Even if you have never heard of an attractive nuisance, you will likely understand the concept. The law generally holds that a property owner who has a condition on his property likely to attract children will be held liable for injuries to children on his property — even if the child was trespassing. It’s commonly thought of in terms of construction projects or swimming pools but can really extend to a lot more and it is something every homeowner needs to be aware of. If you are found to have an attractive nuisance on your property that results in injury, your personal liability insurance will be required to pay claims on your behalf.
The doctrine of attractive nuisance is simple in that children are easily enticed by certain types of conditions on a property. For example, everyone can envision that neighborhood children will be interested in a swimming pool or jungle gym play set. However, have you considered that children may also find an active construction site with equipment, mounds of dirt, old furniture, abandoned appliances and the like to all be attractive nuisances?
It may be difficult to predict what will appeal to a child, but one way to consider what is an attractive nuisance is to determine if it is a natural or manmade condition. Certainly anything that you have created can be easily found to be your responsibility and also likely to interest children. What might be more difficult to discern are those natural conditions that exist on your property. For example, is a small lake or stream running through your property something that can be considered an attractive nuisance? If so, are you then obligated to take the necessary steps to prevent access? These issues are often grey areas with no specific answer. However, if you do have some degree of prior knowledge or information that shows children are drawn to the condition, you will have much less ability to defend yourself in the event of a claim.
As a responsible homeowner, you will need to take all necessary steps to either remove the attractive nuisance or prevent access to it. In certain situations, this is as simple as a wall or fence. As an example, in most jurisdictions, building codes require yards with swimming pools to have walls of a certain height to prevent easy access. In other situations, the efforts to bar entry and access may be much more difficult. However, the difficulty of preventing access is not an acceptable defense in the event of an injury claim.
One thing that you should always keep in mind is that the attractive nuisance doctrine generally applies to children. The standard of care requires understanding what level of understanding there is of the danger on the part of the child. If the child were considered old enough to understand and be able to reasonably evaluate the potential danger, the attractive nuisance doctrine would then not hold. On the other hand, if the child is too young to fully appreciate the potential danger, you would likely be found liable for any injuries as a result of the attractive nuisance.
As a property owner, it is important that you understand the potential risks you face as a result of the attractive nuisance doctrine and take the necessary steps to prevent access and injuries no matter what city you live in – Phoenix, Portland, Raleigh, Sacramento, San Antonio, etc.