## Facts

- H. F. Banker owned and developed a 60-acre residential tract known as Forest Park Subdivision near Orange, Texas, where about 50 families lived, many with small children.
- To grade streets, Banker had a large excavation dug in a wooded area; it later filled with water, forming a deep pit (about five to eight feet in places) that had existed for roughly eight or nine months.
- Banker took no precautions to keep children away from the pit: no fence, guards, or warning signs, and he did not fill it despite having no further use for it.
- On June 19, 1945, James McLaughlin’s son (age five years and ten months) entered the pit and drowned.
- McLaughlin sued for wrongful death, alleging the water-filled pit was especially attractive and dangerous to children and that Banker negligently failed to warn or protect against the danger.
- Banker denied liability and asserted defenses including that the child was a trespasser, the condition posed no hidden danger, the child and father were negligent, and the death was an accident.
- A jury found for McLaughlin; the trial court entered judgment for $15,200. The court of civil appeals required a $9,000 remittitur and affirmed the reduced $6,000 judgment.

## Issues

1. Whether a landowner may be liable under the attractive nuisance doctrine for the death of a young child trespasser who drowns in an artificial, water-filled excavation on the land.
2. Whether the landowner’s duty turns on reasonable anticipation of children’s presence and the feasibility of eliminating or guarding the danger.
3. Whether the reduced damages judgment, after remittitur, should be affirmed.

## Decision

- The Supreme Court of Texas affirmed the court of civil appeals’ judgment (liability affirmed; damages affirmed as reduced).
- The court held that Banker could be found negligent for maintaining an unfenced, unguarded, water-filled excavation in a residential subdivision where children’s presence was reasonably foreseeable.
- The court concluded the attractive nuisance doctrine applied because the condition was dangerous to a child of tender years who could not appreciate the risk and the danger could have been easily eliminated or addressed with simple precautions.
- A dissent would have applied the traditional limited-duty rule to child trespassers more strictly in cases involving water hazards.

## Legal Principles

- As a general rule, a landowner owes no duty to make premises safe for trespassers, but liability may arise where the owner impliedly invites entry or where an attractive nuisance creates a foreseeable risk to children.
- Whether a premises condition is “dangerous” depends on whether the presence of members of the public (including children) may be reasonably anticipated, not merely on proximity to a roadway or path.
- Under the attractive nuisance doctrine, maintaining a dangerous condition that is likely to draw children, left exposed without adequate warnings or protective measures, can constitute negligence when the risk is foreseeable.
- The “attraction” element primarily relates to foreseeability (anticipating child trespass), and the doctrine should be applied cautiously and based on the particular facts.
- Key factors supporting liability include the child’s tender years and inability to appreciate the danger, the landowner’s knowledge or constructive knowledge of the condition and risk, and the ease or low cost of eliminating or safeguarding the hazard.

## Conclusion

The Texas Supreme Court affirmed a reduced wrongful-death judgment, holding that a developer could be liable under the attractive nuisance doctrine for a young child’s drowning in an artificial, water-filled excavation left unfenced and unmarked in a subdivision where children’s presence was reasonably foreseeable and the danger could have been readily remedied.


Banker v. McLaughlin, 208 S.W.2d 843 (Tex. 1948)