Typically, property owners may be held liable when their negligence causes injury to anyone who’s considered an “invitee” on their property. For homeowners, that would generally be family, friends and guests. For business owners, “invitees” applies more broadly. They have less liability if someone who is trespassing is injured, as long as they didn’t do something to deliberately injure trespassers, like set a trap of some sort.
When trespassers are children, a property owner may have liability for their injuries under something called the “attractive nuisance” doctrine. The idea behind it is that children often aren’t fully aware of the concept of trespassing. Further, even if they are, there are some things (attractive nuisances) that are just too tempting to resist.
Attractive nuisances include a lot more than pools
Some attractive nuisances (like swimming pools) present such a risk that there are state and local regulations stipulating what steps must be taken to make them inaccessible to children – like walls, locking gates and alarms.
Attractive nuisances extend far beyond pools and even play equipment like swing sets, treehouses and trampolines that would naturally attract kids. They also include:
- Man-made water features like ponds, wells and fountains
- Construction projects, equipment and tools
- Unlocked cars (particularly older cars where a child could become trapped in a trunk)
- Old appliances
- Toxic materials
Animals – even pets – can also be considered attractive nuisances. Someone may let their dog spend time outside on a nice day in their fenced-in yard. If that fence has a gate that can be opened by a child and the dog bites that child who has entered its territory, the owner may well be considered liable for those injuries.
How do you show that a property owner with an attractive nuisance is liable?
Typically, you need to show that the property owner:
- Had a potentially dangerous condition
- Knew that the condition could attract children (or should have known that)
- Knew (or should have known) that the condition could be harmful
The doctrine generally applies only when a dangerous condition is man-made. For example, a property owner likely can’t be held responsible for keeping people out of a stream that’s running through their land or off of a steep hill behind their home.
Every case is unique. Important factors include the child’s age, how careless the property owner was and whether they could have reasonably anticipated an injury. The complexity of this area of law is one reason why it’s crucial to have experienced legal guidance if your child was harmed by an attractive nuisance.