Attractive Nuisance Doctrine in Missouri, The
![handle is hein.journals/molr29 and id is 36 raw text is: THE ATTRACTIVE NUISANCE DOCTRINE
IN MISSOURI
JAMEs K. PREwirr'
As a general rule of law a landowner is not liable for injury to a
trespasser except for wilful or intentional injury.' This article discusses
one of the exceptions to that rule, the Attractive Nuisance Doctrine.2
Generally this doctrine allows recovery if a landowner negligently maintains
in an area in which [or where] children are likely to play a dangerous instru-
ment or agency exposed on his premises, attractive to children and likely
to injure them. It has no application where the child was not a trespasser
but had a right to be on the premises, such as a public street or park.'
Other similar doctrines in the law will not be discussed here and should
be distinguished from attractive nuisance.'
The attractive nuisance doctrine applied in this country seems to
have developed from the early United States Supreme Court case of Rail-
road Co. v. Stout,5 which allowed recovery to a trespassing child injured
*Attorney, Springfield, Mo.; LL.B., University of Missouri, 1959.
1. Paisley v. Liebowits, 347 S.W.2d 178 (Mo. En Bane 1961); Boyer v.
Guidicy, Marble, Terrazzo & Tile Co., 246 S.W.2d 712 (Mo. 1952).
2. For a brief but excellent discussion of the theory and development of this
doctrine in Missouri see McCleary, The Liability of a Possessor of Land in Mis-
souri to Persons Injured While on the Land, 1 Mo. L. REv. 45 at 49-51 (1936).
Attractive Nuisance generally see Annots., 36 A.L.R. 34 (1925); 39 A.L.R. 486
(1925); 45 A.L.R. 982 (1926); 53 A.L.R. 1344 (1928); 60 A.L.R. 1444 (1929).
3. Baker v. Prayer & Sons, Inc., 361 S.W.2d 667 (Mo. 1962); Dutton v.
City of Independence, 227 Mo. App. 275, 50 S.W.2d 161 (K.C. Ct. App. 1932);
Capp v. City of St. Louis, 251 Mo. 345, 158 S.W. 616 (1913).
4. One such theory is liability for the negligent handling of dangerous ex-
plosives; a theory extending to trespassers, however on the premises, especially
children. Paisley v. Liebowits, supra note 1. Boyer v. Guidicy, Marble, Terrazzo &
Tile Co., supra note 1. This is not an extension of the attractive nuisance doctrine,
but is independent of it although involving some of the same basic considerations.
Also separate but similar in some respects is the so-called hard-by-the-way rule
which may hold a landowner liable for bodily harm caused to young children by
an excavation or dangerous artificial condition along a public way or so close that
it involves an unreasonable risk to them because of their tendency to deviate
along the way. Baker v. Prayer & Sons, Inc., supra note 3; Winegardner v. City of
St. Louis, 346 S.W.2d 219 (Mo. 1961); Wells v. Henry W. Kuhs Realty Co., 269
S.W.2d 761 (Mo. 1954), 20 Mo. L. REv. 101 (1955).
5. 84 U.S. (17 Wall.) 657 (1873). See Berry v. St. Louis M. & S.E.R. Co.,
214 Mo. 593, 114 S.W. 27 (1908). R.R.Co. v. Stout relied on Lynch v. Nurdin,
[18413 1 Q.B. 29, 113 Eng. Rep. 1041, where defendant left a horse and wagon in
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