederick, supra, 77 A.2d p. 429.
'The artificial condition on an owner's land on account of which he may be liable for injury to trespassing young children is such as he creates or maintains. That, of course, does not necessarily mean that an owner may not be said to maintain such a condition on his land which another has created but which the owner allows to exist.' (Emphasis original.)
Similarly, a property owner is under no duty to inspect his property periodically for the purpose of searching out and discovering whether an attractive nuisance has been created on his premises by some third person, Carter Coal Co. v. Smith, 173 Ky. 843, 191 S.W. 631; Simmel v. New Jersey Coop. Co., 28 N.J. 1, 143 A.2d 521, 526; Gallagher v. Frederick, 366 Pa. 450, 77 A.2d 427; and Cooper v. City of Reading, 392 Pa. 452, 140 A.2d 792, 795.
Thus, in Simmel v. New Jersey Coop. Co., supra, it was stated (143 A.2d p. 526):
'It should be recognized, however, that the land owner or occupier is not an insurer of the infant. He has no duty to periodically inspect the premises in order to ascertain whether third persons, themselves trespassers, might have created dangerous artificial conditions thereon.'
Counsel for the plaintiffs cite no cases, and independent research has discovered none, in which the owner of real property has been held liable for injuries caused by an attractive nuisance that had been created on his premises by a third person and of which the owner had not been aware.
The foregoing principles with the limitations surrounding them, have been recognized and formulated by Restatement of the Law, Torts, Sec. 342, as follows:
' § 342. Dangerous Conditions Known to Possessor.
'A possessor of land is subject to liability for bodily harm caused to gratuitous licensees by a natural or artificial condition thereon if, but only if, he
'(a) Knows of the condition and realizes that it involves an unreasonable risk to them and has reason to believe that they will not discover the condition or realize the risk, and
'(b) invites or permits them to enter or remain upon the land, without exercising reasonable care
'(i) to make the condition reasonably safe, or
'(ii) to warn them of the condition and the risk involved therein.' (Emphasis supplied.)
Comment c. of Section 342, of the Restatement, states:
'c. Inspection. A possessor of land owes to a gratuitous licensee no duty to prepare a safe place for the licensee's reception or to inspect the land to discover possible or even probable dangers.'
Counsel for the plaintiffs stress the decision of the Court of Civil Appeals of Texas, in Dezendorf Marble Co. v. Gartman (Texas) 333 S.W.2d 404, which has a superficial similarity to the instant case. In both cases, a child picked up on the defendant's grounds a container comprising an explosive, took it home and was injured when it exploded. It also appeared that children had been accustomed to come to play on the defendant's land. There the resemblance ends. The distinction between that case and the case at bar lies in the very vital circumstance that in the Dezendorf case the blasting cap that injured the child, belonged to the defendant and had been thrown on the ground by the defendant's employees. The defendant had been quarrying rocks on the property and the blasting caps were used in these explosions. If in the instant case the defendant had been using explosives on his property and the flare had been left lying around by one of his employees, the Dezendorf case might be applicable. As it is, however, no support can be found in it for the plaintiffs' position.
The principles to be evolved from the line of authorities discussed in this opinion, may be summarized as follows. If the owner or possessor of real property maintains a hazardous structure, or keeps a dangerous object, on his land, which has a natural tendency to attract or allure children, and if children are accustomed to visit or congregate on the grounds, then the property owner is liable for any injury that may be sustained by a child as a result of contact with the structure or object. This liability extends to a situation in which the dangerous object was placed on the property by a third person if the property owner had actual knowledge of its presence. On the other hand, there is no liability on the part of the owner if a third party creates the dangerous situation and its existence is unknown to the property owner. The latter is under no obligation to make periodic inspections in order to ascertain whether any hazard has been created by any third person and to safeguard against any such remote possibility.
Applying the foregoing principles to the admitted facts of this case, no basis for liability is discernible. No legal or moral obligation can be perceived on the part of the defendants to pay the plaintiffs for the result of their tragedy.
The defendants' motion for summary judgment is granted.