             IN THE COURT OF APPEALS OF TENNESSEE
                         AT NASHVILLE
                                                            FILED
                                                              July 16, 1999
AARON DANIEL HARPER and wife,               )
                                                           Cecil Crowson, Jr.
AMY ELIZABETH HARPER, surviving             )
                                                          Appellate Court Clerk
natural parents of CHRISTOPHER              )
DANIEL HARPER, deceased,                    )
                                            )
       Plaintiffs/Appellants,               )
                                            )   Appeal No.
                                            )   01-A-01-9809-CV-00503
VS.                                         )
                                            )   Davidson Circuit
                                            )   No. 97C-2156
J.D. ELLIOTT and wife,                      )
ANITA R. ELLIOTT,                           )
                                            )
       Defendants/Appellees.                )


       APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE

               THE HONORABLE MARIETTA M. SHIPLEY, JUDGE



RICHARD H. BATSON II
329 Union Street
P. O. Box 198725
Nashville, Tennessee 37219-8725
       Attorney for Plaintiffs/Appellants

DAVID S. ZINN
Suite 102
2000 Glen Echo road
Nashville, Tennessee 37215-2857
       Attorney for Defendants/Appellees




                            AFFIRMED AND REMANDED




                                                      BEN H. CANTRELL,
                                                      PRESIDING JUDGE, M.S.

CONCUR:
KOCH, J.
COTTRELL, J.
                                 OPINION
              The plaintiffs’ four-year-old son wandered onto the defendants’ property

and drowned in their backyard pool. The plaintiffs charged the defendants with

maintaining an attractive nuisance and in failing to take reasonable steps to prevent

forseeable harm to trespassing children. The Circuit Court of Davidson County

granted summary judgment to the defendants. We affirm.



                                           I.



              The defendants own a home on Due West Avenue in Madison. In 1978

they constructed an in ground pool behind their house. In July of 1996 a wrought iron

fence surrounded the pool; the vertical bars in the fence are spaced five and three-

eighths inches apart and are forty-six inches high. Access to the pool area is through

two gates with simple latches. The pool is also surrounded by a stone or concrete

deck. A low diving board and a slide are permanent fixtures. On the date of the

accident a portable slide was also on the pool deck, and colorful inflatable toys were

located in and around the pool.



              Due West Avenue is a busy four lane street at the location of the

defendants’ home. In June of 1996 the plaintiffs rented a duplex apartment a few

doors east and on the same side of the street. The plaintiffs had two sons, four-year-

old Christopher, and Matthew, aged two. On July 9, 1996, between 7:00 and 8:00

a.m., while his father was away on a job interview and his mother was asleep,

Christopher left the house alone. Later that morning searchers found his body in the

defendants’ swimming pool. The defendants were away from home. There is no

evidence of the route the child took, or how he entered the pool area. A police offficer

speculated that he squeezed between the bars of the fence, took off his clothes, and

slid down the slide into the pool.




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             The plaintiffs sued the defendants for the wrongful death of their child.

The plaintiffs argued two separate but related theories. The first was a theory of

general negligence: the defendants had a duty to prevent the harm that occurred to

Christopher Harper. The second was that the pool was an attractive nuisance. The

Circuit Court of Davidson County granted summary judgment to the defendants.



                                         II.



             Everyone owes to everyone else a duty of care that is reasonable under

the circumstances. Doe v. Linder Construction Co., 845 S.W.2d 173 (Tenn. 1992).

A property owner’s duty to third persons depends on the relationship of the injured

party to the owner. To those persons on the owner’s property with his/her consent,

express or implied, the owner owes a duty to prevent forseeable harm to the

invitee/licensee. Hudson v. Gaitan, 675 S.W.2d 699 (Tenn. 1984); Eaton v. McLain,

891 S.W.2d 587 (Tenn. 1994). To trespassers, on the other hand, the traditional rules

have provided very little protection. Toole v. Levitt, 492 S.W.2d 230 (Tenn. App.

1972). Although the experts cite different reasons for these distinctions, see Prosser

on Torts § 58 (1984); Harper & James, Law of Torts § 27.3 (1986), we think as good

a reason as any is the knowledge of the landowner that other persons may be on

his/her property. If the owner has no reason to know that outsiders are present on the

property, there is no duty to make the property safe. If, however, trespassers

habitually use the property, and that fact is known by the owner, a different duty may

arise. See 62 Am.Jur.2d Premises Liability § 207; Restatement of Torts 2d § 335.



             Most jurisdictions have adopted some special rules for trespassing

children. See 62 Am.Jur.2d Premises Liability § 208, et seq. In our state, if a child

has been enticed or lured onto the premises by the instrumentality or condition

causing the harm (the attractive nuisance doctrine) or if the owner knows or should

know that children habitually use the property as a playground (the playground


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doctrine), the owner has a duty to exercise reasonable care to eliminate the

dangerous condition or otherwise to protect the child or children. Metropolitan

Government of Nashville v. Counts, 541 S.W.2d 133 (Tenn. 1976).



              Roll the two doctrines together and you have something approximating

the first subsection of the Restatement of Torts 2d § 339.           See Metropolitan

Government of Nashville v. Counts, 541 S.W.2d 133 (Tenn. 1976); John Wade,

Tennessee Survey-Torts, 7 Vand. L. Rev. 931, 967 (1954). The Restatement outlines

the conditions that must exist for a trespassing child to recover from the landowner.

The first condition is: “(a) the place where the condition exists is one upon which the

possessor knows or has reason to know that children are likely to trespass.” So far

as we are able to tell, however, the Tennessee courts have not adopted the

Restatement position outright, but still treat the attractive nuisance doctrine separate

from the playground doctrine.



              The plaintiffs do not allege in this case that the defendants knew or

should have known that children habitually used the property as a playground.

However, they do assert that facts exist from which an inference could be drawn that

Christopher was enticed onto the premises by the placement of colorful toys, the

slides, and the diving board. See Dupont Rayon Co. v. Roberson, 12 Tenn. App. 261

(1930).



              The trouble with this theory is that there is no evidence of where the

child entered the defendants’ property or what could be seen by a four-year-old child

from the sidewalk in front of the house. The father stated in his deposition that since

the accident, he had been able to see the pool area from a car on the street while

traveling on the west side of the house. Even then he was not sure what portion of

the pool he could see. He had never noticed the pool prior to the accident. A video

tape of a news broadcast from a local television station showed the colorful objects


                                         -4-
around the pool, but there is no indication that these things could be seen from the

sidewalk.



              The same video tape includes an interview with a resident at a

retirement home to the rear and east of the defendants’ property. He recites how the

child frequently came back to visit him; how he would give him candy and send him

back home. We think it is just as plausible that the child entered the defendants’

property from the east, and there is no evidence that the pool area can be seen at all

from that perspective.



              In McCormick v. Williams, 397 P.2d 392 (Kan. 1964), the Supreme Court

of Kansas addressed the requirement that the dangerous condition must entice the

child onto the property. The Court said, “It is necessary that the instrumentality

alleged to be an attractive nuisance should have been situated as to entice the child

onto the premises . . . It is not sufficient that it attract him after he has already become

a trespasser.” 397 P.2d at 395. Although we find no Tennessee cases using

language that specific, that is apparently what the rule in Tennessee means. In

Cooper v. Overton, 52 S.W. 183 (Tenn. 1899), the Court said that liability for injuries

to trespassing children did not exist unless they are induced to enter upon the land by

something unusual and attractively placed upon it by the owner. See also Bloodworth

v. Stuart, 428 S.W.2d 786 (Tenn. 1968); Pardue v. City of Sweetwater, 390 S.W.2d

683 (Tenn. App. 1965). We think the rule in Tennessee still is that the allurement or

enhancement must be visible from a place where the trespassing child had a right to

be; it is not enough that the condition came into view after the child became a

trespasser. There is no evidence in this record to support an inference that the child

was lured onto the defendants’ property by any thing in or about the pool.



              We are also convinced that the result would be the same if we were to

adopt the Restatement position fully. It is simply too much to say that the defendants’


                                           -5-
knew or should have known that children were likely to trespass on their property. In

all the years since they built the pool they had never known of a child coming onto

their property uninvited. The street is a busy, four-lane street, making it highly

improbable that a child small enough to fail to appreciate the danger of a swimming

pool would be wandering alone in the neighborhood.



             We affirm the judgment of the lower court and remand this cause to the

Circuit Court of Davidson County for any further proceedings necessary. Tax the

costs on appeal to the appellants.




                                         _________________________________
                                         BEN H. CANTRELL,
                                         PRESIDING JUDGE, MIDDLE SECTION

CONCUR:



_____________________________
WILLIAM C. KOCH, JR., JUDGE



_____________________________
PATRICIA J. COTTRELL, JUDGE




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