In the United States, the US Supreme Court established the Turntable Doctrine, in R.R. Co. v. Stout, 84 U.S. 657. As I understand it, In general, if a person is injured while trespassing on someone’s property then, unless the injury is due to some specific fault of the landowner, the landowner isn’t liable. After all, if someone trespasses on your property, you shouldn’t be liable for poor judgment exercised by the trespasser, especially since he shouldn’t have been trespassing in the first place. But Stout created an exception to this, initially termed the “turntable doctrine” (named after the piece of railroad machinery that that the child Stout was playing on when injured). The idea was that young children are a special case requiring a higher duty of care.

Stout was cited soon after in a similar turntable case, Keffe v. Milwaukee & St. Paul Railroad Co., 21 Minn. 207 (1875). The term “attractive nuisance doctrine” originated in Keffe, which explained the attractiveness concept thus:

To treat the plaintiff as a voluntary trespasser is to ignore the averments of the complaint, that the turn-table, which was situate[d] in a public (by which we understand an open, frequented) place, was, when left unfastened, very attractive, and, when put in motion by them, was dangerous to young children, by whom it could be easily put in motion, and many of whom were in the habit of going upon it to play. The turn-table, being thus attractive, presented to the natural instincts of young children a strong temptation; and such children, following, as they must be expected to follow, those natural instincts, were thus allured into a danger whose nature and extent they, being without judgment or discretion, could neither apprehend nor appreciate, and against which they could not protect themselves. The difference between the plaintiff's position and that of a voluntary trespasser, capable of using care, consists in this, that the plaintiff was induced to come upon the defendant's turn-table by the defendant's own conduct, and that, as to him, the turntable was a hidden danger, a trap.

Twenty years later, the New York Court of Appeals discussed the turntable doctrine in Walsh v. F.R.R. Co., 39 N.E. 1068 (NY 1895) and said Stout didn't apply in that case. Maybe I'm reading Walsh wrong, but it seems to me to be saying that Stout might apply in some cases, but it doesn't in that specific case.

But then Morse v. Buffalo Tank Corp., 19 N.E.2d 981, 280 N.Y. comes along in 1939 and says

The general rule which has prevailed since the well-known turntable case (Walsh v. Fitchburg R.R. Co., 145 N.Y. 301) is that the so-called doctrine of attractive nuisance does not apply in New York, and that the only duty which an owner of land owes to a trespasser or bare licensee is to abstain from affirmative acts of negligence or not to injure intentionally such person.

And from there to the present, supposedly New York doesn't follow the Attractive Nuisance Doctrine.

How can Morse make that flying leap, from Stout not being applicable in the particular case (Morse), to saying that "the so-called doctrine of attractive nuisance does not apply in New York"?

(Reason for question: I am taking a paralegal class and one of the exercises asks the student to determine whether the attractive nuisance doctrine holds in the state where the student lives.)

This question is different. I made the mistake of writing two questions in one post, only one of which was answered. I have split them up into two separate questions. I copied the background material from one to the other so people wouldn't need to click over to the other question to understand this one.


1 Answer 1


Maybe I'm reading Walsh wrong, but it seems to me to be saying that Stout might apply in some cases, but it doesn't in that specific case.

I think you are indeed reading it wrong. In the Walsh case, the court says:

We have not had occasion to decide the question up to this time, but now that it is presented, we not only reiterate the doubt which we expressed in the McAlpin case (supra), but we think that the question of the defendant's negligence was erroneously submitted to the jury in the Stout case, and that we ought not to follow it as a precedent.

It's clearly repudiating Stout here, and not just as it applies to that case. It literally says they think it should not be followed as precedent.

  • 2
    And is therefore a new precedent of its own
    – Dale M
    Dec 3, 2017 at 9:46
  • @DaleM and D M, thank you. I see what you mean. // In Walsh, the argument for setting the precedent seems totally subjective. That feels weird to me. What do you think about that? Should I write a separate question? Dec 3, 2017 at 15:11
  • 3
    Yeah, it's subjective to some degree, especially since some courts decided it the other way. If there's no black-letter law, the courts have to make a ruling one way or the other. Cases from other courts can often be persuasive, but they aren't binding.
    – D M
    Dec 3, 2017 at 15:17
  • 2
    @DM unless they are from a superior court in the same appellate chain. However, precedent can be avoided by distinguishing the facts of this case from the facts of the precedent. At least that’s what one side argues; the other side argues “t’snt”
    – Dale M
    Dec 3, 2017 at 15:58

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