Understanding the Doctrine of Attractive Nuisance

As a general rule, there is no duty by a property owner to keep their property safe from, or to warn others of, dangerous conditions on the property, when the injured victim is a trespasser. The trespasser is on the property illegally or without the owner’s permission—hence being a trespasser—and as such, if the trespasser is injured because of something dangerous on the property, the property owner normally cannot be held liable.

But there is one situation where this does not apply, and where a property owner can be liable for a trespasser’s injury: when the trespasser is a child, and the dangerous condition constitutes what is known as an attractive nuisance.

What is Attractive Nuisance?

As the name suggests, an attractive nuisance is a condition on property that would be attractive to, or which would lure, children onto the property. The condition must be artificial, or man made—it can’t be a natural condition, like a lake, or a beach.

The dangerous nuisance or condition could also be an object—for example, a piece of equipment that kids are likely to play on, a golf cart that kids may take or climb on, or a trampoline.

The landowner must have some prior  knowledge that the nuisance exists, and that it is something that would or which does attract kids. Many times this is easy—imagine an area where young skateboarders skateboard all the time, or the landowner sees kids at the community pool all the time and just looks the other way.

Proving Attractive Nuisance

The nuisance that attracts the kids, must be something that involves a risk of death or harm. That doesn’t mean that the nuisance itself must be dangerous. For example, a pool is, normally, not inherently dangerous—but everybody knows that it can be dangerous to young children who swim unattended.

The nuisance must be one that younger children would not realize as being dangerous.

The court will then weigh the cost, expense, trouble, or time involved in “fixing” the nuisance, or securing it safely from young trespassers, as compared to the danger that the nuisance presents to the kids.

Note that many of the factors above will differ, based on the child’s age. What a child can appreciate as dangerous, or what it takes to keep kids away, or whether something is dangerous to a child, largely depends on the age and maturity of the child.

In many of these kinds of cases, the ages and maturity of the victims come into play, and are issues in the injury case.

Securing the Property

With attractive nuisance, the duty of a landowner is not always to eliminate the danger—it’s to secure the property and keep young trespassers out of the property or away from the potentially dangerous condition. These kinds of cases therefore don’t hinge on whether the landowner “fixed the problem” the way a traditional premises liability would involve.

Call the Boston personal injury lawyers at The Law Office of Joseph Linnehan, Jr. today at 617-275-4200 for help if you have a child that was injured on someone else’s property or because of someone else’s carelessness.

Sources

law.cornell.edu/wex/attractive_nuisance_doctrine

nationwide.com/lc/resources/home/articles/attractive-nuisances