To unlock a door, there’s a single key––specifically cut, shaped, and contoured to fit an exact specification. All other conjectures and approximations, even if razor-thin close, will simply not work. Exerting additional force, pressing strongly back and forth, forcefully twisting and turning––a complete waste of time. Winning arguments, tailor made to fit the specific case, share the same characteristic. There’s often one, and only one, way to win. The trick is to discover that one winning argument.
On January 20, 1955, plaintiff’s father took plaintiff and his older brother and sister to a large open field for the purpose of flying kites. This field was about one mile from plaintiff’s home. The trip was made by automobile. In the vicinity of this area was a roller coaster which was in disuse. It was a wooden structure; there were no cars thereon and no movable machinery was involved. The structure was surrounded by an open field for one-half a mile to the south, two or three blocks to the west, one block to the north (bounded by Washington Boulevard), and one half a mile to the east. The roller coaster was about 30 feet high. There were no fences or other barricades around either the structure or the vacant field. Plaintiff, who was 2 1/2 years old, strayed away from his father and apparently fell from the roller coaster while playing thereon.
Does the key fit? Before the key can be used to unlock the door, it has to fit. An abandoned roller coaster is allowed to deteriorate near a residential area. It’s not fenced off, and there are no warning signs. The structure is thirty, not three, feet high. Children under the age of three are knowingly allowed unrestricted access. Your first task would be to take a careful inventory: a photographic record of the surrounding area and of the structure itself, including all rotting wood, protruding nails, missing guard rails, loose-fitting joints, slippery surfaces, etc.
Then, you would ask: into what category does this structure fit? It can be characterized as garbage, left over debris. It can be characterized as construction/demolition waste. It can be characterized as a public sculpture. It can be characterized as scaffolding. Then it dawns on you: it also can be characterized as a piece of recreational equipment, a climber.
One initial argument to be made, therefore, would be to assert that playground safety codes should apply to this structure. Why should the owner, by reason of his unilateral decision to abandon, be rewarded with a lower standard of care? If it could be proven the owner knew, or should have known, the roller coaster was still being used by children as a piece of playground equipment, one initial argument to be made would be to assert that all applicable playground safety and engineering code provisions should apply. Merely because the owner did not intend the structure to be used as a piece of playground equipment should not excuse his obligation to comply with all such provisions.
Liability does not attach unless the risk involved is one which, because of his tender years, the trespassing child is incapable of appreciating. In the instant case, there is no claim nor any evidence that this nonoperating roller coaster contained a trap of any sort, was inherently unsafe, or had any loose or moving parts. The sole danger presented was the possibility of injury resulting from a fall from an otherwise safe structure. “The doctrine has been applied in cases where hidden dangers exist which would be outside the experience of young children, including cases involving drowning under certain conditions, access to dynamite or dynamite caps, movable machinery, high tension wires, and boards piled near where children play, in a manner that is inherently unsafe.” (Lopez v. Capitol Co., 141 Cal.App.2d 60, 65 [296 P.2d 63].)
Does the lock respond “with a click” when the key is turned? The key will need to engage the lock, easily not forcefully. If the only defect you allege is excessive height, you will likely not prevail. “The sole danger presented was the possibility of injury resulting from a fall from an otherwise safe structure”––thus, you would need to establish as many unsafe aspects of this structure as possible, in addition to its excessive height. Obscured lines of sight, the absence of guard rails/hand holds, inadequate maintenance, splinters, shards, nails, and other harm-inducing protrusions, no fall-absorbing materials beneath––a recreational product engineer could itemize the many ways in which the remaining structure failed to satisfy even the most basic safety and design engineering standards. Again, you’re now treating this as a piece of playground equipment, not as the left-over remains of a roller coaster. There’s no question you’ll find numerous code violations once you re-conceptualize the case in this manner.
In the instant case, the record is wholly silent as to whether plaintiff actually knew of the danger incident to climbing or playing on elevated structures. If he knew, the attractive nuisance doctrine would clearly be inapplicable; liability only exists if “the children because of their youth do not discover the condition or realize the risk involved. …” (Rest., Torts, 339(c), supra.) A problem may arise where, for one reason or another, the injured child does not testify and there is no other evidence as to his knowledge of the danger involved in climbing and falling. Such is the instant case. As noted in the authorities referred to above, the danger of falling is something that is deemed known and realized by children from an early age. However, when dealing with a child of plaintiff’s tender years, it cannot be stated as a matter of law that he either did or did not have sufficient mental development to fully appreciate the consequences of a fall from a high elevation. “The ability to appreciate danger varies, of course, with the age of the child. …” (Garcia v. Soogian, 52 Cal.2d 107, 112 [338 P.2d 433].) [6b] Under such circumstances, this determination would ordinarily be a question for the trier of fact.
Does the door open? With a single push, does the door open? A child under three could not be questioned which would explain why the “record is wholly silent…” A child psychiatrist or neuropsychiatrist, had one been called, could likely have addressed the issue of whether “sufficient mental development” existed for the child to have fully “appreciate[d] the consequences of a fall.” Indeed, there’s medical literature which establishes how children vary in their abilities of “spatial perception” and thus “object manipulation.”
“In the clinic context, neuropsychological assessment commonly reveals uneven strengths and weaknesses in school-age children. For instance, some children are notably weak in tactile or spatial perception, affecting their potential for independent navigation, object manipulation…”
There’s no question that neuropsychological evidence could have been obtained to establish that a 2 ½ year old child would be utterly incapable of recognizing the serious danger of climbing too high without adequate fall protection.
In the instant case, there is no evidence that the defendants actually knew children had been accustomed to be in or about or upon the roller coaster, if such were the fact. While defendants should have realized that youngsters old enough to be allowed to venture unattended might find their way to the roller coaster, it would be equally reasonable for defendants to assume that children of this age-group would be cognizant of the hazards presented in playing upon the structure…However, as to children who, because of their tender age, would not realize the potential hazard, it seems unreasonable to charge defendants with knowledge that such children were likely to find their way upon the property. In the first place, the nearest residence was at least three blocks away. The roller coaster was surrounded by an open field for one-half a mile to the south and east. While we do not impute the negligence of a parent to the child, it would be entirely reasonable for defendants to believe that children who were so young that they could not understand the danger of falling would not have the opportunity to roam across city streets and travel substantial distances alone.
Will the door stay open? Remember, your opponent will be pushing with force to close the door once it has been opened. If witnesses had been called to testify that children frequented the area unaccompanied by a parent, and would often play on the abandoned roller coaster alone and unsupervised, this could have helped create a more developed record. As always, you’re looking for substantiated layers of proof. Merely assuming a Court will make favorable inferences on your behalf always presents a risk. It’s best to play it close: never rely on a court to infer a necessary element of proof.
By re-conceptualizing the case, you’ve seized the initiative. The battle will be waged on your terms, not the defendant’s. The Court should be reminded that a child of this age would not be old enough to know the difference between a “real” and “imitation” piece of playground equipment––for a child an abandoned roller coaster will serve just fine. But what if the Court rules playground safety codes do not apply? Your fallback position would be to suggest other building/construction/demolition safety codes. As well, if these proved to be inadequate or inapplicable, a human factors engineer could speak to various aspects of the structure which create hidden dangers in the eyes of a child. You’re looking for ways where your theory of liability can be tied––precisely, exactly––to a particular standard. Somewhere there’s that single key. It has to fit. Your job is to find it.
All quotations from Davis vs. John F. Goodrich, 171 Cal.App.2d 92 (Calf. Ct. App. 1959)
 Rutter’s Child and Adolescent Psychiatry, Pg. 614 (2015)(Edited by Anita Thapar, Daniel S. Pine, Stephen Scott, Margaret J. Snowling, Eric A. Taylor)