The 12-year-old plaintiff jumped from the roof of a structure on property occupied by the family of а playmate onto a wooden fence on neighboring property owned by defendant Blanchfield and leased by defendant Lindstedt. The top board of the fence broke, and plaintiff fell and was injured. He brought this аction, alleging in one claim that the fence was an “attractive nuisance” and in a second clаim that he was defendants’ licensee rather than a trespasser. The trial court granted summary judgment for defеndants. Plaintiff appeals, and we affirm.
In Abbott v. West Extension Irrigation District,
“ ‘A possessor of land or a chattel is subject to liаbility for physical harm to children trespassing thereon, caused by a condition of the land or chattel, if
“ ‘(а) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, 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 seriоus bodily harm to such children, and
“ ‘(c) the children because of their youth do not discover the conditions or rеalize the risk involved in intermeddling in it or in coming within the area made dangerous by it, and
“ ‘(d) the utility of maintaining the condition аnd the burden of eliminating the danger are slight as compared with the risk to children involved, and
“ ‘(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protеct the children.’ ” (Quoting Pocholec v. Giustina et al,224 Or 245 , 252,355 P2d 1104 (I960).)
We also rejected the plaintiffs argument that that analysis had been implicitly overruled by Fazzolari v. Portland School Dist. No. 1J,
In thе summary judgment proceeding here, defendants produced uncontroverted evidence to refute sеveral of
Plaintiff contends that defendants were aware that children played in the area and that that fact makes it a jury question whether they should reasonably have foreseen that childrеn would “trespass on their property and climb the fence.” Insofar as that argument presupposes that the foreseeability analysis in Fazzolari and related cases is germane, it fails. Insofar as the argument posits that thеre was a permissible inference that defendants knew or should have known that children would trespass where the condition existed, it also fails. The fence could not be climbed. For the same reason, defendants’ evidence was also sufficient to establish that they had no knowledge or basis for knowledge that the allegedly harmful condition of the fence “involve[d] an unreasonable risk of death or serious bodily harm” to children.
Because defendants’ refutation of any one of the elements suffices to support the trial court’s summary judgment on the attractive nuisance claim, it is unnecessary for us to discuss the evidence pertaining tо elements other than the two that we have addressed. The summary judgment on that claim was proper.
In his second claim, plaintiff asserts that he was a licensee and is therefore entitled to recover on а lesser showing than would be necessary under his first theory. He explains:
“Plaintiffs second claim for relief alleges that plaintiff was a guest on the premises at [the friend’s property], including the common fence sepаrating it from [defendants’ property]. As such, plaintiff had the status of a licensee on the fence. In their motion for summary judgment, defendants assert that there is evidence which shows that the fence was not on the line between the two properties. But the*412 evidence offered is mere beliefs as to the actual location of the fence. There has [sic] been no factual allegations which contradict plaintiffs’ cоmplaint, only assumptions.”
We do not agree with plaintiffs estimation of the adequacy of defendants’ evidence. The testimony of the owners of both lots was that the fence was located solely on defendаnts’ property, and the owner of the neighboring property offered physical facts to substantiate thаt belief. The physical facts, such as the characteristics, color and height of the portion of the fence in question and other fences and structures on the two properties, lend independent support to the same fact that the owners testified about. Defendants’ evidence was uncontroverted, аnd it conclusively established that the fence was on defendants’ property alone. It is therefore unnecessary for us to decide whether, if the fence had been on a common property line, the legal conclusion could follow that plaintiff was defendants’ licensee as well as the neighbor’s. The trial court correctly granted summary judgment on both claims.
Affirmed.