Bennett v. Stanley

Cook, J.,

dissenting. The majority uses this case to adopt the attractive nuisance doctrine as stated in 1 Restatement of the Law 2d, Torts (1965), Section 339. I am well aware of the fact that an overwhelming majority of American jurisdictions have adopted the attractive nuisance doctrine in some form. I also recognize the important public-policy considerations underlying the doctrine and that this court has been, and should be, willing to reexamine its common-law doctrines in appropriate cases. See Elliott v. Nagy (1986), 22 Ohio St.3d 58, 60, 22 OBR 77, 78, 488 N.E.2d 853, 855. But if this court is to effect a significant change in Ohio law, as it does today with the adoption of Section 339, it should do it in a case in which the issue is properly before the court. In this case, the record reflects that the Bennetts waived any right to pursue the attractive nuisance doctrine as a theory of recovery.

In the trial court, the Stanleys moved for summary judgment, arguing that Cher Bennett and her son were “undiscovered trespassers” to whom no duty was owed except to refrain from willful and wanton misconduct. The Stanleys’ motion also noted that this court had refused to adopt the attractive nuisance doctrine. In response to the Stanleys’ motion, the Bennetts expressly disclaimed any reliance on the attractive nuisance doctrine, despite having pleaded the very elements of it in their complaint. On appeal to the Fourth District Court of Appeals, the Bennetts raised eight assignments of error, none of which argued the applicability of the attractive nuisance doctrine. In fact, the Bennetts again disclaimed that theory of recovery, stating that they “do not have to rely upon the *45doctrine of attractive nuisance to prevail in this case.” Finally, in their appeal to this court, the Bennetts raise four propositions of law, none of which relates to the attractive nuisance doctrine. The Bennetts’ merit brief to this court states in no uncertain terms, just as in the court of appeals, that they “do not have to rely upon thet doctrine-of attractive nuisance to prevail in this case.”

The procedural history of this case shows that the Bennetts, at every stage of the litigation, have deliberately declined to raise the attractive nuisance doctrine as a theory of the Stanleys’ liability. The Bennetts have accordingly waived any argument for adopting the attractive nuisance doctrine. It is well settled that we will not consider issues not presented in the trial court. State ex rel. Zollner v. Indus. Comm. (1993), 66 Ohio St.3d 276, 278, 611 N.E.2d 830, 832. Similarly, we will not consider a claim of error that an appellant failed to raise in the court of appeals. Foran v. Fisher Foods, Inc. (1985), 17 Ohio St.3d 193, 194, 17 OBR 430, 431, 478 N.E.2d 998, 999.

Admittedly, the briefs submitted to this court are not entirely devoid of arguments concerning the attractive nuisance doctrine and, in particular, Section 339 of the Restatement of Torts. But these arguments appear only in the brief of amicus curiae, Ohio Academy of Trial Lawyers, and in the Bennetts’ reply brief. Neither brief properly brings the issue before us. An amicus curiae is not a party to the case and may not interject issues and claims not raised by the parties. Lakewood v. State Emp. Relations Bd. (1990), 66 Ohio App.3d 387, 394, 584 N.E.2d 70, 74. And a reply brief cannot raise a new issue that the appellants failed to raise in their merit brief. See Hill v. Urbana (1997), 79 Ohio St.3d 130, 135, 679 N.E.2d 1109, 1113, fn. 2 (Lundberg Stratton, J., concurring in part and dissenting in part); State v. Murnahan (1996), 117 Ohio App.3d 71, 82, 689 N.E.2d 1021, 1028.

Although the majority offers compelling reasons for adopting the attractive nuisance doctrine, it is not appropriate to establish this groundbreaking rule in the case at bar. The Bennetts chose to litigate avenues other than the attractive nuisance doctrine and successfully petitioned this court for review on those issues. The majority ignores the Bennetts’ legal claims in favor of reaching an issue that the Bennetts waived in the lower courts. I would address only the propositions of law actually raised by the Bennetts and affirm the judgment of the court of appeals for the reasons stated in its opinion.

Even if the Bennetts had properly preserved the attractive nuisance issue for our review, I would decline to join the majority’s second syllabus paragraph. The majority holds, without citation of any supporting case law, that an adult may successfully invoke the attractive nuisance doctrine if the adult suffered injury “in an attempt to rescue a child from a danger created by the defendant’s negligence.” Yet this extension of the doctrine is unnecessary to assure recovery for *46an adult who sustains injury in an attempt to rescue a child placed in danger by the tortfeasor’s negligence. As the majority correctly observes, a person injured during an attempted rescue may recover from the party negligently causing the danger to the same extent as the person who required assistance from the rescuer. See Pittsburg[h], Cincinnati, Chicago & St. Louis Ry. Co. v. Lynch (1903), 69 Ohio St. 123, 68 N.E. 703, syllabus. This “rescue doctrine” has long been a part of Ohio’s common law. Estate of Minser v. Poinsatte (1998), 129 Ohio App.3d 398, 401-402, 717 N.E.2d 1145, 1148; Reese v. Minor (1981), 2 Ohio App.3d 440, 2 OBR 534, 442 N.E.2d 782; see, also, Pennsylvania Co. v. Langendorf (1891), 48 Ohio St. 316, 28 N.E. 172, paragraph three of the syllabus. Thus, a possessor of land who is liable to a child under the attractive nuisance doctrine is also liable for injuries suffered by the adult rescuer of the child. See Blackburn v. Broad Street Baptist Church (1997), 305 N.J.Super. 541, 702 A.2d 1331; Brady v. Chicago & N.W.R. Co. (1954), 265 Wis. 618, 625-626, 62 N.W.2d 415, 419. But this liability is predicated on a straightforward application of the. rescue doctrine and not on any extension of the attractive nuisance doctrine to cover adults.

McCauley, Webster & Emrick and James H. McCauley, for appellants. Theisen, Brock, Frye, Erb & Leeper Co., L.P.A., John E. Erb and Abe Sellers, for appellees. A. William Zavarello Co., L.P.A, Rhonda Gail Davis and A. William Zavarello, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers. Lundberg Stratton, J., concurs in the foregoing dissenting opinion.