Since the recent electrocution incident at Harbourside Place in Jupiter, Florida, the legal term “attractive nuisance” has become common in articles about the tragedy, because children were injured. Centered around the safety of children, this principle places the onus on property owners to ensure that potential dangers are kept out of reach from young, curious minds. Dive in as the intricacies of this compelling legal concept are unraveled, and discover why it’s crucial in our world today.
Imagine a shimmering, abandoned swimming pool in the heat of summer, a rusty old tractor left unattended in a field, or a dilapidated treehouse precariously perched without a safety net. To the adventurous heart of a child, these aren’t hazards: they are invitations to play, have fun and conquer. Unfortunately, these seemingly innocent attractions have led to heartbreak and tragedies, leading law and society to recognize the doctrine of “attractive nuisance.”
What is “Attractive Nuisance”
According to the Legal Information Institute at Cornell Law School, attractive nuisance refers to a “dangerous condition on a landowner’s property that may particularly attract children onto the land and pose a risk to their safety.” Owners and occupiers of land or buildings have certain obligations when it comes to ensuring the safety of people on their property. When their property has an attractive nuisance, these obligations are greater, especially where children are concerned.
The attractive nuisance doctrine holds property owners and tenants responsible for creating or allowing conditions that attract children to their property and then failing to ensure their safety. The doctrine is based on the idea that children are more likely to be attracted to dangerous objects or conditions than adults, and that they may not be able to appreciate the risks involved.
When is the Property Owner Subject to Liability for Physical Harm to Children?
Although interpretations vary state-by-state, courts have stated that although children may be “trespassing” on the property where the hazard is present, they should be considered “invitees” instead of trespassers. Why? Because they are often overwhelmed by curiosity, and don’t possess the experience or mental acuity that allows them to realize that an object or condition on the property may pose a risk to their safety. In general, a landowner is subject to liability for physical harm to children trespassing due to an “artificial condition” that exists on the property based on these conditions:
- The property where the condition exists is one which the landowner knows or has reason to know that children are likely to trespass.
- The condition is one which the landowner knows or has reason to know will involve an unreasonable risk of death or serios bodily harm to children.
- Children do not discover or realize the risk involved imposed by the dangerous area.
- Work or cost to the property to eliminate the condition are slight compared with the risk to the children involved.
- The landowner fails to exercise reasonable care to eliminate the hazard/danger to protect the wellbeing of the children.
Examples of “Attractive Nuisance”
There are many types of conditions/attractions a property owner could create that care classified as attractive nuisances. Here are a few common examples:
- Swimming pools
- Water attractions such as ponds, fountains, sprinkler pads
- Playground equipment
- Tree houses
- Construction projects/yards
- Old trucks and other vehicles
When Might a Parent Pursue Injury Claims Based on Attractive Nuisance?
Parents will pursue injury claims cased on the attractive nuisance doctrine when their child is injured on another’s property by a dangerous object or condition that was attractive to the child and that the property owner new or should have known was dangerous. The burden of proof on the plaintiff in an attractive nuisance case is to show that the following elements were present:
- The child was a trespasser at the time of the injury.
- The child was injured by an attractive nuisance on the property.
- The property owner knew of should have known that the attractive nuisance was dangerous to children.
- The property owner failed to take reasonable steps to protect children from the attractive nuisance.
When are Courts More Likely to Find in Favor of the Plaintiff in Attractive Nuisance Cases?
Courts are more likely to find in favor the plaintiff under certain circumstances in attractive nuisance cases. Here are some factors that can increase the likelihood of the plaintiff prevailing:
- Clear Danger: The dangerous condition on the property is evident and poses a clear risk to children
- Foreseeability: It’s crucial that the landowner could reasonably foresee children trespassing and getting harmed.
- Child’s Lack of Understanding: If it is demonstrated that the child, given their age or maturity, could not have understood the risks involved, it strengthens the case for the plaintiff.
- Cost of Prevention: If the cost or effort required for the property owner to fix the situation or prevent access is minimal compared to the risk it poses, courts are more likely to find in favor of the plaintiff.
- Previous Incidents: If there have been previous incidents involving the same condition on the property, it strengthens the argument that the property owner should have been aware of the risk and taken steps to mitigate it.
Other factors may include: Lack of Warning, State Laws & Precedents, Strength of Evidence, Quality of Legal Representation, and Public Policy Concerns.
Are you considering pursuing an injury claim based on “attractive nuisance?” Because every case is unique, and multiple factors can influence the outcome, it is crucial to confer with an experienced personal injury lawyer, who has experience representing victims in these types of cases. For a complimentary consultation with the expert lawyers at GOLDLAW, click here, or “Choose the 2’s,” and call 561-222-2222. You’ll be glad you did!