Children possess natural curiosity, a quality that can be both charming and dangerous. The “attractive nuisance doctrine” is a legal concept, designed to protect curious children, that makes it easier to sue a property owner for an injury sustained by a child on his property, even if the child was trespassing at the time of the accident.
Premises Liability and Trespassing
Premises liability is a legal doctrine that classifies a property owner’s duty of care to prevent other people from being injured by dangerous conditions on his property. A property owner’s highest duty of care is owed to an invitee (such as when a customer in a grocery store slips on a banana peel), while the lowest duty of care is owed to a trespasser (such as a burglar who falls down a flight of stairs, for example). It is very difficult, although not impossible, for an adult trespasser to recover damages arising from his illegal presence on someone else’s property.
An attractive nuisance is something man-made, regularly maintained, dangerous, and likely to attract the curiosity of children. Some courts relax these restrictions – for example, some courts will hold a property owner liable even if the attractive nuisance was not well-maintained.
What You Have to Prove to Win Under the Attractive Nuisance Doctrine
In order for a property owner to be liable under the attractive nuisance doctrine:
- the condition must be dangerous enough to potentially cause death or serious bodily harm,
- the property own must have been aware (or should have been aware) that children were likely to trespass on his property,
- the children must have been too young to be expected to have appreciated the danger of the condition, and
- the owner must have failed to take reasonable precautionary steps to prevent injury
Examples of Attractive Nuisances
Although any condition meeting the foregoing legal standards might be classified as an attractive nuisance, following are some typical examples:
- Swimming pools
- Dangerous animals
- Railroads
- High-voltage power lines
- Construction sites
- Stairwells (leading to a cellar, for example)
How to Protect Yourself against Attractive Nuisance Liability
To minimize your potential attractive nuisance liability, take the following steps:
Take reasonable safety precautions: The key word here is “reasonable”. Simply putting up a warning sign, for example, might not be considered a reasonable precaution against a trespasser who is too young to read the sign. You might want to fence in a swimming pool, lock a cellar stairwell door or take abandoned equipment to a junkyard. If you are already being sued under the attractive nuisance doctrine, be aware that almost every jurisdiction forbids the use of evidence of subsequent repairs against you in court.
Comply with local safety regulations: If you are sued under an attractive nuisance doctrine, the plaintiff will gain an enormous legal advantage over you if he can show that the child’s injury was related to a safety regulation that you failed to comply with.
Try to predict what might happen: Children can get hurt or killed in a variety of ways. A child might lock himself into an abandoned refrigerator during a game of “hide and seek”, for example, or have his fingers bitten off by a horse to whom he offered an apple. Although you don’t have to have the imagination of Walt Disney to protect yourself from liability, it does help to try to think like a child for a moment.
If you are anticipating legal action relating to the attractive nuisance doctrine (whether as a plaintiff or as a defendant), it might be a good idea to contact a local personal injury lawyer right away.
