Can the attractive nuisance doctrine apply to residential construction sites? Kessler v. Mortenson Explained

In a significant development for premises liability law, the Utah Supreme Court in Kessler v. Mortenson overturned decades of precedent that categorically excluded residential construction sites from the attractive nuisance doctrine. This decision fundamentally changes how courts analyze injuries to children at construction sites across Utah.

Background and Facts

Six-year-old Eric Kessler entered a partially-constructed house to play hide-and-seek with friends. While playing, he backed into and fell through a hole in the floor where a staircase was to be built, sustaining injuries. His mother sued the builder Randy Mortenson/CRM Construction and property owner Stephen Sheffield. The defendants moved for summary judgment, citing Taylor v. United Homes (1968) and Featherstone v. Berg (1972), which held that the attractive nuisance doctrine was categorically inapplicable to residential construction sites.

Key Legal Issues

The central question was whether the attractive nuisance doctrine should apply to injuries occurring at residential construction sites. The court also addressed whether to adopt the Restatement (Second) of Torts § 339 in place of Utah’s traditional Brown v. Salt Lake City formulation, which required proof of “allurement” to establish liability.

Court’s Analysis and Holding

The Utah Supreme Court comprehensively rejected the categorical exclusion established in Taylor and Featherstone. The court found no sound policy justification for treating residential construction sites differently from other artificial conditions that might attract children. Addressing defendants’ concerns about increased burdens on homebuilders, the court noted that residential construction sites are temporary hazards in areas where children are frequently present, and builders are best positioned to recognize and mitigate such dangers.

Significantly, the court also abandoned Utah’s traditional Brown formulation in favor of Restatement § 339, which requires proof of five elements: (1) the landowner knows children are likely to trespass; (2) the condition poses unreasonable risk of death or serious bodily harm; (3) children cannot discover or appreciate the risk due to their youth; (4) the utility of maintaining the condition is slight compared to the risk; and (5) the landowner failed to exercise reasonable care.

Practice Implications

This decision requires practitioners to conduct case-by-case analysis rather than relying on categorical exclusions. Construction companies and property owners must now consider reasonable safety measures to protect children, though liability is not automatic—all Restatement § 339 elements must be satisfied. The decision aligns Utah with most western jurisdictions and provides a more comprehensive framework for analyzing child trespasser cases across all types of artificial conditions.