Banker v. McLaughlin’s Empirical Analysis

Citation profile

15 federal appellate · 81 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 102 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “(1) the place where the condition was maintained was one upon which the possessor knew or should have known that small children would likely frequent the place and play about it; (2) the condition was one of which the possessor knew, or should have known, involved unreasonable risk of death or serious bodily harm to such children; (3) the child, because of its tender years, did not realize the risk involved in exposing itself to the condition; and (4) the utility, if any, to the possessor of eliminating the condition was slight as compared to the probability of injury.”

   13 later decisions quote this exact passage · from the majority
   e.g. Jackie Byrum Timmons, Individually and as Representative of the Estate of Billy Edwin Byrum v. Texas Utilities Electric Company · Brownfield v. Missouri Pacific Railroad

2. ““The theory of liability under the attractive nuisance doctrine is that, where the owner maintains a device or machinery on his premises of such an unusually attractive nature as to be especially alluring to children of tender years, he thereby impliedly invites such children to come upon his premises, and, by reason of such invitation, they are relieved from being classed as trespassers, but are in the attitude of being rightfully on the premises. Under such circumstances, the law places upon the owner of such machinery or de-rice the duty of exercising ordinary care to keep such machinery in reasonably safe condition for their protection, if the facts are such as to raise the issue that the owner knew, or in the exercise of ordinary care ought to have known, that such children were likely or would probably be attracted by the machinery, and thus be drawn to the premises by such attraction.” (Emphasis ours.) The “attractive-nuisance”, or so-called turntable doctrine, is applicable to cases involving different dangerous instrumen-talities and conditions on the premises.”

   2 later decisions quote this exact passage · from the majority
   e.g. Texas Utilities Electric Co. v. Timmons · Lawanda Woolridge, Individually and as Representative of the Estate of Jordan Centrell Woolridge v. East Texas Baptist University

3. ““Whatever may have been the rule in this state prior to the Banker deci sion, it is now clear that a landowner cannot escape liability for bodily harm to trespassing children caused by a structure or other artificial condition maintained on his land by simply establishing that such structure or other artificial condition was not unusually attractive to children. In the Banker case this court approved and adopted the rule laid down in Volume 2, p. 920, Sec. 339, of the Restatement of the Law of Torts wherein it is said: ‘A possessor of land is subject to liability for bodily harm to young children trespassing thereon caused by a structure or other artificial condition which he maintains upon the land, if “ ‘(a) the place where the condition is maintained is one upon which the possessor knows or should know that such children are likely to trespass, and “ ‘(b) the condition is one of which the possessor knows or should know and which he realizes or should realize as involving an unreasonable risk of death or serious bodily harm to such children, and “ ‘(c) the children because of their youth do not discover the condition or realize the risk involved in inter-meddling in it or in coming within the area made dangerous by it, and “‘(d) the utility to the possessor of maintaining the condition is slight as compared to the risk to young children involved therein.’ “See also Prosser on Torts, Sec. 77, pp. 620-625. “In the Restatement comment on Clause (a) above it is said: ‘It is not”

   1 later decision quote this exact passage · from the majority
   e.g. Dezendorf Marble Company v. Gartman