What is the Attractive Nuisance Doctrine?

Whether you’re a property owner or the parent of a small child, the “Attractive Nuisance” doctrine is legal news you can use.

The doctrine of attractive nuisance states that the owner of potentially hazardous property can be held liable for injuries to trespassing children if the injury is caused by a hazardous object or condition that is likely to attract children.

An “attractive nuisance,” simply put, is a structure or condition of property that is both dangerous and irresistible to children. These structures or conditions must be artificial (meaning man-made bodies of water as opposed to rivers or natural lakes, for example), and include abandoned property, such as vehicles or appliances. Common examples of attractive nuisances include swimming pools, railroads, and constructions sites or equipment.

The doctrine holds that putting up a warning sign or otherwise adequately warning of potential dangers on the property is occasionally sufficient, but liability is determined on a case-by-case basis, and usually more proactive steps are required. There is no specific age cutoff at which the attractive nuisance doctrine no longer applies; it is up to the court to decide whether the child was able to understand and appreciate the hazard, and therefore whether the doctrine will apply.

The Restatement of Torts standard states that there are five conditions that must be met in order for a property owner to be liable for a trespassing child’s injuries:

  1. The landowner knows or should know that children are likely to trespass on the property
  2. The artificial condition on the property poses a risk of death or serious bodily harm to children
  3. The children cannot understand or comprehend the risk presented by the condition
  4. The benefit of maintaining the condition or the cost required to eliminate the condition is slight compared with the risk to the children
  5. The landowner fails to exercise reasonable care to eliminate the danger or otherwise protect the children

In order to exercise reasonable care, the landowner should assess all of the property’s artificial conditions that may pose a threat to children, determine if children are likely to trespass, and then take steps to either eliminate the dangerous condition or ensure that trespassing children will not come into contact with the condition, most often by restricting access.

States that currently use the Restatement of Torts test for attractive nuisance include: Alabama, North Carolina, Ohio, Pennsylvania, Utah, Wyoming, and Texas.

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