Mertle v. Smalls

Re: The Sandlot (1993), Bridge to Terabithia (2007)/Premises Liability, Attractive Nuisance

Sources:

CA Civil Code §§ 846, 1714, 3342-3342.5.

Adams v. Bullock, 125 N.E. 93 (N.Y. 1919).

Dennis v. Odend'Hal-Monks Corp., 182 Va. 77 (1943).

Haywood v. South Hill Co., 142 Va. 761 (1925).

Martinez v. Bank of Am. Nat’l Trust & Sav. Ass’n, 82 Cal. App. 4th 883 (Cal. App. 2000).

McDaniel v. Sunset Manor Co., 220 Cal.App.3d 1 (Cal. App. 1990).

Ornelas v. Randolph, 4 Cal. 4th 1095 (1993).

Palsgraf v. Long Island R. Co., 248 N.Y. 339 (N.Y. 1928).

Radoff v. Hunter, 158 Cal.App.2d 770 (Cal. App. 1958), concur.

Rowland v. Christian, 69 Cal. 2d 108 (1968).

Valladares v. Stone, 218 Cal. App. 3d 362 (Cal. App. 1990). 

Written, Researched, and Recorded by Céleste Young, 2023-2025.
Music: Out On My Skateboard - Mini Vandals

Waitisthatlegal@gmail.com

Transcript

            “You’re killing me, Smalls,” is a sentiment that I can definitely identify with as an adult watching the Sandlot.  The kids of the Sandlot manage to get themselves into a lot of trouble and ultimately cause serious property damage to both Mr. Mertle and to Bill, Smalls’ stepfather.  However, it is a great excuse to discuss some torts as they relate to the actions of children, specifically: trespass to land and premises liability.  And in contrast to the California laws, Bridge to Terabithia presents the issue of premises liability and the doctrine of attractive nuisance within the state of Virginia.  There is huge spoiler ahead for the ending of Bridge to Terabithia, both the book and movie, this is your warning.

            The Sandlot came out in 1993 and is set in the San Fernando Valley in California in the summer of 1962.  Bridge to Terabithia by Katherine Paterson was first published in 1977; its movie adaptation was released in 2007.  The book and movie are set in rural Virginia, but they are set in different time periods.  Notably the TV assignment is different for both.  In the book, the class is told to watch a TV special on Jacques Cousteau, where in the movie it is a special on Dr. Bob Ballard.  Also in the film, the teacher lists a rule against downloading homework assignments.  These differences suggest that both the novel and the movie are set around the time they were published and filmed, respectively.

            The importance of the two settings is that Virginia and California have different laws for premises liability.  Premises liability is a category of tort law that outlines the duty of care owed by a property owner to someone on their property.  Any time that someone owes a duty of care or there is a standard of care, it is usually in the context of negligence.  Negligence is defined as the failure to exercise reasonable care that results in damage or injury to another.  For a defendant to be liable for negligence there must be a duty owed to a foreseeable plaintiff, the defendant must fail to meet the duty of care, the breach must have caused the plaintiff’s injury, and, of course, the plaintiff must have actually been harmed and is asking for damages.  The general rule for whether a duty is owed is to ask what a reasonable person in like circumstances would have done.  The Palsgraf test is used to determine foreseeability, which is whether the plaintiff is in the zone of danger.  If a defendant fails to meet the standard of care to a foreseeable plaintiff, then they have breached their duty.  I’m not going to go further into negligence because the issues in this episode really only deal with whether a duty is owed to children trespassing on someone’s land.  I imagine there will be other opportunities in future episodes to talk more about negligence.

            Premises liability helps to determine the standard of care for negligence claims brought by plaintiffs injured on the defendant’s property.  In common law, the classification of the person who was injured determined the duty owed to them.  There are three classes of people: invitees, licensees, and trespassors.  Invitees are people who are invited to the property for a business reason, like a customer visiting a store or a service person hired to do a job on the premises.  Invitees are owed the highest standard of care; for them owners have a duty to warn of known or knowable dangers and have to take precautions to make the property reasonably safe.  The duty to warn of knowable dangers means that there is a duty to inspect the premises for potential dangers.  Licensees are social guests, maybe invited to the property because you Like them, see what I did there Licensees are people you Like.  For Licensees owners only have a duty to warn of known and non-obvious dangers.  Finally, there are trespassors.  Trespassors are people who are not given permission to be on the property, but they are not always someone who is committing the crime or civil offense of trespassing.  They are generally only protected from intentional harm from the owner.  However, if the owner of the premises knows that people frequently enter their property uninvited they have a duty to warn of non-obvious dangers, usually a sign is enough.  If the known trespassers are children then they have a duty of reasonable care.  So, to clarify here’s an example:

            You have a deck in your yard that is made of wood and about one floor up from the ground.  One of the posts in the railing is loose.  If you list the house on AirBnB, then you have a duty to fix the railing so it is safe.  If you don’t know if the railing is loose, but it is fairly old, then you have a duty to inspect it to see if it is structurally sound.  If you invite some friends and family over for a barbeque, you need to warn your guests about the loose railing, either by expressly telling each individual guest about it as they arrive, or by blocking off in some way so no one uses it.  You don’t have a duty to check the integrity of the railing if you have no reason to think it might be loose.  If someone is in your yard uninvited and comes onto your deck, you do not have a duty to warn them of the danger.  If people regularly hang out on your deck without your permission and you know they do this, then you probably need to put up a sign or a rope to keep people away from the loose railing.  If these uninvited guests are children, you might need to fix or replace the railing, or at the very least put some kind of barrier up to restrict their access to your deck.

            Virginia still follows the common law principles for premises liability.  California does not.  Until the 1968 decision in Rowland v. Christian, California courts recognized the common law class distinctions despite the State having a statute that only recognized a single standard of care.  The Rowland court rejected the common law classifications stating: [quote] “A man's life or limb does not become less worthy of protection by the law nor a loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without a business purpose. Reasonable people do not ordinarily vary their conduct depending upon such matters, and to focus upon the status of the injured party as a trespasser, licensee, or invitee in order to determine the question whether the landowner has a duty of care, is contrary to our modern social mores and humanitarian values.” [end quote] In California the owner of the premises owes a general duty of ordinary care to anyone on the premises, even trespassers.  To determine if the owner has met this standard, the Court created a balancing test with the following factors: 1) foreseeability of the harm; 2) the degree of certainty that the person was harmed; 3) the connection between the owner’s conduct and the harm; 4) the moral blame attached to the owner’s conduct; 5) policy considerations for preventing future harm; 6) the burden that is placed on the owner and the community by imposing a duty of care; and 7) the availability of insurance.  

            Despite being called a balancing test, the Court puts a lot more weight on the foreseeability factor.  Which makes sense; if the harm isn’t foreseeable then the owner has likely not failed to meet the standard of care.  This is where the Palsgraf test comes in.  Palsgraf v. Long Island R. Co. was a case decided in 1928 with the opinion written by future Supreme Court Justice Benjamin Cardozo.  The case involved a woman who is injured on a train platform when a passenger’s package is dropped on the train tracks while the railroad employees are trying to help him on to the moving train.  The package contained fireworks that exploded when they hit the tracks.  The explosion caused some scales on the other side of the platform to fall and Palsgraf was hit by those scales.  Cardozo discussed the various scenarios where the exploding fireworks might have foreseeably caused the plaintiff’s injury, but he concluded that the injury from the falling scales was not one of them.  The train employees had no way of knowing that the package wrapped in newspapers contained fireworks and the plaintiff was far away from actual incident, so Cardozo contends that the railway company could not have owed the plaintiff a duty of care with regard to the unexpected explosion.  This case became the basis for the “zone of danger” test to determine a foreseeable plaintiff.

            Of course the inevitable question here is what is considered foreseeable when children are involved.  And let me tell you, after reading some of these cases it seems like almost anything can happen with kids involved, because if there is a way to get hurt, they will find it.  A great example of the foreseeability of harm towards children appears in one of my favourite law school cases, Adams v. Bullock.  Adams is a New York case from 1919 and again the opinion is written by Justice Cardozo.  In Adams, a 12-year-old boy was badly burned when he was electrocuted from making contact with a trolley wire.  The case involved a pedestrian bridge that went over some trolley tracks.  The trolley was powered by overhead electrical cables that were a standard and safe distance off the ground, but the boy was injured on the bridge above the wires.  However, the railing on the bridge was solid and 18 inches wide and from there it was another 4 feet 8 inches down to the wire.  So how exactly did this child get electrocuted you ask, well in typical 12-year-old boy fashion he had found an 8 foot long piece of wire and was swinging it around as he crossed the bridge.  While swinging the wire around it made contact with the trolley wires and he was shocked.  Cardozo remarks in regard to the placement of the trolley wires, [quote] “Only some extraordinary casualty, not fairly within the area of normal prevision, could make it a thing of danger.” [end quote]  He concluded that the trolley company had exercised reasonable care in keeping the wires out of reach and it was only the unforeseeable actions of a boy swinging an 8 foot piece of wire that caused his harm.  The trolley company was not found liable.

            There is a whole doctrine within torts that deals with this exact issue and it is the same in California and Virginia.  The attractive nuisance doctrine holds landowners liable for harm to trespassing children when there is a condition on the land that would likely appeal to children.  This has applied to conditions as seemingly obvious as swimming pools and trampolines, to less obvious conditions like unused farm equipment and explosives.  It is because children lack the capacity to appreciate risks and to avoid danger that the Courts impose a higher duty of care on landowners.  In Virginia, this standard is much higher because the common law standard for trespassors is only to not intentionally cause harm.  Post-Rowland California law imposes a duty of ordinary care towards all people on the premises, but the Rowland factors take into consideration a possibility of needing a slightly higher standard when dealing with children.  To decide whether this higher standard should be applied, one California court suggested, [quote] "The determination of the scope of foreseeable perils to children must take into consideration the known propensity of children to intermeddle." [end quote]  Which is my absolute favourite legal thing to say, “propensity of children to intermeddle.”  This higher standard exists because where a sign would be enough notice for an adult trespasser to realize they are on someone’s land and that they are assuming the risk of potential injury, children either can’t read signs, or can’t understand what potential dangers may lay ahead.

            Seriously though, the case history for this doctrine is a dark look into the evolution of safety standards and protections for kids.  Starting with the very first American cases in the 1870s, involving children horrifically maimed on railroad turn tables where the equipment was left unlocked and able to be freely spun and there was no fence between the residential backyards and the train yard.

            To highlight the trail of carnage, here is a run-down of some of the attractive nuisance cases in Virginia.  A 1943 case, Dennis v. Odend’Hal Monks Corp., involved a 3-year-old child who suffered chemical burns after drinking acid that the defendant was keeping in a pop bottle in his truck.  The Court found it was not foreseeable to the defendant that a toddler would climb into his truck and drink from a random bottle.  In this case the court cited an older case, decided in 1925, Haywood v. South Hill Co., and the phrasing the judge uses is too good, so I’m just going to read from the Dennis decision. 

            [quote] The element of fact upon which the first case hinged was an electric current which was contained is what is known as a transformer, which was very near the sidewalk of a street along which children frequently passed and which was only enclosed by ordinary fencing wire. The current carried by the electrified part of the transformer was of 11,000 volts. Of course it was deadly. A lad of evidently a mischievour nature passing by thrust a saw, which he had, through the openings of the wires of the enclosure making contact with the electrified part of the transformer. There was a sign warning persons of the danger and the thing was an attractive object to a boy of a curious turn of mind. The defendant was held liable, the court stressing the fact that it was a highly dangerous instrumentality, maintained near the street, and that reasonable care was required to protect those passing by. [end quote]

So in Virginia it is foreseeable that a young boy would find a creative way to get electrocuted, but in New York it was not.  The other 2 cases discussed in the Dennis case involved dynamite caps, which are apparently shiny and brightly coloured.  In both cases, these caps were left out and some kids found them and played with them causing them to explode.  This was seen as being a completely logical series of events when children of “tender years” are involved.  But 3 year-olds can’t read labels and despite the truck being parked next to a pile of sand that was popular with the neighbourhood children, it was still unforeseeable that a toddler would drink the defendant’s acid.  Age seems to be the important factor here.  I just want to know who was supposed to be watching this kid…

            Bridge to Terabithia tells the story of an 11-year-old boy from rural Virginia named Jess.  He becomes friends with his neighbor, a girl named Leslie, and the two of them create a fantasy world called Terabithia.  Terabithia exists in the woods on an adjacent property.  It is never expressly stated whether the land belongs to someone or is actually abandoned, but when they first play in the woods Jess does express concern that someone owns the land and they should leave.  In order to enter the magical kingdom, Jess and Leslie have to swing across a dry creek bed using an old rope swing.  Jess again expresses some concern over the state of the rope, but Leslie shrugs him off.  In the movie there is also an old treehouse that has been left abandoned in the woods, and the two play on it as well.  Near the end of the story there is a day that Jess leaves Leslie to go to Terabithia alone and that is the day the rope breaks causing Leslie to fall into the creek bed and hit her head on a rock.  In the movie, the fall itself kills her.  In the book, it had been raining for a while before Leslie falls so the dry creek bed is now a water-filled creek and Leslie hits her head and then drowns in the water.  Legally, this distinction doesn’t really matter; it would only matter for Jess’s level of survivor’s guilt because if she falls and dies from the head injury there is not much Jess could have done were he there.  But with the book, Leslie drowns because she is knocked unconscious, so naturally Jess feels guilty because if he had been there maybe he could have saved her.  Regardless, Jess then honors Leslie’s memory by building a bridge over the creek so it can be safely crossed in the future by him and his little sister.

            The question here is if the landowner is liable for Leslie’s death.  Someone owns that land, either there is a private owner that does not care about children playing in the woods, or it is owned by a bank or other company in a foreclosure or trust situation, or it is public land owned by a government entity; someone owns it.  Who owns it is unimportant because they would all be equally liable for Leslie’s death.  Under Virginia law, a property owner does not owe a duty of care towards trespassors, so long as they do not intentionally harm them.  However, an exception exists for children because of their immaturity which makes them less able to assess risk and appreciate danger.  The property in question contains an old rope swing over a decent sized creek bed (big enough that it needs a bridge to cross) and in the movie an old treehouse.  These are conditions on the land that would definitely attract children and it would be foreseeable that they would swing on the rope and play in the treehouse.  This is even more foreseeable because the children in question are 11 year-olds and unlike some of the Virginia cases involving similarly aged children getting hurt by dynamite caps and transformers, the rope and treehouse are actually things children play on normally.  Any landowner should have recognized that having those things on his land and knowing that there are children living in the area it was more than likely they would play on them.  The property owner should also have recognized the potential danger that existed as well.  Most adults would be able to see that an old rope swing might be dangerous, especially since it is placed over a dry creek bed with rocks, that doesn’t mean those adults are not going to still use that rope, but they would be doing so at their own risk.  Same with an old treehouse, most adults understand that wood rots and nails rust, and that without upkeep most structures can become weakened and dangerous.  Kids do not see these dangers; they just see something to play on.

            Whoever it is that owns the land would be liable for Leslie’s death because it was foreseeable given the propensity for children to intermeddle that she would come on to the property, play on the rope swing and get hurt, or worse.  The easiest way the owner could have shielded themselves from liability would have been to cut down the rope, but they could also have built a fence to keep kids away from the creek and the woods.  The treehouse would also need to be torn down, or blocked in some way to prevent children from playing on or near it.  In the aftermath of Leslie’s death, the landowner is definitely going to want to do something about the property.  If the dangerous condition of the property was not known to the landowner before, it is now which means that if something happens in the future because the landowner failed to use reasonable care to make the property safe, or completely inaccessible, then they are going to be way more responsible for any future harm caused.  That landowner is probably going to want to build a proper footbridge over the creek and get rid of the treehouse.

            The Sandlot presents a much less serious situation, if you ignore the financial travesty of the Beast chewing up a signed Babe Ruth baseball, at least no one dies.  Technically, the Sandlot is set in 1962 which is before Rowland v. Christian was decided; however, the California Civil Code section was the same pre-Rowland, Rowland just reinterpreted it.  Section 1714 (a) states, [quote] “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” [end quote]  Prior to Rowland the courts still used the classifications in common law as a supplement to the statute, after Rowland the one standard listed in the statute was used.  Section 1714 has a notable exception in Section 846, called the “Recreational Use Exception” which exempts landowners from liability in cases where people use their land for recreational purposes and get hurt.  In both pre- and post-Rowland the attractive nuisance doctrine is essentially the same and generally there is a higher duty of reasonable care owed to trespassing children.  However, there does appear to be some confusion within the California Appellate Courts between the exceptions for recreational use and attractive nuisance.  Within 3 separate cases in the 1990s, the various courts found either that the landowner was liable for a child almost drowning in a nearby creek because they negligently failed to maintain their fence; or that the landowner was not liable for children injured when playing on abandoned farm equipment or climbing a tree in a vacant lot because the activities were a recreational use.  It is mentioned in other cases that the recreational use exception is meant to keep areas suited to recreational purposes open to the public because landowners are protected from ordinary negligence, but landowners do still have the right to bar the public from entering their private property.  In a case where the landowner is prohibiting access to their land, they are no longer protected by the exception and must use ordinary care even with trespassers.

            Admittedly, this analysis is a bit of a stretch because none of the children are injured on Mr. Mertle’s property, but let’s just pretend that one of them did while trying to get the Babe Ruth ball back.

            Would Mr. Mertle be liable for any injuries caused by the Sandlot kids trespassing on his property?  What is Mr. Mertle’s responsibility regarding his dog, the Beast?  Is he liable for the damage to the Babe Ruth ball?  Would the kids be liable for damaging Mr. Mertle’s fence?  And if the Beast had been hurt or died from the fence falling on him, would the kids be liable for harm to the dog?

            Let’s start with Mr. Mertle’s responsibilities to the children.  Mr. Mertle’s yard definitely would constitute an attractive nuisance.  His property is a toy graveyard and has lots of junk that kids would not be able to resist playing on.  Also the kids regularly play in the Sandlot directly behind Mertle’s property, so it is foreseeable that children might try to intermeddle with stuff in his yard.  The Sandlot kids are all in the 10-12 year-old range and are apparently incapable of assessing risk, although they seem to appreciate the danger of Mr. Mertle’s yard, but for the wrong reasons.  They are terrified of Mr. Mertle and the Beast, but are willing to engage in all manner of dangerous activities to get the Babe Ruth ball back, including attaching 3 vacuum cleaners together which ends with an explosion and could have caused a fire, and attaching Yeah-Yeah to a rope and lowering him into the yard with no protection against what they believe is a child-murdering dog.  All these activities involve the kids going to elaborate lengths because of the height of the fence.  While it might be foreseeable that the kids would try to climb the fence, or crawl through a hole in the fence, it is not foreseeable that they would drop a kid from a rope into the yard.  Mr. Mertle might try to use the recreational use exception to argue the kids are using his yard to play, but I don’t think that argument would hold up because they are only trying to enter to retrieve their property and Mr. Mertle’s fence would seem to imply he is trying to keep people off his property.

            The fence is made of corrugated metal nailed to wooden posts.  There is only one hole that the kids use to look through the fence, but it is not big enough for the kids or the dog to go through.  The outside of the fence also has a second low wire fence that covers this hole and presumably goes into the ground a bit to prevent the Beast from digging under the fence.  The fence is really tall, taller than the fences on either side.  The kids are able to jump up and hold onto the top to peak their heads over it, but Benny has to climb an abandoned rusted out car that is next to the fence in order to climb over it and into the yard.  For the majority of the movie, the children do not go near the fence because they are terrified of the dog.

            The only other way the kids are able to see into Mr. Mertle’s yard is from the Treehouse that is in the yard next door.  The kids have to go through a gate from the Sandlot into this neighbouring yard to access the Treehouse, and they hang out in that yard a lot when they are trying to retrieve the ball.  So I can only assume that one of the kids’ lives in that house, which means one of these kids, is the next door neighbor of Mr. Mertle.

            Aside from Ham’s claim that a kid was killed by the Beast once, which no one else seems to have heard about, there is no evidence that anyone has ever been harmed in Mr. Myrtle’s yard.  In fact it looks like no one has ever even entered Mr. Mertle’s property because it looks like any toy that lands in there is just left behind.  Even the Sandlot kids are willing to just give up on a day of playing baseball because they hit a home run into the yard.  When they buy the replacement ball to sign for Smalls’ stepdad the ball costs 98 cents, which considering a Coke was only 10 cents in the 1960s is pretty expensive, but the kids routinely buy a new ball instead of trying to recover the old ones.  As far as Mr. Mertle is aware, no one has ever trespassed before; the fence and the Beast have been enough to prevent uninvited guests in the past.  However, the fact that there is a treehouse clearly visible from his yard, the sheer number of abandoned kids toys in his yard, all combined with the obvious baseball diamond directly behind his house that has kids playing baseball on it almost every day is enough to alert Mr. Mertle to the presence of children and the potential they might try to trespass in his yard.  

            The fence alone is probably enough to absolve Mr. Mertle from liability based on the attractive nuisance doctrine.  The fence is tall, mostly shields the yard from view, and even has a secondary lower fence to prevent digging and to cover the only hole in the fence.  The kids have to resort to outlandish means to gain access to the yard, which are not foreseeable.  By having the fence, Mr. Mertle has exercised reasonable care in preventing harm to the children in the area.  And even without the statutory exception for recreational use, Mr. Mertle has met the statutory standard of ordinary care owed to any visitors to his property.

            With regards to the baseball, Mr. Mertle does not automatically own property that ends up in his yard.  If the children had asked for the ball back he would have been required by law to retrieve it and give it back; otherwise he is committing theft.  If the children never ask for it back, then it would be considered abandoned and it would belong to Mr. Mertle because that is whose property it is on.  In this case, I don’t think Mr. Mertle would be liable for the damage caused to the ball or its loss in value because he didn’t intentionally damage it or withhold it from the kids.  The dog chewing up baseballs is a known hazard to the kids that they risk any time a ball goes over the fence.  In the end, Smalls does get the ball back from Mr. Mertle, but Smalls would be solely responsible for the loss in value.  Of course this ends up working out because Mr. Mertle actually knew Babe Ruth and gave Smalls a replacement ball signed by Babe Ruth, and the rest of the 1927 New York Yankees.  The internet seems a bit torn by the values of the 2 balls, but it seems that they are at least equal in value, although the one signed by the whole team would logically be worth more.  Smalls ends up with all three balls (the destroyed Babe Ruth ball, the fake Benny signed ball, and the Murders’ Row ball) so in the end if he cost anyone money, he cost himself the value of the original ball.

            At the end of the chase scene, the Beast knocks down Mr. Mertle’s fence as he tries to get back into the yard behind Benny and the fence falls on top of the dog.  Smalls and Benny are able to lift the fence and save the Beast (whose name is actually Hercules).  The fence is destroyed and the dog could have been seriously hurt or killed by the actions of Benny.  Even though the dog is ultimately the reason the fence comes down, Benny is the one that initially trespasses on Mr. Mertle’s property and antagonizes the Beast into chasing him.  Without Benny’s actions, the Beast would have stayed in the yard and there would have been no damage.  So Benny, and Benny’s parents or legal guardian because he is a minor, is responsible for the cost of repairing the fence and would also be responsible for any harm caused to Hercules due to Benny’s trespassing.  Mr. Mertle seems to come up with his own community service option for the damage by having Benny and Smalls come by once a week to talk baseball.  Presumably the fence got fixed by the kids, but this is unclear.

            Finally, there is the liability regarding the dog.  Generally, the owner of a wild or dangerous animal is strictly liable for harm caused by that animal.  If it is a domesticated animal that are generally considered dangerous, like bulls or bees, then strict liability does not apply.  Domesticated animals that are known to have dangerous propensities, like dogs that have bitten people before, are subject to strict liability.  Strict liability is essentially negligence but instead of having to prove the defendant breached their duty of care, the injured party only needs to show that the defendant owed a duty of care, that the harm occurred, and the harm was caused by the dangerous animal, object, or activity.  Basically, the validity of Squints’ story about the origin of the Beast is the key to determining what kind of liability Mr. Mertle might have.  If the Beast has killed people, or even just injured them, in the past then Mr. Mertle would be strictly liable for any injuries caused by his dog.  However, there are a few problems with the story, including that it supposedly took place 20 years ago and that Beast had killed over a hundred people.  First, dogs do not live for more than 20 years, especially big dogs; even if the Beast was extremely old, Smalls says in his voice over that Hercules lived quite a few more years after that summer.  Second, no law enforcement agency is going to allow a dog owner to keep a dog chained up in his yard if that dog has killed several people, let alone 100s of people.  They wouldn’t have even let a human who had killed one or two people back in 1940s-ish California live, they would have been executed.  There does not seem to be any evidence other than the crazy ghost story that Hercules is a dangerous dog, and he seems perfectly sweet when they finally meet him.              California law provides that a dog owner is liable for harm caused by the animal when the harm occurs on public property or when the injured party is lawfully on private property.  The State gives a dog 2 bites before it is considered dangerous and the State has a right to intervene.  The exception for both the owner’s liability and the designation of being dangerous is when the dog attacks someone who is trespassing on the owner’s private property.  So, as long as Hercules was on Mr. Mertle’s property he is allowed to bite trespassers, because it would be nonsensical to have a guard dog that cannot do its job completely.  Mr. Mertle would probably want to have a “beware of dog” sign though, just to err on the side of caution.  The Sandlot kids are very aware of the presence of the dog, and even falsely believe he is dangerous.  Initially the kids are trespassing on Mr. Mertle’s property, which is when Hercules has interactions with them or the things they put into his territory.  Hercules only leaves the property because Benny takes his toy and he chases after it.  Mr. Mertle has met his standard of care regarding his keeping Hercules on his property.

            Between the Sandlot and Bridge to Terabithia, we can see the difference between a landowner that has met the standard of care when dealing with trespassing children, and one that has not met that duty.  The attractive nuisance doctrine only requires that the owner of the property that contains the attractive dangerous condition act reasonably in making the premises safe when it is foreseeable that children may enter the property and get hurt.  In Bridge to Terabithia, Leslie is killed because the old rope swing breaks.  Leslie’s parents would have had a basis to sue for negligence because the property owner should have foreseen that children in the area would try to play on the old rope and in the woods.  The rope was made much more dangerous by the fact that it was placed over a fairly deep creek bed that had rocks.  Unlike Mr. Mertle in the Sandlot, the Creek and the woods did not have a high, solid, double fence in place to prevent children from coming on to the property.  The landowner probably would not have needed a fence; just cutting down the rope would have been enough.

            Bridge to Terabithia is a lovely story about two friends and the world they create together, but it is also a tragic look at the potential dangers out there for children playing where they probably shouldn’t.  The book is made that much more tragic by the fact that the friendship between Leslie and Jess is based on the story of two real life friends.  Katherine Paterson wrote the book after her son’s best friend was struck by lightning and instantly killed while at the beach with her family.  In the book and the movie, like its real life tragedy, none of the characters is really at fault for Leslie’s death and there is not much they could have done to prevent it.

            The Sandlot on the other hand is a great example of one of those stories where there would be no story if the characters acted rationally.  In this case, if Smalls had not borrowed the Babe Ruth ball, or mentioned that it was his stepdad’s and he kept it on the mantle, which, logically, would spark their interest and they would have discovered before playing with it that it was signed by the Great Bambino himself.  Or even if Smalls had not told them where exactly he got the ball, all their problems could have been solved if instead of Benny waiting till the end of the movie to be brave enough to face the Beast, the kids had realized they just needed to brave the front step of Mr. Mertle’s house.  Worst case scenario, he yells at them or tries to hurt them, but it would be broad daylight on a residential street so they would probably be okay.  Best case scenario they discover Mr. Mertle is actually a kind, old man with wealth of baseball stories and the Beast is just a dog named Hercules that needs some exercise.  The point is that children are not rational and the law actually recognizes this propensity to intermeddle.  Of course, if the kids of the Sandlot had acted rationally, we would not have gotten an amazing, childhood movie that most of us will remember fondly, for-ev-ver, for-ev-ver.

Thank you for listening.  This show is researched, written, and recorded by me, Céleste Young.  None of the legal advice or opinions expressed in this episode are intended as specific or individualized legal advice.  Please like, subscribe, rate, or review this podcast if you enjoyed it.  If you have any questions or comments, please e-mail them to Waitisthatlegal@gmail.com.  You can find the Podcast on Twitter, Facebook, and Instagram.

Keep your valuable sports memorabilia locked up and never underestimate the propensity for children to intermeddle.