Property at the Park

Since becoming a parent, I’ve encountered a whole new realm of social norms involving children in public spaces in my neighborhood, Brooklyn Heights.  E.g., the playground rules technically bar food and drink, but both are commonplace and accepted.  It’s totally fine to forget a park acquaintance mom’s name, but socially embarrassing to forget her child’s name.  Stay in the swing as long as you want until there is someone identifiable waiting; then the first-in must be the first-out, within about 3 minutes.  (I am, admittedly, still learning the ropes here so for any Brooklyn Heights parents, my apologies if I’ve gotten any of these norms wrong.)   

One set of norms that particularly intrigues me relates to toddler toys at the park.  A local park, Cadman Plaza, features a large open field with no play equipment.  Children arrive with all manner of toys (scooters, baby strollers, balls, etc.).  In typical toddler fashion, the owner of the toy will generally use it for a few minutes, then lose interest and become obsessed with another child’s toy.  The norm seems to be that, unless small enough to be secreted away in a stroller basket and so stowed, toys become common property open to the use of other toddlers as long as the “owner” toddler isn’t presently using the toy.  I specify here toddler because this norm does not appear to extend to baby toys or “big kid” toys.  Thus, it is not ok for a toddler to take a baby’s rattle from the baby’s blanket or for a big kid to take another big kid’s stroller out for a spin.  The toddler norm seems designed to accommodate the mobility and short attention span of toddlers as well as their failure to appreciate “mine” vs. “yours,” and to avoid turning the park space into a series of fraught “no” encounters.  It also seems to reflect a view of these bright shiny toys as a honeytrap for the toddler set.  In other words, if you bring a bright shiny toy to the park and set it alluringly out in my toddler’s line of site, it is akin to entrapment.

These norms regarding park toy use remind me faintly of the attractive nuisance doctrine in tort which requires (real) property owners to exercise reasonable care with respect to child trespassers under certain conditions.  The property owner’s rights are limited primarily out of recognition of the diminished capabilities of children.  (It also seems to me that there might be some analogous instances in property law where property rights become similarly limited under certain circumstances (property profs?).) 

The conditions that the Restatement requires to invoke the attractive nuisance doctrine follow, with my annotations indicating how they likewise seem to be satisfied in the park/toy scenario described above.  So my very limited observation as a result of this exercise – it is mildly interesting, for purposes of thinking about the relationships between norms and law, to note that the requirements for invoking a legal rule that limits (real) property rights are (perhaps unsurprisingly) similar to those that underlie a social norm limiting (personal) property rights.

Restatement (Second) of Torts § 339 (1965)

Artificial Conditions Highly Dangerous To Trespassing Children

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass [toy bringers know other children are likely to be at the park], and

(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 [toy bringers know that bright shiny toys pose an unreasonable risk of attempts at expropriation], and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it [toddlers don’t understand private property yet, “mine” vs. “yours”], and

(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 [sharing the toy or not bringing it at all is much easier than forcing everyone else to keep their toddlers away from the toy], and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children [notably, if a toy is secreted way in a stroller, it doesn’t fall within the “mine is yours” park norm].