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Shattering Shortcut

PARENTS OF TWO BOYS who were killed when a landfill slope collapsed on them cannot sue the landfill owner for the children's wrongful death because the boys were trespassers on county land and the dangerous condition of the slope was discovered only after the incident, according to a ruling by the Idaho Supreme Court.

Shaun and Alex O'Guin walked from their home to a summer lunch program at an elementary school, taking a shortcut across a landfill owned by Bingham County. The boys entered the site through a small opening in a fence, which allowed access to an irrigation ditch. Otherwise, the site was entirely enclosed, and “no trespassing” signs were posted. On the way home, the boys took the same shortcut, entering the landfill from school property through an unlocked gate. The boys spotted other children throwing rocks at sloped areas near the working face. After descending into the fill area, they too began throwing rocks at the slope, causing dirt and gravel to come loose. They dallied, despite a warning from their older brother, Frank, that they would get into trouble playing there. Sometime later, Frank returned to the landfill looking for them. He was horrified to find that his brothers had been crushed to death when the slope gave way and collapsed on them.

Frank and Leslie O'Guin sued the county for causing the death of their sons. The trial judge granted the county's motion for summary judgment and dismissed the lawsuit. On appeal, the state supreme court justices upheld that decision by a 4-1 vote.

The lower court was correct in finding that the boys were trespassers, the majority concluded. “The record disclosed nothing from which the court could conclude the boys had permission or in any way were authorized to enter onto the county property,” the opinion stated. Indeed, the opening in the fence was “an … obvious access point” and could suggest an “implied invitation” to enter the property, the court noted. However, “[it] does not alter the boys' status as trespassers.”

Although a landowner has a responsibility to a trespasser to refrain from willful and wanton conduct that creates an unreasonable risk of harm, the majority observed that the parents made no claims based on such conduct.

The parents' claim that the landfill was an “attractive nuisance” was properly dismissed, the majority said. Based on evidence in the record, the boys first entered the county property as a shortcut to school. “We agree with the … court's conclusion that the dangerous condition that caused harm to the boys was only discovered after they had entered the property,” the opinion stated.

The lone dissenting judge faulted the majority for upholding the dismissal of the attractive nuisance claim. He believed that the parents deserved the opportunity to prove that the county knew, among other things, that “children were likely to meddle” with “the structure or condition in the … landfill.”

[O'Guin v. Bingham County, 73 P.3d 849 (Idaho, 2003)]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.