Rubio v. Davis

I agree that the trial court erred in granting a judgment notwithstanding a mistrial on the Rubios’ negligence claim. But I dissent *429because the Rubios cannot simultaneously maintain a claim based upon the theory of attractive nuisance. Construing the evidence in the Rubios’ favor, as we are required to by law, they have clearly demonstrated that their child was a licensee or invitee rather than a trespasser. The majority cannot “have it both ways”; the testimony of the Rubios’ own witnesses cannot be relied upon to establish a claim of negligence and then rejected in order to sustain a…