The legal term for a potentially harmful object that - by its features - tends to lure children is an attractive nuisance. An attractive nuisance is not typically a natural condition, but a condition created by a property owner. A natural pond is not generally considered an attractive nuisance. A swimming pool, however, is.
Children are generally incapable of appreciating the danger an attractive nuisance can pose. As such, it is a property owner’s responsibility to take reasonable steps to protect trespassing children from the potential dangers of an attractive nuisance. The doctrine of attractive nuisance does not usually apply to situations where children have permission to be on a particular piece of property.
Attractive Nuisance Laws
The law of attractive nuisance varies greatly from state to state. As always, a local attorney would be the best source of knowledge regarding a specific question about a particular property. However, there are several factors that seem to apply in most - if not all - jurisdictions.
The first factor to consider is whether the landowner knows or has reason to know that children could trespass near the hazard. If there are children in the area, could they trespass near the hazard? Whether the children live in the area, play in the area or just walk by the area on their way home from school is irrelevant. If children are regularly in the area of the hazard, a property owner should realize that the children could trespass.
The second factor to be considered is the type of hazard on the property and whether the hazard poses an unreasonable risk of death or serious bodily harm to children. Here, common sense and the ability to see things from the perspective of a young child can go a long way. Using the pool example, it should be easy for a property owner to determine that trespassing children could drown or injure themselves due to the pool. Other examples include holes, pits or wells, unrestrained animals, power tools, lawn maintenance equipment left in the yard, etc. Children are curious. If they see a hole in the backyard, it is foreseeable that they will want to explore.
Next, consider whether the trespassing children, due to their youth, could appreciate the risk involved. This is a judgment call and is not a black and white proposition. Age, cognitive ability and several other factors can all be taken into consideration. A five year old and a fifteen year old do not have the same knowledge and experience, and the judge or jury would not treat them in the same manner. It is conceivable that an unrestrained dog in a backyard could be considered an attractive nuisance for a five-year-old, but not a trespassing teenager. Generally, as children get older they possess a greater ability to appreciate the danger of any given condition.
Maintenance Concerns and Attractive Nuisance Laws
Another factor is the importance to the landowner of maintaining the hazardous condition. For example, if a house is being built on a piece of land, a basement must be dug and a foundation poured. The presence of the hazardous condition is vital to the landowner’s use of the property. Such a situation is less likely to be considered an attractive nuisance than a giant open pit that serves no purpose. Still, fencing off the building site would go a long way to reduce potential liability.
Finally, consider whether reasonable precautions were taken or reasonable care was exercised to eliminate the attractive nuisance or to provide sufficient warning of the hazard to protect the children from harm. The court will typically weigh the cost and inconvenience of warning children or making dangers safe against the usefulness and necessity of the activity and resulting hazard to the landowner. Fence in pools, and fill in pits or holes. Do not leave dangerous tools lying around the yard. Move tables and chairs away from areas that could conceivably provide access to roofs or other high areas. Do not leave potentially dangerous pets unsupervised or unrestrained in areas where children could trespass. Simple common sense will go a long way in reducing potential attractive nuisance liability.
An attractive nuisance can be difficult to define, but generally courts consider the fact that a child can injure himself on nearly anything. As a property owner, common sense and an ounce of prevention can greatly reduce attractive nuisance liability. If children are trespassing on your property tell them to stay out, make their parents aware of their child’s activities, and take reasonable precautions to prevent potential injuries. As always, contact a local attorney with any specific questions.