Gerzeski v. Department of State Highways

(for reversal). Justice Moody has aptly analyzed the semantic difficulties inherent in our nuisance case law. We agree with that analysis insofar as it explains the different methods of classifying nuisance for evidentiary and liability considerations. As an evidentiary question, whether or not the artificial pond in which the two children and the father of one of them drowned was a nuisance is a question of fact. The Court of Claims judge, sitting as trier of fact, determined that the pond was both an "attractive nuisance” and an "intentional nuisance” and awarded damages.

On the liability…