Gerchberg v. Loney

576 P.2d 593 (1978)

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Nature of the Case

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Facts

P, a five-year-old boy, received burn injuries while playing on the premises of D's yard. D used a barrel as an incinerator. On the day in issue, D instructed their son, Rodney, to burn papers. Rodney, who was ten-years-old, started a fire and placed the papers next to the barrel. P was tagging along with Rodney and watching the events. They left the property together and the barrel was still burning. The fire had not been extinguished and was still smoldering when P returned to the barrel. He began putting the papers into the barrel. The fire blazed and his clothing caught on fire. Serious injuries resulted. P sued D. The court directed a verdict for D. P appealed. P urged the Court of Appeals to discard the traditional classification of trespassers, licensees, and invitees, and to abolish the distinctions in our law as to the duty of care owed to each class. In place thereof, he urged the court to adopt one duty of care owed to all who are on the premises of another, i.e., a duty of reasonable care under all facts and circumstances of the case. The Court of Appeals declined to do so. It determined that the evidence of P made a submissible case on the theory of attractive nuisance. D sought review on the attractive nuisance question.