If you've ever cared for a toddler or young child for more than a minute or two, you've probably noticed that they seem to be drawn like magnets to potential hazards. Children's well-known propensity for putting themselves in harm's way is at the heart of attractive nuisance laws, which strive to protect our smallest humans from their own curiosity.
An attractive nuisance is an object, structure or condition that is both dangerous and irresistibly inviting or intriguing to children. Under attractive nuisance law, a landowner can be held responsible if a child is injured by an "artificial condition" on the landowner's property and all five of the following criteria are met:
- The landowner knows (or should know) that children are likely to trespass on the property.
- The condition on the property has the potential to cause death or serious bodily harm to children.
- The children involved are too young or inexperienced to understand the risk presented by the condition.
- The benefit of maintaining the condition or the cost required to remedy the condition is minimal compared with the risk to children.
- The landowner fails to take reasonable measures to eliminate the danger posed by the condition.
Courts apply these principles on a case-by-case basis, so the same condition considered an attractive nuisance in one case or by one court may not be in another.
Confused yet? We'll try to clear things up. Read on to learn the origins of attractive nuisance laws and see examples of the 10 most common attractive nuisances.
Railroads -- The Nuisance that Started it All
Railroads played a major role in the creation of attractive nuisance laws. In fact, the very notion that a landowner could be held responsible for injury to a trespassing child was first referred to as the "turntable doctrine," named for the large railroad turntables central to the first cases of this type.
The first turntable case involved a child named Henry Stout, who was 6 years old when his foot was crushed between a revolving turntable and the end of the iron rail on the main railroad track as he attempted to climb onto the turntable [source: Greenwood]. The name "attractive nuisance" can itself be traced to another turntable case, in which the court deemed a railroad turntable so attractive to children that its presence was equivalent to an express invitation onto the land.
In each case, the court ruled in favor of the child, reasoning that the landowners knew the turntables were dangerous and irresistibly alluring to children, yet failed to "attend, guard, fasten or lock" them in any way.
In 2006, the U.S. District Court for the Eastern District of Pennsylvania awarded $24.2 million to two 17-year-old boys who suffered severe electrocution burns after climbing to the top of a parked freight car, finding that the boys were still "children of a tender age," and that both the owner of the property (Amtrak) and the owner of the freight car (Norfolk Southern) were at fault for parking a tall freight car with a clearly visible ladder under energized power lines [source: Duffy].
Swimming pools, as appealing and potentially dangerous as they are to children, have been the focus of many attractive nuisance cases. The absence of a secure fence and the presence of additional temptations such as slides or diving boards can make it harder for property owners to avoid liability, especially if the pool is in an area where children are known to play.
In one case, a Georgia court ruled that homeowners could be held accountable for the drowning death of a 2-year-old boy in their swimming pool, even though all parties agreed that the child was not invited onto the property [source: Gregory et al. v. Johnson et al.]. In that instance, the court cited the lack of any fence or other enclosure, the pool's "playground-type slide on an open lot" and the property's close proximity to an elementary school as factors in its decision.
In another Georgia case, the family of a 4-year-old girl was permitted to continue its wrongful death suit against an apartment complex after the court heard evidence that the pool area was fenced, but not securely gated, allowing children easy access to the pool area [source: Lofton v. Heritage Realty Company et al.].
Property owners do sometimes prevail in swimming pool cases, usually when they are able to show that trespassing children gained access to pool areas despite the owners' best efforts to keep them out with high, secure fences and locked gates.
With their big yellow machines, giant piles of dirt, rock and lumber, and secret hiding places galore, it's no wonder that construction sites make the list of most common attractive nuisances.
Attractive nuisance cases involving construction sites have included:
- Falls through holes in unfinished second floors
- Injuries sustained on heavy equipment parked at construction sites
- Injuries caused by falling piles of lumber, stone or sheetrock
- Injuries or drowning deaths following falls into trenches, pits and even dumpsters
In some cases, courts have ruled that construction sites are immune from attractive nuisance laws, siding with the builders and construction companies who contend that their business need for maintaining temporarily hazardous conditions and the cost of securing or removing those conditions outweigh the potential risks involved.
More recent cases have overturned those rulings, arguing that the attractive nuisance doctrine gives builders an incentive to minimize dangers to children, and that construction sites should be evaluated on a case-by-case basis according to the same five principles applied to any attractive nuisance case.
Power Lines and High-Voltage Towers
High-voltage lines and towers are everywhere. Many of us remember our parents' warnings to obey the familiar red and black "KEEP OUT" signs and steer clear of both the towers and the fences that surround them.
Attractive nuisance cases involving power lines have historically focused on the age of the trespassing child and his or her ability to understand the danger presented by electrical wires or towers.
Generally speaking, the courts have ruled that children old enough to scale a fence, climb a tower or otherwise gain access to a secured area are also old enough to understand the potential danger and are therefore not protected by the attractive nuisance doctrine.
Manmade Ponds, Lakes and Fountains
One of the underlying assumptions of the attractive nuisance doctrine is that the dangerous condition in question must be artificial or manmade, therefore natural features such as ponds, lakes and hills are typically exempt from attractive nuisance law.
In many cases, artificial water features benefit from their resemblance to the real thing, as courts have ruled that lakes and ponds -- even artificial ones -- are dangers that children should reasonably understand.
Children love to climb into small spaces. Unfortunately, their love of hide and seek, combined with the increasing popularity of refrigerators, chest freezers, dryers and other large appliances, created a common and often deadly hazard for children in the early to middle decades of the 20th century.
Happily, instances of suffocation have sharply declined thanks to laws enacted to protect children from becoming trapped in household appliances. For example, any refrigerator built after 1958 is required to be capable of being opened from the inside, and most municipalities have long required that doors or lids be removed from appliances before they're discarded. Yet older refrigerators are still out there -- many of them in barns, garages or fields where children can easily stumble upon them -- and sadly these cases can and do still occur.
Like a refrigerator or other large appliance, a parked car is both an inviting and extremely hazardous spot for a game of hide and seek. The engine and wheels add another level of danger, and many children have been pinned or otherwise injured as they try to escape a rolling car after accidentally setting it in motion.
Courts have been reluctant in some cases to rule against the owner of the car (or the owner of the land on which it is parked), reasoning that the car itself poses no unique or unusual danger; instead the danger is created by the deliberate action of a minor child who climbs inside and, in some cases, turns a key. But given the very real potential for serious injury and even death in accidents involving parked or abandoned cars, the best defense is to prevent incidents in the first place. Keep the doors, hatches and trunks of parked cars locked at all times, with windows, sunroofs and convertible tops closed tightly, and instruct children never to play in or around parked cars.
A working farm, like a construction site, can be a source of endless wonder and interest for a small child. Haylofts, grain bins, silos, tractors, and even abandoned trucks and cars are among the intriguing hazards that children might be tempted to explore.
In many farm cases, courts have weighed the burden to the farmer of removing the hazard against the potential risk to a child, finding, for example, that while it is probably reasonable to expect farmers to install and maintain an adequate fence, farmers should not generally be required to move farm equipment at the end of each day from its place of use to a locked barn or other secure location.
More than one family of an injured child has attempted to apply the attractive nuisance doctrine to horses or other livestock encountered on a farm, but courts have largely refused to classify a living thing (or the barbed wire fence keeping it in) as an attractive nuisance.
Holes in the Ground
Drainage ditches, excavation trenches, sewer drains, wells, cisterns, holding tanks, quarries and other open pits have all been the focus of attractive nuisance cases over the years. The courts generally view these hazards as a distinct subset, separate from natural and artificial lakes, ponds or retention basins.
In one case in Kansas City, Mo., a 6-year-old boy drowned after falling into a settlement tank that was part of the sewage treatment facility in the mobile home park where he lived [source: Delaware Law Weekly]. The court ruled for the family of the boy, finding that although there was a high fence around the tank, the property owner had stacked a pile of cinderblocks against the fence in stairway-like fashion, creating an easy means of access for even a small child. Inside the fence, the tank itself was entirely uncovered and "resembled a swimming pool" 25 feet (7.6 meters) long, 11 feet (3.4 meters) wide and 7.5 feet (2.3 meters) deep.
Stuff to Play On
Even structures designed for kids can be, well ... dangerous for kids.
Skateboard ramps, trampolines, jungle gyms, playsets and tree houses are among the seemingly kid-friendly types of apparatus that can be classified as attractive nuisances, particularly if they are accessible to children younger or less experienced than their intended users.
In 2009, a Connecticut jury awarded $73,530 in damages to a minor child who was injured when he rode a scooter on a skateboard ramp at the defendant's home [source: Connecticut Law Tribune]. In that case, the court found that the defendant family's habit of leaving scooters adjacent to the skateboard ramp qualified as an attractive nuisance, since the family knew that their children's friends used the ramp and should have foreseen that the location of the scooters near the ramp would create a dangerous condition.
For more on legal matters and related topics, take a look at the next page.
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More Great Links
- American Bar Association. "Guide to Home Ownership." Three Rivers Press. 1995. (Nov. 7, 2011) http://www.abanet.org/publiced/practical/books/home_ownership/chapter_5.pdf
- American Law Institute. Restatement (Second) of Torts § 339. 1965.
- Bennett v. Stanley, 92 Ohio St. 3d 35. Ohio Supreme Court. 2001. (Nov. 7, 2011) http://scholar.google.com/scholar_case?case=3825665364370391844
- Bennett v. Stanley, 92 Ohio St. 3d 35. Ohio Supreme Court. 2001. (Nov. 7, 2011) http://scholar.google.com/scholar_case?case=3825665364370391844
- Connecticut Law Tribune. "Minor Injured On Skateboard Ramp Alleged Attractive Nuisance." May 18, 2009.
- Crawford v. Pacific Western Mobile Estates, Inc., 548 S.W.2d 216 Missouri Court of Appeals, Kansas City District. 1977. (Nov. 7, 2011) http://scholar.google.com/scholar_case?case=9425494486556031955
- Delaware Law Weekly. "Wrongful Death Child Trespasser Irrigation Pond Attractive Nuisance Doctrine." Oct. 4, 2006.
- Duffy, Shannon P. "17-Year-Old Trespassers May Use Attractive Nuisance Argument." The Legal Intelligencer. April 11, 2006. (Nov. 7, 2011)http://www.law.com/jsp/pa/PubArticlePA.jsp?id=900005548604&slreturn=1&hbxlogin=1
- Greenwood, Richard Glenn . "Current Attractive Nuisance Cases in Wisconsin and Other Jurisdictions." Marquette Law Review. Vol. 42, Issue 1. pp. 64 to 83. 1958. (Nov. 7, 2011) http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=2887&context=mulr
- Featherstone v. Berg, 28 Utah 2d 94, 498 P.2d 660. 1972. (Nov. 7, 2011) http://scholar.google.com/scholar_case?case=616593931239554347
- Garrett v. Arkansas Power & Light Co., 237 SW 2d 895. Supreme Court of Arkansas. 1951. (Nov. 7, 2011)http://scholar.google.com/scholar_case?case=11327494173353827217
- Gregory et al. v. Johnson et al. 162 Ga. App. 191. 290 SE2d 560. 1982. (Nov. 7, 2011)http://scholar.google.com/scholar_case?case=17230377146644455155
- Keefe v. Milwaukee & St. Paul Railway Co., 21 Minn. 207 1875.
- Kessler v. Mortenson, 16 P. 3d 1225. Utah Supreme Court. Dec. 5, 2000. (Nov. 7, 2011)http://caselaw.findlaw.com/ut-supreme-court/1023425.html
- Klein v. National Railroad Passenger Corp. 2: 04- CV- 00955. U.S. District Court, Eastern District of Pennsylvania. 2006. (Nov. 7, 2011) http://scholar.google.com/scholar_case?case=3101991194033906475
- Lofton v. Heritage Realty Company, 508 SE 2d 700. Georgia Court of Appeals. 1998. (Nov. 7, 2011)http://scholar.google.com/scholar_case?case=11272015908168395098
- McGaughey v. Haines, 370 P. 2d 120. Kansas Supreme Court. 1962. (Nov. 7, 2011) http://scholar.google.com/scholar?hl=en&as_sdt=2%2C11
- Motes v. Matthews, 497 So. 2d 1121. Supreme Court of Alabama. 1986. (Nov. 7, 2011) http://scholar.google.com/scholar_case?case=7460181404970917115
- Prosser, William Lloyd and W. Page Keeton. "Prosser & Keeton on Torts, 5th Edition." West Group. 1984.Railroad Company v. Stout, 84 U.S. 657. 1873.
- Taylor v. United Homes, Inc., 21 Utah 2d 304, 445 P.2d 140. 1968. (Nov. 7, 2011) http://scholar.google.com/scholar_case?case=12656467984676119104
- Taylor v. United States, 326 F. 2d 284. U.S. Court of Appeals, 4th Circuit. 1963. (Nov. 7, 2011)http://scholar.google.com/scholar_case?case=2572246147995585544
- U.S. Consumer Product Safety Commission. "CPSC Warns About Suffocation and Death of Children in Old Refrigerators." CPSC Document #5072. (Nov. 7, 2011)http://www.cpsc.gov/cpscpub/pubs/5072.html
- U.S. Consumer Product Safety Commission. "CPSC Warning: Freezer, Dryer, Cooler and Refrigerator Entrapment Deaths to Children." CPSC Document #5073. (Nov. 7, 2011)http://www.cpsc.gov/cpscpub/pubs/5073.html