We've all heard a story like this—a small child climbs a sand pile or wanders into a swimming pool, attracted simply by curiosity. Unfortunately, in many of these instances, all does not end well. The sand pile may collapse in on the child, or the child may not know how to swim.
Under the law, these types of conditions are typically known as "attractive nuisances." This blog sets forth the conditions under which a landowner may be liable for damages for an attractive nuisance.
The Elements of an Attractive Nuisance
Though the laws are somewhat different from state to state, there are typically five conditions that must be present for a property owner to be held responsible under a theory of "attractive nuisance":
- The area where the "attractive nuisance" exists is one that the landowner knows or has reason to know is easily accessible to children
- The landowner either knows or should reasonably know that the "attractive nuisance" poses an unreasonable risk of serious bodily harm or even death to a child
- The injured child either lacks the ability to understand the risk or the ability to discover the "attractive nuisance"
- The benefit to the landowner in keeping the "attractive nuisance" or the burden of removing it is slight compared to the degree of risk of injury to a child
- The property owner failed to act reasonably to either alleviate the risk or take action to protect children who might come in contact with the "attractive nuisance."
Under a theory of attractive nuisance, a landowner has liability whether a child is on the property by invitation or as a trespasser. In addition, posting a "No Trespassing" sign will likely not exonerate the landowner, if the property owner knows or has reason to know that children who cannot read will trespass on the property.
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