Opinion
Civil No. 02-312-JM, Opinion NO. 2003 DNH 016
January 24, 2003.
ORDER
In a motion which is notable for both its brevity and its precision (it cites the two dispositive precedents and wastes neither ink nor trees) the defendant moves to dismiss Counts II and III of plaintiff's complaint. In plaintiff's response she stipulates to dismissal of Count III but objects as to Count II.
Discussion
Count II, in this diversity case, sets forth a claim under the "attractive nuisance doctrine". The doctrine was rejected in New Hampshire in 1886. Frost v. Eastern R.R., 64 N.H. 220 (1886). Justice Griffith clearly stated the Court's rejection of the attractive nuisance doctrine and clearly set forth the controlling premises liability standard. See Ouellette v. Blanchard, 116 N.H. 552, 555-557 (1976). This standard has been reaffirmed as recently as August 10, 2001. Morse v. Goduti, 146 N.H. 697, 699 (2001). As defendant maintains, Count II, alleging an attractive nuisance, does not state a claim cognizable under New Hampshire law.
The origin of the "attractive nuisance" doctrine is credited to an 1875 Minnesota case involving a seven-year old injured on a revolving railroad turntable. Keffe v. Milwaukee St. Paul Ry., 21 Minn. 207 (1875). As revised by Justice Holmes, the doctrine only applies where a child was attracted to the premises by the very thing which injured her. United Zinc Chemical Co. v. Britt, 258 U.S. 268 (1922).
Plaintiff's counsel should have read the cases cited by defendant and stipulated to dismissal of Count II.
Plaintiff's counsel miscites Restatement (Second) of Torts § 339 ("attractive nuisance") as § 889 ("abatable artificial nuisance"). Section 339 was considered at least twice by the New Hampshire Supreme Court and never adopted. See Ouellette, 116 N.H. at 558 (concurring opinion); Labore v. Davison Construction, 101 N.H. 123, 126 (1957).
For the reasons set out above the motion (document no. 4) is granted.
SO ORDERED.