Q: “Last week, I was shocked to hear of the death of 2-year-old Kayson Shelton, who was visiting San Francisco from Utah with his parents and siblings. Apparently he died while climbing on a dolphin statue outside the Majestic Collection Art Gallery on Jefferson Street at Fisherman’s Wharf. I live in that area and I have often seen these statues out in front of the store as well as all sorts of other merchandise blocking the sidewalk by other vendors. Who’s responsible, the gallery, The City, the child?”
A: Sheila, this was a tragedy. As a parent of a young boy, I know how curious and fearless they are. I too saw this on the news and it made me think how fragile life is. Your question raises many issues including San Francisco’s sidewalk ordinances, the merchant’s responsibility and what, if any, responsibility is attributed to 2-year-old Kayson.
The Port of San Francisco regulates the sidewalks along Jefferson Street. There has been a long-standing tension between the Port and the merchants who want to spill their wares onto the sidewalk to entice customers into their stores. The situation had gotten so bad, the Port had drawn a blue line on the sidewalk that merchants were required to stay behind to reduce congestion and trip hazards.
When I went down to look at the Majestic storefront in anticipation of this article, I saw that in front of the store, the blue line was right at the building perimeter. Therefore, any statue that was outside of the building would, by necessity, be encroaching into the right of way.
A business is not allowed to encroach onto the sidewalk in any part of The City without an encroachment permit obtained through the Department of Public Works or, in this case, the Port Authority. An encroachment permit requires that any item placed on the sidewalk must be installed in a manner that does not obstruct the flow of traffic or create a safety hazard.
Here, there was no such permit and it appears that the Port had cited the Majestic for encroaching on the sidewalks before. Therefore, it can be argued that the Majestic knowingly violated the law when it placed the statue outside the blue line in the public right of way. It seems reasonably foreseeable, given the number of people walking along that area, that someone could bump into a statue and, given the number of kids visiting in the area, that a child might climb upon it.
There is a doctrine, recognized under California Law since the 1800s, called the attractive nuisance doctrine. It states that one who places a dangerous contrivance in a place frequented by children and knowing, or having reason to believe, that children will be attracted to it and subjected to injury, owes the duty of exercising ordinary care to prevent injury because the owner should know that children are often unable to foresee, comprehend and avoid the danger.
Indeed, courts have stated that it is a matter of common experience that children of tender years are guided in their actions by childish instincts and are lacking in discretion that, in those of more mature years, is ordinarily sufficient to appreciate and avoid danger. This is similar to the heightened obligations that pool owners must take to prevent children from being injured by the attraction a pool presents.
In this case, I believe that the doctrine of attractive nuisance could be applied.
As a corollary to the attractive nuisance doctrine, the law recognizes that children are held to a lower standard of accountability. According to California jury instruction No. 402, “Children are not held to the same standards of behavior as adults. A child is required to use the amount of care that a reasonably careful child of the same age, intelligence, knowledge, and experience would use in that same situation.”
Therefore, while the owners of the gallery owed a heightened duty to the child and his parents, the law recognizes that children are held to a lower standard — one of a reasonable child. Therefore, Sheila, it appears that the owners of the gallery face a strong case against them. But in a case like this, it is of no consolation. Hopefully other merchants will see this as a warning and abide the regulations to prevent further harm.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to firstname.lastname@example.org.