## Facts

- A private social club operated a members-only swimming pool.
- A nine-year-old member-user swam to the bottom (about seven feet), lifted a metal drain cover, inserted a tennis ball into the drain pipe, and replaced the cover.
- The ball traveled into the drainage system, interfered with proper drainage, and forced closure of the pool for repairs.
- The club sued the child for repair costs, pleading trespass (an intentional tort), not negligence.
- The club sought a directed verdict on liability, arguing the child’s admissions established trespass regardless of age.
- The child argued (i) age was relevant to intent, and (ii) lifeguards had observed similar conduct and failed to stop it, supporting implied consent and showing the conduct was within the scope of the club’s invitation.
- The trial court denied a directed verdict and instructed the jury in a manner that combined trespass status, implied consent, and the child’s age/intent.
- The jury found for the child; the club appealed.

## Issues

1. In trespass to property, whether a nine-year-old’s capacity to intend the physical acts should be submitted to the jury when the acts were deliberate and undisputed.
2. Whether the club’s toleration of similar conduct could constitute implied consent or an expanded scope of invitation, making the child not a trespasser.
3. Whether jury instructions that merged intent/age with consent improperly confused distinct issues requiring reversal.

## Decision

- The appellate court reversed and remanded for a new trial.
- The court held the child’s intent to perform the physical acts (lifting the cover and inserting the ball) was established as a matter of law and should not have gone to the jury.
- The court held implied consent/scope of invitation was a factual question properly for the jury.
- The court ordered a new trial limited to the consent/invitation issue because the instructions wrongly blended consent with age-based intent considerations.

## Legal Principles

- A child may be liable for intentional torts, including trespass, if the child is capable of intending the physical act that constitutes the invasion.
- For trespass, the required intent is intent to do the act that results in the intrusion or interference; intent to cause harm is not required.
- Consent (including implied consent) and scope of invitation are distinct from intent and may defeat trespass liability when the defendant’s conduct falls within permitted activity.
- A court errs by instructing in a way that obscures whether a defense verdict rests on implied consent versus an incorrect view that a child cannot intend deliberate physical acts.

## Conclusion

The court ruled that the child’s deliberate conduct satisfied trespass intent as a matter of law, but that liability still depended on whether the club impliedly consented to such conduct or permitted it within the scope of invitation; because the jury instructions conflated these questions, the case was reversed and remanded for a new trial focused on consent.


Cleveland Park Club v. Perry, 165 A.2d 485 (D.C. 1960)