What Is an Attractive Nuisance?

Basis for the Attractive Nuisance Doctrine

Courts recognize that children are inherently curious and do not always recognize the dangers of certain activities. Some objects on a person’s property may irresistibly draw children to conditions on properties. As such, the law imposes a higher duty on landowners to protect the children on the land when the landowner knows that a condition on their property that poses a danger to children. Most jurisdictions require that the condition that drew children to the property to be artificial and not natural, such as a natural pond. It also recognizes that children do understand certain dangers, such as the possibility of getting burned by fire or falling from a height.

Elements of an Attractive Nuisance

In order for a jury to find that a condition was an attractive nuisance, the plaintiff must be able to show that a potentially dangerous condition was present on the injury at the time of the accident. Additionally, the plaintiff must be able to prove that the landowner created or maintained the condition and that he or she should have known or actually knew that the condition attracted children onto his or her property. Furthermore, the landowner should have known that the condition had the potential to harm children.

Age Requirement

At the heart of an attractive nuisance doctrine is the idea that a child is too young to recognize the particular danger that harmed him or her. However, there is not usually a specific age that case law or a statute sets out in order for a child to be able to recover for damages. These cases are typically decided on a case-by-case basis. However, there are several general guidelines. For example, if a child can climb a fence, he or she may be old enough to understand the consequences. Teenagers can sometimes recover, but they are less likely to have the condition considered an attractive nuisance than much younger children. If a child has been instructed not to go on the property, the attractive nuisance doctrine may not apply.

Cost of Remedying the Condition

Many courts consider the cost that the landowner would have incurred to take precautions to protect children from being harmed because of the dangerous condition. They evaluate this factor by comparing the benefit of maintaining the condition or the cost to remedy the condition to the risk to the children. Additionally, the court can look to whether the landowner has failed to take reasonable measures that would eliminate the danger. Reasonable precautions may include installing locks or placing potentially dangerous objects in another location that blocks access to them. Putting up a fence around a swimming pool is another example. Placing a “no trespassing” sign on the property will not usually be sufficient to mitigate a person’s liability.

Examples of Attractive Nuisances

Although these cases are determined on a case-by-case basis, some objects are routinely found to be attractive nuisances. For example, swimming pools are believed to call to children, especially in hot summer weather. Other artificial water conditions such as koi ponds or decorative fountains can also be considered attractive nuisances. Machinery and tractors are also believed to tempt children onto the property. Appliances like abandoned refrigerators serve as hiding spaces for young children. Building sites and open pits may also be considered attractive nuisances.

Precautionary Steps

Landowners may be able to take precautions to help prevent foreseeable injuries. For example, if they have appliances on the exterior of their property, they may remove doors to avoid suffocation risks or put the items on the curb for pick up. Many states require landowners to put up a fence around swimming pools. Vehicles should not contain keys and should be locked up and have their windows rolled up to avoid tempting children to get inside them. Ditches for construction sites and other holes should be covered, possibly with a cement cap. Power tools can be unplugged and locked up. Following applicable laws regarding precautions can help establish a reasonable approach to the situation.
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Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case.

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