Attractive nuisance doctrine
Encyclopedia
In the law
of torts, the attractive nuisance doctrine states that landowner
may be held liable for injuries
to children trespass
ing 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
, trampoline
s, and swimming pool
s. However, it can be applied to virtually anything on the property of the landowner.
to be liable for tort damages to a child trespasser as a result of artificial hazards. The five conditions are:
(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. 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:
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.
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.
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
of torts, the attractive nuisance doctrine states that landowner
Land tenure
Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land . The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants...
may be held liable for injuries
Injury
-By cause:*Traumatic injury, a body wound or shock produced by sudden physical injury, as from violence or accident*Other injuries from external physical causes, such as radiation injury, burn injury or frostbite*Injury from infection...
to children trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
ing 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
Automobile
An automobile, autocar, motor car or car is a wheeled motor vehicle used for transporting passengers, which also carries its own engine or motor...
, piles of lumber
Lumber
Lumber or timber is wood in any of its stages from felling through readiness for use as structural material for construction, or wood pulp for paper production....
or sand
Sand
Sand is a naturally occurring granular material composed of finely divided rock and mineral particles.The composition of sand is highly variable, depending on the local rock sources and conditions, but the most common constituent of sand in inland continental settings and non-tropical coastal...
, trampoline
Trampoline
A trampoline is a device consisting of a piece of taut, strong fabric stretched over a steel frame using many coiled springs. People bounce on trampolines for recreational and competitive purposes....
s, and swimming pool
Swimming pool
A swimming pool, swimming bath, wading pool, or simply a pool, is a container filled with water intended for swimming or water-based recreation. There are many standard sizes; the largest is the Olympic-size swimming pool...
s. 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 ownerProperty
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
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 harmBodily harmBodily harm is a legal term of art used in the definition of both statutory and common law offences in Australia, Canada, England and Wales and other common law jurisdictions. It is a synonym for injury or bodily injury and similar expressions, though it may be used with a precise and limited...
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 careDuty of careIn tort law, a duty of care is a legal obligation imposed on an individual requiring that they adhere to a standard of reasonable care while performing any acts that could foreseeably harm others. It is the first element that must be established to proceed with an action in negligence. The claimant...
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. 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 CarolinaNorth CarolinaNorth Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...
- OhioOhioOhio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...
– see case: Bennett v. Stanley, 92 Ohio St.3d 35 (2001) - PennsylvaniaPennsylvaniaThe Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
- UtahUtahUtah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...
– see case: Pullan v. Steinmetz, 16 P.3d 1245 (2000) - WyomingWyomingWyoming is a state in the mountain region of the Western United States. The western two thirds of the state is covered mostly with the mountain ranges and rangelands in the foothills of the Eastern Rocky Mountains, while the eastern third of the state is high elevation prairie known as the High...
– see case: Thunder Hawk By and Through Jensen v. Union Pacific R. Co, 1995 WY 32, 891 P.2d 773 (Wyo. 1995) - TexasTexasTexas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...
– 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.
Under the old common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
(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.