We were provided with another case to study in preparation for Orientation: Law School Foundations II. Below is the case brief for Kessler v. Mortensen.

Kessler v. Mortensen

16 P.3d 1225


Kessler on behalf of her minor child


Randy Mortensen, CRM Construction, Stephen Sheffield, and John Does I through V


Eric Kessler was a child who trespassed on a residential construction site to play a game. During the game, he fell through a hole (pending stairway) and was injured. The mother sued for damages.

The defendants said that because of Taylor and Featherstone, they were not liable because the child was trespassing on a residential construction site. Therefore, the attractive nuisance doctrine does not apply.

The defendants won and the Kesslers appealed.

Legal Questions

Is the construction company liable for the injuries sustained to the child at the construction site? Should we overrule Taylor and Featherstone in regards to trespassing children in construction sites in association to the attractive nuisance doctrine?


The court holds that owners are liable for injuries caused to trespassing children in residential construction zones, overruling Taylor and Featherstone. The court adopts Section 399 Restatement (Second) of Torts. Finally, each case is to be evaluated on a case-by-case basis. Trial court ruling in favor of the company is Reversed and Remanded for further trial.


First, it is important to understand what the attractive nuisance doctrine was supposed to do. The doctrine protects trespassing children by making owners liable for injuries from objects on their property. This is because children should not be tried as adults are when it comes to trespassing.

The defense claimed that to make a construction site safe, they would need to build fences which would increase the price of labor which would increase the price of homes. The court disagrees arguing that the risk of injury to children is much higher than the comparative risk of housing cost. This is because those costs are temporary (building a home is a temporary job).

Then, the court turns to examine the attractive nuisance doctrine. Here, they determine that they will no longer use the Brown rule in favor of the “Section 339 Restatement (Second) of Torts”. Here are the rules in the Restatement test:

  1. The owner knows there is a potential for children to trespass.
  2. Injury may occur as a result of the trespass.
  3. Children do not know the risk of the area (because of their youth)
  4. The burden on the owner is slight in comparison to the risk of the child.
  5. Finally, the owner fails to exercise “reasonable care” to limit the danger and protect the children.

It is important to note that although a construction site is now included in the attractive nuisance doctrine, a house may not be considered an attractive nuisance. This is to be determined on a case-by-case process.

Why should we care?

We learn from this case the development of the attractive nuisance doctrine. This furthers our discussion in Brown from the previous case, and shows when the court may be willing to alter the rules.

As far as the case goes, there are three big takeaways

  1. Taylor and Featherstone are disavowed. Constructions sites can fall into the attractive nuisance doctrine.
  2. The court drops Brown as the rule and instead uses 339 Restatement (Second) of Torts (This was adopted from several other jurisdictions).
  3. Finally, this case will be remanded for further trial and all other cases will be evaluated on a case-by-case basis.

Additional Notes

This lecture is going to focus mostly on how to brief a case. A case brief is how lawyers make notes of the cases they need to use.

How to be efficient and effective at case briefing

Mostly, this is about finding a personal balance. Whether you take notes in your books, type it out, or handwrite it, they should be specific to you. Find a way that works for you, evaluate a couple weeks into law school, then adjust and stick with it.

Case brief components


Part of the reason why you keep the citation is to know if the parties are significant. Also, you can learn information about the significant history (an older date means there may be other recent cases)


You will likely write facts last so that you can write down what facts are relevant to the case analysis

Here, you will ask what background information is important to the courts analysis. This should be as simple as possible, unnecessary details are likely to slow you down.

Procedural History
  • Who is the plaintiff and defendant
  • What was the original claim (argument)
  • How did the lower (trial) court rule?
  • What is the claim on appeal
  • This information is important because it helps you understand the current issue versus what the original issue was. This may make the case more clear.

Substantive (Implied)



This is not the holding of the case. Instead, the rule is the general legal principle that applies to the factual information provided. This rule will be used in future cases. This is the founding of common law.


Known as the “ruling”. What did the court decide for this particular case. Further, the holding can be broad or narrow. When we write our holdings, we need to make sure we are neither too narrow or too broad. Doing so could limit the court too much or go overreach the jurisdiction of the court.


The analysis is the justification that the court uses when deciding their holding. They can use a legal, moral, social, policy, or political justifications.

Concurring/Dissenting opinions
  • Concurring opinions come from a judge who agrees with a result, but has a different result.
  • Dissenting opinions disagree with the result. These are mostly edited out, but if they are included, they should be included in briefings.


When you are in class, you should pay attention to the conversation. Therefore, if you miss something, you can make a note about what you did wrong and why it was important.

You can use context clues to help you establish an insight on what the case is about. You can use the table of contents, or the syllabus.

Additionally, you should use a dictionary (black’s dictionary) for words you do not know.

Finally, the briefs are tools. They should be edited frequently to improve what you are learning.


The content contained in this article may contain inaccuracies and is not intended to reflect the opinions, views, beliefs, or practices of any academic professor or publication. Instead, this content is a reflection on the author’s understanding of the law and legal practices.

If you would like to listen to this article instead, play below.

Categories: Orientation

Will Laursen

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