From No Skating
"Don't go down to that pond -- it's dangerous!" Stephanie Butler angrily shouted at her children. She'd overheard them talking about playing near the water on the golf course close to their apartment. It was a Saturday, and 8-year-old Jeremiah Butler was heading outside with his 11-year-old sister, Tiara, and their 13-year-old cousin, Evon McDuffie. They often went to the George Wilson Community Center in Newark, Delaware, just three houses away from their apartment building.
The Wilson center was a hub of activity for the community, especially in warm weather. But January 20, 2001, was a drizzly day with gusty winds. Rain mixed with snow, and the temperature hovered just above freezing -- a good day to play inside the center. Unfortunately, the three children had other ideas.Ignoring what Butler had said, Evon, Tiara and Jeremiah walked beyond the tree line at the back of the community center property and headed toward the large pond on the grounds of the adjacent Newark Country Club. The kids slid through a gap in the split-rail fence, then passed a No Trespassing sign posted on a metal gate nearby. As they approached the pond, they also walked by a No Skating sign.
The ponds and streams sprinkled throughout the country club's 18-hole golf course served as traps for the players. But the larger, man-made pond close to the community center had been expanded the previous year. It was eight feet deep, and took in a continuous flow of water from the nearby Bogey Run stream and returned excess water back to it through a large pipe. Other pipes connected the pond to the water traps on the golf course.
Tiara and Evon first stomped on the surface ice, and when it held, the children went out on the pond. Tiara remembers Evon yelling out to Jeremiah, "I bet you can't cross the whole thing."
"I bet you I can," Jeremiah replied, and he took off across the pond.
He made it to the other side, but as he came back, Jeremiah stepped on the thinner ice that covered the inflow from Bogey Run. The fragile frozen surface collapsed under his feet, and the boy sank into the frigid water. Evon raced back to the apartment for help, while a panicked Tiara tried to reach Jeremiah as he struggled to keep his head above water. But he kept slipping beneath the surface.
When firefighters and paramedics arrived, all they could see was Jeremiah's partially submerged coat. By the time one of the rescuers secured himself to a rope and jumped in to get Jeremiah, more than 30 minutes had passed. As the unconscious child was rushed to the hospital, paramedics frantically worked to resuscitate him. His life was saved, for now, but the effects of hypothermia and lack of oxygen left Jeremiah with severe brain damage. Confined to a wheelchair, he needed a tracheostomy tube to breathe, and suffered from seizures. Fourteen months after the accident, Jeremiah died from his injuries.
The Lawsuit
Butler brought a wrongful-death action against the Newark Country Club, claiming the facility was negligent when it failed to childproof the pond after the expansion project in 2000. Butler admitted that Jeremiah had been trespassing, but she argued that children are owed a higher standard of care by landowners even if they are trespassers. She also contended that the club was liable because the pond was an "attractive nuisance" -- a legal way of saying the pond was both artificial and alluring to children who might not realize it was dangerous.Butler maintained that Jeremiah's injuries were caused by his attraction to the golf course pond. Unlike a natural pond, this one had water pumping near the spillway pipe, and the flow had thinned the ice. Jeremiah could not have understood that danger, yet the country club had to know that he and other children might find the pond irresistible.
Newark Country Club employee David Cox even testified that he'd told various children to leave many times. The split-rail fence and signs were not enough to keep the kids away. After the accident, Tiara and Evon said they didn't know what trespasser meant. The club, Butler argued, had a duty to safeguard the pond it had created from children too young to recognize its perils.
But the Newark Country Club argued that it didn't have to protect children from all types of danger. It was responsible only for artificial conditions, like a large unguarded piece of machinery that young children wouldn't realize might harm them. The club contended that, though it had created the pond, the children were attracted to its natural properties, like the ice they skated on -- and that the children were old enough to realize the dangers of ice-covered ponds. The club did put up No Skating signs, and the kids knew what that meant. Besides, Jeremiah's mother had even warned the children to stay away. The country club called Jeremiah's death a tragic accident but denied any responsibility for it.
Should the Newark Country Club be held liable for Jeremiah's death?
You Be the Judge.
The Verdict
The Supreme Court of Delaware upheld a superior court ruling finding that the Newark Country Club was not liable for Jeremiah's death. The court reasoned that, although the club had built the pond, it could not be distinguished from a natural body of water and was therefore not considered "artificial" for the purposes of the attractive nuisance rule.The pond, the court wrote, "was fed from a natural stream through a drainage pipe. An ice-covered pond and the risk posed by thin ice are some of the many ordinary dangers and conditions that children can reasonably be expected to discover and appreciate." The flow of water in the pipe and its effect on the ice above, the court reasoned, was no different from naturally moving water under an ice-covered pond. Jeremiah chose to risk walking on an icy pond even though his mother had warned him not to and he understood the danger of icy water. For these reasons, the pond was not an attractive nuisance as a matter of law, and the Newark Country Club was not liable for Jeremiah's injuries and death.