Dangers to Children: What Is an Attractive Nuisance?
An "attractive nuisance" is something on your property that draws children in but threatens them with harm. These types of things can be considered a premises liability. A premises liability is when you allow a dangerous condition to occur on your property. These are under the umbrella of personal injury law.
The law places a special responsibility on you to take steps to protect children who may come onto your property. This duty is generally called the "attractive nuisance doctrine."
Typically, the attractive nuisance doctrine has three components:
- The law doesn't expect children to fully comprehend the dangers they may face.
- If you think children might come onto your property, the law places a special responsibility on you to prevent harm.
- If you fail to meet this responsibility, you will most likely be held liable for the child's injuries.
Are Children on Your Property Trespassing?
Yes. Trespassing children would be any minors that come onto your property uninvited. However, the law will likely punish you if they get hurt, instead of treating them like a trespasser. This is because minors tend to get special care under the law.
Child trespassers on a landowner's property can be frustrating. If they get hurt, you can be the one in trouble. If you discover kids on your property, you have to provide "reasonable care."
To do this, you should immediately:
- Help kids if they have already been hurt
- Warn kids of dangerous conditions ("That pool is uncovered and you could fall in")
- Ask them to leave or lead them off the property
- Talk to their parents if possible (you should not admit fault but you can ask them to stop their kids from coming back)
How Can I Tell What's a Common Attractive Nuisance?
An attractive nuisance is something interesting that would entice a child into entering another's property. Although this may sound very broad, most courts limit this considerably.
For instance, many courts require that the object be man-made, and many require that you "maintain" the nuisance to be liable.
Non-Maintained Attractive Nuisances (Not Liable)
Non-maintained items that are not legally attractive nuisances are:
- Small things that can be choking hazards (acorns, sticks, etc.)
- Carbon monoxide poisoning in a house or shed (unless you do not have a detector in your home)
- Smoke inhalation (unless you do not have a working smoke alarm)
- Trees that people fall out of (however, old trees that fall on someone could be)
- Parts of your house or tree limbs that cause head injuries
Take reasonable precautions to keep everyone safe. If there is an alarm you need to maintain, make sure you do so. Not keeping up with alarms and batteries can put everyone at risk. If you have an alarm that malfunctions during a fire or carbon monoxide poisoning, then the alarm company may be liable instead of you.
Apparent Dangers (Not Liable)
Also, most courts understand that small children can hurt themselves on virtually anything. The law generally presumes that children understand some dangers, such as:
- Falling from a great height
- Open pits
- Touching fire
- Sharp objects
- Hot water
- Approaching a wild animal on your land
- Approaching an angry fenced or leashed animal (i.e., a bucking horse)
If a child is too young to understand these risks, they should be supervised by a parent or guardian. The guardian is responsible for taking reasonable steps to keep them off your property or away from safety risks.
What Are Some Typical Attractive Nuisances?
Typical attractive nuisances that can make a homeowner responsible for injuries include:
- Swimming pools
- Tree houses
- Machinery (lawnmowers, gasoline pumps, etc.)
- Dangerous animals
- Paths and stairs
- Broken gates or safety gates
*Attractive nuisances can also take less obvious forms, such as a rooftop. You may be liable if:
- It's known that the local children climb onto roofs
- Your roof is easily accessible
- You've taken no steps to keep the children away
Each case will be carefully examined to decide if you are responsible or not. This can be a grey area and outcomes can be hard to predict, so take extra precautions when it comes to attractive nuisances.
Who Is Protected From Attractive Nuisances?
What constitutes a "child" differs from court to court. Keep in mind that teenagers or people under 18 may still be considered children in many courts. Attractive nuisance liability is not limited just to very young children.
How Can I Protect Myself From Liability?
There are three main ways to protect yourself:
- Take precautions
- Follow local laws
- Use good judgment
1. Tips for Taking Precautions
You are never required to childproof your property. However, taking some basic actions to prevent injury goes a long way toward avoiding liability. Courts tend to punish people who didn't seem to care or put any effort into encouraging safety.
If you can list the steps you took to prevent injury, many courts will be satisfied, even if they didn't ultimately work.
Examples of steps to take for pool owners include:
- Building a fence around the pool
- Installing an alarm system or floodlights around your pool
- Keeping water rescue equipment nearby
- Owning a first aid kit
- Inspecting the area for slip hazards
- Storing pool chemicals safely
2. Tips for Following Attractive Nuisance Laws
Read and follow your state and local laws. If they are confusing or hard to understand, call up an attorney or insurance agent. Your insurance agent will usually have a list of potential items that may be attractive nuisances on your property and have advice for protecting yourself.
There are inevitably a host of local regulations that govern almost any potential attractive nuisance (such as pools). Showing a court that you were abiding by the local law can be decisive in most cases.
3. Tips for Good Judgment on Attractive Nuisances
Always use common sense and good judgment. You cannot be too careful about protecting yourself from blame.
If you see children interested in something on your property, that alone can trigger liability. People could prove that you're aware the children are interested. If you notice local kids showing interest in something, you can:
- Lock it up
- Fence it up
- Keep it in a shed
- Warn them to stay away (i.e., saying "my horses are not friendly")
- Talk to their parents (i.e., saying "your kids can pet my dogs, but only when I am present")
Do whatever you can to warn children or keep the item of interest out of their reach. Document everything you have done.
You can also look out for children in your neighborhood by reporting any obvious dangers to the property owner and your local authorities if need be.
Signs Will Not Usually Protect You in Court
Warning or safety signs are helpful but generally won't save you by themselves. You must take steps to prevent the children from gaining access to an attractive nuisance.
Is There an Attractive Nuisance on Your Property? Get Legal Help Today
Children are particularly drawn to things like swimming pools, tunnels, machinery, and other potentially dangerous items.
If you forget to secure these types of items, and a neighboring child's curiosity leads to injury (or worse), you may be subject to legal action. If you have questions or concerns, consider speaking with a local real estate attorney.