Because children are curious by nature, special care needs to be taken to ensure they do not unknowingly expose themselves to harm. While property owners usually do not owe a duty of care to keep trespassers safe, the attractive nuisance doctrine provides a legal exception when the trespassers are children.
Attractive Nuisance Defined
Attractive nuisance is a legal doctrine that holds property owners responsible for injuries to children trespassing on a property if the injury is caused by an object on the property that is likely to attract children. While this definition may seem broad, it effectively gives trespassing children the same legal protections that property owners owe to guests and invitees under premises liability.
Two things that have to be determined under the attractive nuisance doctrine are: (1) who is considered a child and (2) what is considered an attractive nuisance. While there is no legal specification regarding to who is considered a child, a trespasser is considered a child if they are too young to recognize the potential harm of an attractive nuisance. For something to be considered an attractive nuisance, it must be manmade. Naturally occurring hazards such as ponds, lakes, and steep embankments can be dangerous to children, but they are not legally considered attractive nuisances. Additionally, the nuisance must be enticing to children, causing them to trespass on the property.
Common Attractive Nuisances
• Abandoned cars
• Unguarded swimming pools
• Open pits
• Construction materials
In order for a property owner to be held liable for an injury resulting from an attractive nuisance, it must be shown that he or she knew or should have known that the condition existed and posed a serious threat to children who were unable to understand the dangers it presented. Additionally, it must be shown that it was reasonably practicable and feasible to prevent access to the attractive nuisance or to make the attractive nuisance innocuous.