dissenting.
There is material evidence to support the verdict of the jury which was approved by the trial judge. In my view, the majority ignores applicable law, i.e., a minor’s capacity for negligence is a jury question and substitutes its judgment for that of the trier of fact denying plaintiffs a trial by jury.
Where a jury verdict has been approved by the trial judge, appellate courts are required to take the strongest legitimate view of the evidence in favor of the result. If there is any material evidence to support that result, the judgment must be affirmed. See Overton v. Davis, 739 S.W.2d 2 (Tenn.App.1987).
The majority cites Metropolitan Gov’t of Nashville v. Counts, 541 S.W.2d 133 (Tenn.1976), wherein the Tennessee Supreme Court adopted elements of attractive nuisance found in the Restatement (Second) of Torts § 339. There is material evidence in the record to support a jury verdict for plaintiff under each of these elements.
§ 339(a) the place where the condition exists is one upon which the possessor *48knows or has reason to know that children are likely to trespass ...
Counts held the landowner’s knowledge that children are habitually trespassing to play is tantamount to the old common-law requirement that children be lured onto the premises. 541 S.W.2d at 136. The record is replete with references to the management’s awareness that neighborhood children frequented the pool and that many adults and children were trespassing at the pool on the day of plaintiff’s injuries. An opening in the fence large enough for a 13-year old girl to pass through was utilized by some and others crawled under or climbed over a retaining wall, which made entry to the pool easily accessible.
§ 339(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children.
Again, the record provides material evidence from which the jury could conclude that the apartment management knew the pool was dangerous. An expert witness testified that the pool had numerous defects: inaccurate depth markers; no sign prohibiting diving; plus a woefully inadequate fence. These defects constitute violations of state regulations on pool maintenance.1
§ 339(c) the children because of their youth do not discover the condition or realize the risk involved in intermed-dling with it or in coming within the area made dangerous by it.
In this regard, the expert witness opined that the pool contained hidden hazards that a person like the plaintiff might not have been able to assess.
Under Tennessee law, there is a rebut-table presumption that a child between 7 and 14 is incapable of negligence; conversely, there is a rebuttable presumption that a child 14 and over is capable of negligence as an adult. This standard, known as the Rule of Sevens, has long been the law in this jurisdiction. See e.g., Prater v. Burns, 525 S.W.2d 846 (Tenn.App.1975); Williams v. Williams, 63 Tenn.App. 252, 470 S.W.2d 368 (1971); Bailey v. Williams, 48 Tenn.App. 320, 346 S.W.2d 285 (1960). The Rule of Sevens is only part of the test for a minor’s capacity for negligence. The issue is further evaluated in the light of a minor’s age, ability, intelligence, training and experience. See Prater, 525 S.W.2d at 852; Williams, 470 S.W.2d at 374. Moreover, the same standards are used to evaluate a minor’s capacity for contributory negligence. In Williams, whether children were capable of negligence was a jury question. In a recent opinion we have said that the fact question about a minor’s negligence is evaluated in light of what would be reasonable to expect of a child of “like age, capacity, knowledge and experience.” Learue ex rel. Learue v. State, 757 S.W.2d 3 (Tenn.App.1987).
While there is a split of authority on the issue of whether a minor above the age of 14 may assert a claim on the theory of attractive nuisance, jurisdictions such as Tennessee that have adopted the Restatement say there is no fixed age limit for application of the attractive nuisance doctrine to teenagers. See Annot., 16 A.L.R.3d 25, 81 (1967 & Supp.1990). In fact, comment (c) to the Restatement, cited in part by the majority, says that although the doctrine is not often applied to children over 12, in a substantial number of later cases recovery has been allowed for children as old as 17. Id,.2 As Learue suggests, the contributory negligence of a minor over 14 is a fact question in which age is but one of several criteria. Other cases which embrace the presumption language of Learue have held that older teens are not barred from reliance on the attractive nuisance doctrine by their age alone. E.g., in Skaggs v. Junis, 27 Ill.App.2d 251, 169 *49N.E.2d 684 (1960), whether a 16 year old diver was contributorily negligent was a question for the jury considering the minor’s experience, intelligence and capacity. In Dickeson v. Baltimore & Ohio Chicago Terminal RR Co., 42 Ill.2d 103, 245 N.E.2d 762 (1969), the court said that a 14-year old plaintiff’s “dull-normal” I.Q. score of 81 was a factor to be considered by the jury on the issue of the minor’s contributory negligence.
Expert testimony in this case placed the plaintiff's mental capacity at 12 to 14 years of age. In an I.Q. test before the accident, plaintiff tested at the border of low average to retarded in language comprehension skills. Unlike the evidence in Learue, there is evidence in this record from which a jury could infer that Barnes would not have comprehended the risk of injury by diving into the pool.
§ 339(d), (e)(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
Unlike Counts, where a cattle pond was utilized by the owner in an unguarded state, the swimming pool was not “usable” by the complex in its inadequate state of maintenance and repair. The groundkeeper testified that a “No Diving” sign could have been posted for about $2.00. The fence was in such a state of disrepair that users could easily crawl under it, walk through a hole in it or scramble over the top of it and constituted no real deterrent to trespassing children’s use of the pool. Arguably, a comparison could be made to a broken lock on an abandoned refrigerator. The fence had some symbolic value, but even that impact was dispelled when it was soon discovered by the users to be no real impediment to the use of the pool. Of course, the complex need not insure the safety of trespassing children but the burden of repairing the fence and putting the pool in compliance with state regulation was slight in comparison with the risk posed to such children.
In a case cited by the majority, the trial court set aside a jury verdict on behalf of a child who drowned in a municipal swimming pool. Reversing, this court held that in an attractive nuisance case, the negligence of the town and contributory negligence of the child were jury questions for which there was disputed material evidence in the record:
There is abundant evidence ... from which the jury could have found that defendant had permitted children to use these grounds ... had actual knowledge they would so use them; the pool was located upon the grounds; it was dangerous; and defendant did not exercise ordinary care in providing safeguards against the dangerous pool. Williams v. Town of Morristown, 222 S.W.2d 607 (Tenn.App.1949), modified 222 S.W.2d 615 (Tenn.1949) (remand for new trial unnecessary and judgment entered for plaintiffs).
The same could be said of the facts in this case. There was material evidence in the record to support the jury’s conclusion that the pool constituted an attractive nuisance and that plaintiff did not have the capacity to understand that diving into the pool could cause his injuries. Therefore, I dissent and would affirm the trial court’s judgment.
. The fact that defendant put the pool under padlock suggests an awareness that some danger might have been posed by the water-filled pool that did not meet state safety guidelines.
. In McIntyre v. McIntyre, 558 S.W.2d 836 (1977), the Supreme Court refused to rule as a matter of law that a child age 14 or older could not bring himself within "the attractive nuisance or playground doctrine." Id., at 838.