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    What Is an ‘Attractive Nuisance’ under Tort Law?

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What Is an ‘Attractive Nuisance’ under Tort Law?
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An attractive nuisance, in a premises case, is a situation where you have, for example, a railroad with a turnstile that looks like a merry-go-round, and kids may want to play on that turnstile. That might be deemed an attractive nuisance to those kids. And, if there’s a big gaping hole in the train yard fence, the kids will go through that little hole and go and play on that turnstile. Well, suppose a little kid goes and plays on that, even though it says “No Trespass” everywhere since that nuisance is way attractive to a little kid, and he cuts his foot off in that turnstile.

Video Transcript

“0:00 What is unattractive nuisance? Under tort 0:02 law an attractive nuisance is a 0:05 situation where you have for example a 0:10 railroad with a turnstile that looks 0:13 maybe like a merry-go-round and kids may 0:16 want to go play on that turnstile. That 0:18 might be deemed an attractive nuisance 0:20 to those kids. And if there’s a big 0:23 gaping hole in the fence at the train 0:25 yard, then the kids are going to go 0:27 through that little hole and go play on 0:30 that turnstile. Well, if a little kid goes 0:32 and plays on that even though it says no 0:34 trespass, where since that nuisance was 0:36 obviously attractive to a little kid, and 0:39 he cuts his foot off in that turnstile, 0:41 the law will allow the parents of that 0:44 child to sue the railroad yard under 0:47 attractive nuisance under many States 0:49 laws. “

In that case, the law will allow that child’s parents to sue the railroad yard under “attractive nuisance” under many states’ laws. Premises liability are laws that hold property owners responsible for injuries sustained by visitors on their premises. Visitors are often classified into invitees, licensees, and trespassers. The property owner’s duty of care toward the visitors depends on the status of the visitors. A property owner has a higher duty of care towards invitees and licensees than trespassers.

However, when the property owner knows that a trespasser is on their property, they must warn them of such hazards. Under the attractive nuisance doctrine, property owners owe child trespassers a higher duty of care. Let’s go over the doctrine with Ehline Law and our personal injury attorneys.

Basic Premises Liability Law

Any injuries sustained by visitors on the premises will hold the property owner liable for the damages arising from the accident.

The property owner’s liability depends on certain factors, including:

  • Status of the visitor
  • Facts surrounding the injuries suffered.

To have a valid claim, the plaintiff must satisfy the following conditions:

  • The defendant is the property owner
  • The plaintiff was an invitee or a licensee
  • The defendant was negligent in maintaining the property.

In some premises liability cases, the property owner may also be responsible for injuries sustained on the public sidewalks in front of the property.

What Is an ‘Attractive Nuisance’ under Tort Law?

Property owners are responsible for any injuries sustained on their premises due to their negligence, and the liability depends on the state laws where the injury occurred.

The premises owner has the right to use, control, and dispose of their property. However, they must ensure that the property does not injure their neighbor, meaning that the property owners must exercise their legal rights so that it does not infringe upon the rights of others (Fleming v. Lockwood). The attractive nuisance doctrine is much different, and it holds the property owner responsible for injuries sustained by a trespasser. The doctrine creates an exception to the premises liability law, where the property owner does not owe any duty of care towards trespassers.

The doctrine mainly aims to protect children from the hazards on another’s property that may attract children. It recognizes that children may not be mature enough to understand the dangers present or the risks on another’s property. Under the attractive nuisance doctrine, the property owner is responsible for any injuries sustained by trespassing children if the injuries directly result from the hazards or the risks on the property that attract children.

For example, swimming pools are a hazard for children without supervision, and it is also something that may attract curious children to another’s property. Under the doctrine, the landowner must ensure sufficient barriers around the swimming pool to prevent curious children from entering and jumping into the pool. If a child drowns in an unguarded swimming pool at someone else’s property, the property owner will be responsible for the damages arising from such an incident.

Some examples of attractive nuisances are swimming pools, abandoned equipment, and building sites. However, lakes and other natural conditions are not considered attractive nuisances.

Origin of Attractive Nuisance Doctrine: R.R. Co. v. Stout

In 1869, a child was playing on an unlocked railroad turntable on a property in Nebraska owned by the Sioux City and Pacific Railroad. The child sustained foot injuries while playing on the turntable, prompting his father to sue the railroad company and take them to court in Nebraska.

The case reached Supreme Court, where the judge found that the railroad company was liable for injuries sustained by the child even though property owners are not liable for any injuries sustained by a trespasser under premises liability law. The apex court found that the defendant’s knowledge of the child playing on the unlocked turntable was adequate to constitute liability, even if the child was a trespasser.

The decision by the Supreme Court led to property owners having a duty of care towards trespassing children, and this theory was initially known as “turntable doctrine” before it became an attractive nuisance doctrine.

Elements of Attractive Nuisance Doctrine

The plaintiff must establish the following elements under the attractive nuisance doctrine:

  • The property had a condition or an instrument that could cause injury to anyone coming into contact with it.
  • The condition or the instrument was attractive to young children.
  • Due to their tender age, the plaintiff could not assess the danger involved.
  • The property owner left the condition or instrument unguarded, exposing it to curious children who might play with it.
  • It was feasible for the property owner to eliminate the hazard to prevent accidents.
  • The property owner failed to exercise reasonable care to eliminate the danger or failed to protect the children.

It is important to note that the doctrine only applies in the following circumstances:

  • In places where property owners can anticipate the presence of children
  • In situations where property owners can adopt protective measures that do not place a heavy burden on the property owners

It does not apply in the following cases:

  • Where the protective measures place a serious burden on the property owner
  • Where using the land is only dangerous to trespassers
  • The case is an exemption from the ordinary rules of negligence.

Most states have adopted the use of attractive nuisance doctrine in one form or the other. In contrast, some states have rejected the doctrine and instead use the dangerous instrumentality doctrine that does not require the condition to have an element of attraction.

Real Case Example: Jarvis v. Howard

The court must view the attractive nuisance doctrine on a case-by-case basis, meaning not all instruments, machines, equipment, or other objects constitute attractive nuisances, as seen in the Jarvis v. Howard case. In 1949, Donald Gene Jarvis sued James L—Howard for $5,000 in damages for injuries sustained by his child on the defendant’s property. The plaintiff, on the basis of the attractive nuisance doctrine, referred to the ramp as an attractive nuisance and that the defendant did not take any action or precaution to prevent young children from playing on the ramp.

The father testified that the ramp was about 25 feet in height, and there were no guard rails to prevent children from playing on it. When claiming attractive nuisance doctrine, the plaintiff must satisfy its elements. The evidence suggested that the school children stopped at a property on their way home and decided to play the game “Follow the leader” on the ramp, where the leader would do one daring act, and the others would follow.

The plaintiff’s child followed the leader, who jumped from the ramp into the coal cart but missed and fell, resulting in a broken leg. According to the attractive nuisance doctrine, the property owner with a condition or instrumentality that could attract young children is responsible for any injuries sustained by the trespassing children. However, not all conditions or instrumentality pose a threat to young children. The court found that the ramp, although attractive to a child, did not pose any danger to a child since it was nothing more than a platform.

According to the court, the ramp was similar to any other 25 feet structure from which a child could get hurt if they decided to jump. The court held that the standing ramp was not an attractive nuisance and gave the verdict in favor of the defendant.

Also, as testimonies suggested, the defendant took reasonable precautions in warding off mischievous children from the property. The defendant also hired a watchman to ensure that children do not trespass onto the property and play around.

Even if the ramp were an attractive nuisance, the court would not hold the defendant liable for injuries as they ensured reasonable precautions to prevent the children from playing on the property.

What Does the Court Consider When Evaluating Attractive Nuisance?

Here are a few things that the court considers when evaluating attractive nuisance:

  • Whether the landowner was aware that the hazard on their property could attract children
  • The type of hazard and whether it creates an unreasonable risk of death or serious bodily harm
  • Whether the children could understand the risk involved
  • What importance does the hazard hold to the property owner
  • Was the burden of eliminating the hazard much more than the risk it posed
  • Did the property owner take reasonable steps to eliminate the hazard or protect the children?

Precautions You Can Take to Protect Yourself from Liability

An attractive nuisance is any dangerous condition on a person’s property, and the risk involved may not be so apparent for children. Landowners are not responsible for dangerous natural conditions such as lakes or naturally steep banks. However, they are responsible for artificially dangerous conditions such as swimming pools, equipment, machinery, and abandoned sites.

Sometimes there may be hidden dangers that the landowners add to their property, such as man-made holes, hidden stairs, and equipment. In such cases, the danger is not apparent to the children, and interacting with them can cause harm. Property owners need to take reasonable care and safety measures to ward off or protect children from such dangers.

Under the doctrine, property owners are not required to ensure that their property is child-proof but make reasonable efforts to keep children away if they know that such dangers can attract children. If you have such hazards on your property, you must ensure fences and locks to keep children away.

If a child is on your property, you should order them to leave and inform their parents about the incident and the possible hazardous condition on the property that can harm children. Add signs on your property, as these can be helpful. However, some children may not be old enough to read, or some may even find the warnings an attractive nuisance.

It is essential to take steps to minimize the risks of accidents and take precautions to avoid attractive nuisance liability. Always use common sense and good judgment, as you don’t want to suffer legal consequences just because you didn’t try to prevent accidents.

You must also follow all state, and local laws, as an attorney can easily dig out statutes you didn’t follow to prove negligence against you. Letting the court know that you followed the laws and took reasonable precautions can prove that you were not negligent and tried to prevent a child’s injuries.

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Ehline Law and our personal injury attorneys have handled more than 3,000 personal injury cases and recovered over $150 million in compensation for injured victims.

If you suffered injuries in an accident that was not your fault, contact us at (833) LETS-SUE for a free consultation, as you may be eligible for compensation.

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Michael Ehline

Michael Ehline is an inactive U.S. Marine and world-famous legal historian. Michael helped draft the Cruise Ship Safety Act and has won some of U.S. history’s largest motorcycle accident settlements. Together with his legal team, Michael and the Ehline Law Firm collect damages on behalf of clients. We pride ourselves on being available to answer your most pressing and difficult questions 24/7. We are proud sponsors of the Paul Ehline Memorial Motorcycle Ride and a Service Disabled Veteran Operated Business. (SDVOB.) We are ready to fight.


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