What Is Considered an Attractive Nuisance?
If you have ever had a child wander onto your property because they are drawn to a potentially dangerous object, that object is considered an “attractive nuisance.” As a result, the law will require you to take the steps necessary to make sure that child or any others are not harmed. Should you fail to do so and a child is hurt, then you could be held liable.
An attractive nuisance is anything that may capture the interest of a child and attract the child to trespass onto land in order to investigate the object that is attracting them. An attractive nuisance is generally held as a condition of property that is not natural.
The Attractive Nuisance Doctrine
The term “attractive nuisance” was first used in a case in the 1840s that involved a railroad turntable. In that case, the court ruled that a railroad turntable was so attractive to children that its mere presence was like an invitation to enter the land and climb onto the turntable, and that the railroad company should have been aware of this.
The Attractive Nuisance Doctrine creates an exception to the rule that the owner of a piece of land or property does not owe any duty to a trespasser other than to refrain from willfully injuring them. This doctrine usually only applies to trespassing children who are enticed onto a landowner’s property by some attractive nuisance. Under this doctrine, the owner of the land or the premises owes the same legal requirements to the child as they would to a person they invite onto their premises. While the child may fall under the definition of a trespasser, the protections a landowner must provide them are different than what is required for an older person who is trespassing.
Over the years, the Attractive Nuisance Doctrine has been defined through a series of court cases. A particularly important case in 2001 determined that children are owed a different “duty of care” even if they are trespassing on a landowner’s property. While attractive nuisance lawsuits are often taken on a case-by-case basis, there are five main principles that a court will use in every situation to determine whether or not an object was an attractive nuisance:
- The owner of the land knows or should know that children are likely to enter or trespass onto their property.
- The owner of the land knows the object or condition on the landowner’s property could seriously harm or lead to the death of a child.
- The children who trespass are too inexperienced or too young to understand the consequences of their actions or the risk that they face.
- The cost to the landowner to fix the condition or the benefit of maintaining it is minimal compared to the risk it creates for children.
- The landowner fails to take reasonable steps to correct the condition and eliminate any dangers to children.
What Are Some Examples of Common Attractive Nuisances?
Remember that anything natural is not an attractive nuisance. So trees, lakes, rivers or creeks do not fall under the category of attractive nuisance. An attractive nuisance has to be something created artificially and maintained purposefully. Keeping that in mind, here is a list of some of the most common attractive nuisances that tend to tend to be cited by plaintiffs in lawsuits:
1. Swimming Pools
Swimming pools are probably the best-known attractive nuisance. If you have a swimming pool in your yard, especially one that contains a slide or a diving board, build a fence around it with a locked gate. If a child wanders into your backyard and drowns, you could be very liable. This is especially true if you live in a community with a lot of young children or near school.
Having a good lock is an essential part of protecting yourself against an attractive nuisance lawsuit. Merely building a fence around the pool will not be enough without a lock that cannot be opened by young children.
Homeowners will occasionally win attractive nuisance lawsuits that involve swimming pools, but only if they can show they took every effort possible to keep children out, such as erecting secure fences with locked gates.
Unprotected railroads and railroad turntables started the whole movement towards attractive nuisance laws. Before it was known as the Attractive Nuisance Doctrine, it was known as the “turntable doctrine” because the role these train turntables played in the first cases of this type.
3. Construction Sites
Children love trucks. They are also attracted to piles of rocks and dirt and the many secret hiding places that you can find on a construction site.
Some of the attractive nuisance cases that have centered on construction sites include:
- Falling through holes in unfinished construction
- Falling lumber, stones or sheetrock that cause injuries to children
- Children falling into pits, trenches or even climbing into dumpsters and drowning
There has been some back and forth over whether or not the owners of construction sites are immune from these laws because the cost of moving or securing these objects outweighed the dangers to children. However, courts have decided more recent cases in favor of the plaintiffs, and cases of children injured on construction sites often need to be decided on a case-by-case basis using the principles outlined above.
4. Artificial Ponds, Fountains and Lakes
This is where the element of artificially created comes into play. For instance, if you have a pond on your property, but you do not fence it off properly and a child trespasses, falls into the pond and drowns, you would probably be facing an attractive nuisance lawsuit.
It is a bit of a different case with larger bodies of water. Courts have tended to side with property owners, ruling that large artificial lakes and ponds resemble natural lakes and ponds, and children should be aware of the dangers of going too close.
5. Discarded Appliances
Old refrigerators, freezers, ovens or any other large appliance can provide attractive hiding places for children. While most municipalities in the 21st century require that if you are going to store any of these appliances on your property, then you need to remove the doors, people will occasionally forget to do so or have stored these items before many of the new regulations were brought into effect.
6. Abandoned Automobiles
Much like appliances, an abandoned or a parked car can provide an ideal hiding place in a game of hide-and-seek. The best protection is to make sure that your car is locked and any hatches or trunks are secured. Also, warn your children never to play in or around a parked car.
Other attractive nuisances include:
- Farm equipment
- Equipment like lawnmowers or gasoline pumps
- Unsecured animals
- Holes in the ground
- Power lines and high-voltage towers
- Items children can play on or in like trampolines, skateboards or treehouses
Is There an Age Limit to Children Who Trespass and Fall Under the Attractive Nuisance Doctrine?
While courts in Pennsylvania have ruled in favor of children as old as 17 in one attractive nuisance case, generally the law applies to any child 12 years old or younger. Regardless of how old the child is, however, plaintiffs need to prove the child in question was too inexperienced or young to understand or appreciate the risk involved in coming into contact with the artificial object or condition.
What Does a Plaintiff Need to Prove to Establish a Claim?
It is necessary for the plaintiff to show that the child’s youth and their mental development hindered them from realizing and appreciating the risks created and how dangerous it was to enter the area with the attractive nuisance.
The plaintiff also needs to prove that the defendant was aware of the risk to children, even if they were not explicitly warned so. If you have an unfenced swimming pool in a neighborhood crowded with young children, you cannot reasonably argue that you are unaware of the potential danger.
The plaintiff also needs to prove that the defendant had a benefit in keeping the artificial object or condition as a lawful use of their lands and that the costs of getting rid of the dangerous condition or object were minimal when compared to the danger and risk it created for children.
For example, suppose a farmer raised sheep and their property had an old dipping vat was once used to protect the sheep against diseases or insects. After building a new vat, the farmer had not used the old one for a couple of years. A child visiting the farm falls into the older dipping vat, which is now filled with rainwater or runoff, and drowns. It would have been easy and inexpensive for the farmer to seal or cover the vat. A court would no doubt find them liable.
Under the Attractive Nuisance Doctrine, the duties that the defendant owes to the plaintiff are very similar to the duties owed to people who are invited onto the land or into the premises. This means that the defendant is required to warn the person about, or eliminate, the dangers of the object or condition. Plaintiffs need to show that the defendant’s failure to meet these duties resulted in the plaintiff’s injury.
The statute of limitations in Pennsylvania for lawsuits that fall under the Attractive Nuisance Doctrine is two years from the date of the original incident.
How Does an Attractive Nuisance Affect My Homeowner’s Insurance Premiums?
The law considers an attractive nuisance to be something that is so enticing to children that they cannot resist coming on to your property and investigating the object. It could be a swimming pool, a water well, an animal, a piece of machinery or something less obvious, such as your roof. If your roof is easily accessible to children in the neighborhood, and you do not take steps to make it as safe as possible, there is a chance you could face liability should an accident occur.
If you have an attractive nuisance on your property, your insurance premiums are likely to be quite high. It is probably in your best interests to avoid them altogether. If you are thinking about getting a trampoline or a pool, for instance, you need to consider how it would affect your homeowner’s premium because it is likely to drive it up quite a bit.
If you decide to go ahead with building a pool, buying a trampoline or installing a playground for your children, especially if you live in a neighborhood with a lot of young children, your best bet is to raise your liability limit and think about investing in an umbrella insurance policy.
If you are thinking of purchasing a piece of land or a new property, take that extra step and find out about any possible attractive nuisances on the property. If they exist, repair, fix or remove them at once.
While you will not be required to “childproof” your property to eliminate the chances of an accident, there are some basic things you will be expected to do to make it safer. Many of these are simply common-sense steps that will likely shield you from liability.
For example, put away any machinery that could attract a child, such as a lawnmower. Make sure you have a secure fence around your pool so children will not be able to enter unsupervised. Always keep pets inside a securely fenced yard rather than allowing them to run free without someone watching.
KBG Injury Law Can Help If You Have Received an Attractive Nuisance Lawsuit
Many people are not aware that they may have a condition that creates an attractive nuisance on their property, and when an accident or tragedy results, they find themselves on the wrong end of an attractive nuisance lawsuit. If you are the subject of an attractive nuisance lawsuit, or if you would like some advice on how you should deal with any potential such condition on your property, let the experienced lawyers at KBG Injury Law help you.
Our team of knowledgeable attorneys can advise you on the best way to proceed and how you can best protect yourself from liability in these cases.
If you would like to come in for a free consultation, please call us at 1-800-509-1011 or visit our contact us page where you can leave us your contact deals and some information about your situation. A member of our team will get back to you as soon as possible.