Diving Deep Into The Attractive Nuisance Doctrine: Answers To The Most-Asked Questions

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One frequently misunderstood aspect of premise liability lawsuits is the attractive nuisance doctrine. This is because, in general, homeowners don't owe trespassers any special consideration. A person who was not invited onto the property and is hurt by something in the area typically won't be able to recover damages for their injuries. However, the law makes an exception for trespassing children who access something on the property that is commonly attractive to kids, such as pools. Here's more specific information about the law that may help you with your case.

What are the Elements of an Attractive Nuisance Claim?

For a plaintiff to win a case against the defendant using the attractive nuisance doctrine, he or she must adequately prove eight things are true:

If the plaintiff is unable to prove one or more of these elements, he or she won't prevail in court using this doctrine, though there may be enough evidence to hold the defendant liable using other legal theories, such as negligence. For instance, if the defendant installed a fence around a pool to prevent access but the child found a way to scale the fence, the homeowner may not be liable for the child's injuries since he or she took reasonable precautions to keep kids out.

Do All Conditions on the Property Apply?

It's commonly believed the attractive nuisance doctrine covers all the dangers on the homeowner's property. This is not true. The homeowner can only be held liable for injuries children sustained from artificial conditions, such as pools, irrigation pipes, and playground equipment. Homeowners are not required to take special precautions with things that exist naturally on the property and were not altered by them, such as lakes, rocks, and trees.

Additionally, homeowners may escape liability for harm caused by artificial conditions if the danger inherent in it was obvious, open, and apparent to a reasonable person (or reasonable child in this case). For instance, some playground equipment may fall into this category, especially if it's something the child has used previously.

At What Age Do Kids Become Ineligible for the Doctrine?

This is a challenging question to answer, because any minor person 17 years of age or younger is technically considered a child. Due to this, the judge or jury will decide if the injured party qualifies as a child under this doctrine based on whether the person had the experience, maturity, and cognitive ability to understand and appreciate the dangers posed by the artificial condition.

This can vary from situation to situation. A 6-year-old may not realize how dangerous it is to be in a pool alone, but a 14-year-old teen may be seen as being capable of knowing and understanding the risks.

Judges have even been known to include 17-year-olds under this law. In one case, two teens of this age were injured when they climbed on top of a rail car and touched the caternary wires. The judge opined the teens were old enough to know the dangers of touching electrical wires but not experienced enough to thoroughly understanding how the wires worked or that they were always live. Thus, it was entirely possible the teens could be covered by the attractive nuisance doctrine since it's a well-known fact teens brains haven't fully matured by that age.

For more information about the attractive nuisance doctrine or help litigating a premise liability lawsuit, contact a personal injury attorney.