Master New Jersey Supreme Court delineates the limits of the attractive nuisance/trespassing-children doctrine for ordinary water hazards on residential property. with this comprehensive case brief.
Berger v. Shapiro is a leading New Jersey decision on the scope of landowner liability for injuries to trespassing children under the attractive nuisance and trespassing-children doctrines. The case addresses a recurring torts problem: whether an artificial body of water at a private residence—such as an ornamental pond or pool—creates liability when it lures a very young child into harm. The court’s answer helps define when foreseeability and child vulnerability yield to doctrinal limits that protect landowners from open-ended liability for common, obvious conditions.
For law students, Berger is significant because it locates the boundary between the classic attractive nuisance concept and the Restatement (Second) of Torts § 339 (trespassing children). It underscores a widespread rule: ordinary water hazards (even artificial ones) are not actionable under attractive nuisance absent a concealed or “trap-like” danger or a specific statutory duty. The opinion provides a framework for analyzing utility-versus-risk, the obviousness of the condition, and the policy considerations that shape duty to child trespassers.
30 N.J. 89, 152 A.2d 20 (N.J. 1959)
The defendants, the Shapiros, owned a suburban residence with an artificial ornamental pond on their property. The feature was shallow but wide, and it was neither fenced nor otherwise barricaded. The neighborhood included families with small children, and the defendants were or should have been aware that children sometimes played nearby. The very young plaintiff (a toddler) wandered from his home onto the Shapiros’ premises, was attracted to the water feature, and fell into the pond, resulting in severe injury. The plaintiff’s guardians brought suit alleging that the pond was an attractive nuisance and that the defendants were negligent for failing to fence, guard, or otherwise secure the water feature, given the likelihood that small children would trespass and be unable to appreciate the risk.
Does a residential landowner owe a duty under the attractive nuisance/trespassing-children doctrine for injuries to a trespassing child caused by an ordinary artificial water hazard (such as an ornamental pond), absent a hidden danger or statutory violation?
Under New Jersey law, as informed by the Restatement (Second) of Torts § 339, a possessor of land may be liable for physical harm to trespassing children caused by an artificial condition if: (a) the possessor knows or has reason to know that children are likely to trespass; (b) the condition poses an unreasonable risk of death or serious harm; (c) the children, because of their youth, do not discover the condition or realize the risk; (d) the utility of maintaining the condition and the burden of eliminating the danger are slight compared to the risk; and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children. However, ordinary bodies of water—natural or artificial—are generally not deemed “unreasonable risks” within § 339 and do not constitute attractive nuisances absent unusual, concealed, or trap-like features, or a specific statutory duty (e.g., a pool-fencing statute) that, if violated, can supply negligence per se.
No. The court held that an ordinary artificial water feature on residential property does not, without more, constitute an attractive nuisance or an unreasonable risk under § 339, and the landowner owed no duty to the trespassing child beyond refraining from willful or wanton misconduct. The complaint failed to state a claim absent allegations of a hidden or trap-like hazard or a statutory violation.
The court began by recognizing the general principles protecting child trespassers in limited circumstances, as reflected in § 339. It emphasized, however, that modern tort doctrine does not convert every foreseeable injury to a child into landowner liability. The condition must pose an unreasonable risk to children that they cannot appreciate, and the utility and burden analysis must favor imposing a duty. Applying those principles, the court categorized the ornamental pond as an ordinary water hazard. Jurisdictions widely treat water, even when artificial, as a common condition whose risks are open and obvious, and whose utility and social acceptance are high. Requiring homeowners to fence, cover, or constantly guard every decorative pond or water feature would impose broad, impractical duties inconsistent with settled doctrine. The court distinguished cases involving hidden or unusual dangers—such as steep, concealed drop-offs, strong suction near drains, deceptive coverings, or other trap-like conditions—which can transform an otherwise ordinary water hazard into an unreasonable risk under § 339. The court also considered statutory policy. Where the legislature specifically requires fencing or safety measures for swimming pools, noncompliance can supply negligence per se or evidence of negligence. But the plaintiffs did not allege a statutory duty applicable to the ornamental pond. Thus, neither § 339 nor any statutory framework justified imposing liability in this case. The absence of concealed hazards and the ordinary character of the water feature led the court to affirm judgment for the defendants.
Berger v. Shapiro is a touchstone for understanding the limits of the attractive nuisance/trespassing-children doctrine. It teaches that: (1) foreseeability of child trespass is not, standing alone, a basis for liability; (2) ordinary water hazards, even if artificial, are generally outside § 339; and (3) liability is more likely where a hidden, trap-like danger exists or where a statute imposes clear safety obligations. For students, Berger is valuable for duty analysis, for weighing risk-utility under § 339, and for spotting when statutory schemes (such as pool-fence requirements) change the outcome.
No. Berger explains that ordinary water hazards—natural or artificial—are not inherently attractive nuisances. Liability may arise only if the condition involves unusual, concealed, or trap-like dangers, or if a specific statute imposes safety requirements that the landowner violated.
Berger applies § 339’s framework for trespassing children but clarifies that ordinary water hazards typically do not satisfy the “unreasonable risk” component. The case underscores the importance of the risk-utility balance and the child’s ability to appreciate obvious dangers.
Potentially, yes. If a statute requires fencing or safety features for pools and the landowner fails to comply, that violation can constitute negligence per se or strong evidence of negligence, which can change the duty analysis and possibly the result.
Actionable scenarios include hidden or trap-like dangers: concealed drop-offs; deceptive covers or planks that appear safe; powerful drains creating suction; murky water hiding risks; or configurations that are not apparent to children. Such features can transform an ordinary water hazard into an unreasonable risk.
Yes. Under § 339, the child’s ability to appreciate the danger is key. Very young children are less capable of recognizing risks. However, Berger shows that even very young age does not convert an ordinary, obvious hazard (like open water) into a legally unreasonable risk absent additional hidden dangers.
Berger v. Shapiro clarifies that the attractive nuisance and trespassing-children doctrines are not strict-liability regimes for child injuries on land. The decision narrows liability for commonplace, obvious conditions—particularly ordinary water features—while preserving a pathway to recovery where hidden, trap-like dangers or statutory mandates exist.
For exam purposes, Berger offers a method: (1) identify whether § 339 applies; (2) determine if the condition is ordinary or contains concealed dangers; (3) weigh the utility and burden; and (4) consider statutory duties. This structured approach will help you analyze child trespass cases and argue the presence or absence of a duty with precision.