Attractive nuisance doctrine

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Barron's Insurance Dictionary:

Attractive Nuisance

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Property that is inherently dangerous and particularly enticing to children. For example a swimming pool has a strong attraction to children and could lead to a liability judgment against the pool’s owner. The owner must take all necessary steps to prevent accidents, such as building an adequate fence around the pool.


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Barron's Real Estate Dictionary:

Attractive nuisance doctrine

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An appealing but potentially hazardous feature or characteristic of a piece of real estate that may lure trespassers who could suffer harm; in law, the owner of an attractive nuisance must take extraordinary precautions to avoid liability for harm to trespassers.


Example: Glen installs a swimming pool in his backyard. It can lure children to trespass and use it, potentially causing an injury or drowning. To avoid liability, Glen must install unusually high, secure, and/or screening fences to keep them out.

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Barron's Law Dictionary:

Attractive nuisance doctrine

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The doctrine in tort law which holds that one who maintains a dangerous instrumentality on his or her premises which is likely to attract children is under a duty to reasonably protect those children against the dangers of that attraction.
299 S.W. 2d 198, 199. Under this doctrine the fact that the child may be a trespasser is merely one fact to be taken into account, with others, in determining the defendant’s duty , and the care required of him or her. The basis of this liability is generally held to be nothing more than the foreseeability of harm to the child, and the considerations of common humanity and social policy which, in other negligence cases, operate to bring about a balancing of the conflicting interests, and to curtail to some reasonable extent the defendant’s privilege to act as he or she sees fit without taking care for the protection of others. Therefore, one has a duty to fence swimming pools, to remove doors from discarded refrigerators, to enclose partially constructed buildings, and to be sensitive to other potentially dangerous conditions which attract curious children. See Prosser & Keeton on Torts §59 (5th ed. 1984).
Wikipedia on Answers.com:

Attractive nuisance doctrine

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In the law of torts, the attractive nuisance doctrine states that a landowner may be held liable for injuries to children trespassing on the land if the injury is caused by a hazardous object or condition on the land that is likely to attract children who are unable to appreciate the risk posed by the object or condition. The doctrine has been applied to hold landowners liable for injuries caused by abandoned cars, piles of lumber or sand, trampolines, and swimming pools. However, it can be applied to virtually anything on the property of the landowner.

Conditions

According to the Restatement of Torts standard, which is followed in many jurisdictions, there are five conditions that must be met for a land owner to be liable for tort damages to a child trespasser as a result of artificial hazards. The five conditions are:

  • The place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass, and
  • The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children,
  • The children, because of their youth, do not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area made dangerous by it
  • The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
  • The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children

(See Restatement of Torts §339)

While putting up a sign to warn children regarding the danger of the land may exempt the landowner from liability, it will not work in all situations.[citation needed] This is particularly true when the child cannot read the sign. Usually the landowner must take some more affirmative steps to protect children.

States that use the Restatement test include:

  • Alabama; adopted in 1976 case, Tolbert v. Gulsby
  • North Carolina
  • Ohio – see case: Bennett v. Stanley, 92 Ohio St.3d 35 (2001)[1]
  • Pennsylvania
  • Utah – see case: Pullan v. Steinmetz, 16 P.3d 1245 (2000)[2]
  • Wyoming – see case: Thunder Hawk By and Through Jensen v. Union Pacific R. Co, 1995 WY 32, 891 P.2d 773 (Wyo. 1995)[3]
  • Texas  – see case: "Texas Utilities Electric Co. v. Timmons, 947 S.W.2d 191 (1997)

There is no set cut off point that defines youth. The courts will evaluate each "child" on case by case basis to see if the "child" qualifies as a youth.

If a child of injured child's age is able to understand and appreciate the hazard, the doctrine of attractive nuisance will not likely apply.[4]

Under the old common law, the plaintiff (either the child, or a parent suing on the child's behalf) had to show that it was the hazardous condition itself which lured the child onto the landowner's property. However, most jurisdictions have statutorily altered this condition, and now require only that the injury was foreseeable.

References


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