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<br />5EP-19-2005 15:00 <br /> <br />LEAGUE OF MN C IT I E5 <br /> <br />6512811296 <br /> <br />P.08 <br />52 <br /> <br />The rema~n~ng question to be addressed is determining who <br />is an adult and who is a child under the restatement standards. <br />In Huahes, 338 N.W.2d 422. 424-25. the court examines this issue <br />in depth. There is no set age at which a plaintiff should be <br />denied 5339 instruction. Comment c to 5339 states that 5339 has <br />been applied in a few instances to 16 and 17 year old children. <br />The comment also says that as the age' of the child increases. <br />conditions become fewer for which there can be recovery under <br />this rule, until at some indeterminate point, probably beyond <br />the age of 16. there are no longer any such conditions. In the <br />end. this determination has to be made after reviewing the facts <br />and circumstances of each case. <br /> <br />In conclusion. a municipality has a duty to fence man-made <br />ponds if it can be reasonably foreseen that individuals. <br />especially children, will be by such ponds. An example would be <br />if a sewer retention pond is constructed next to a day-care <br />center. However, with regard to natural ponds, it is uncertain <br />whether or not fencing could be required. Even the Restatement <br />(Second) of Torts has expressed no opinion as regards this <br />issue. Therefore, use the same reasonableness standard as used <br />in the above man-made pond situation. <br /> <br />6 <br /> <br />;ti <br /> <br />TOTAL P. 0'/ <br />