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

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:

• The child was trespassing according to the legal definition
• The defendant owned or was legally responsible for the premises
• There was an artificial condition on the property the defendant knew—or should have known—would be attractive to children
• The defendant was aware or should have been aware the artificial condition posed a risk to children
• The child was too young to understand the risks of engaging with the artificial condition
• The harm the artificial condition could do to children was greater than the burden of minimizing or reducing the risk it posed
• The defendant failed to take reasonable care to eliminate the risk or danger
• The defendant's negligence was the proximate cause of the child's injuries

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.