Attractive nuisance doctrine
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|Liability and remedies|
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The attractive nuisance doctrine applies to the law of torts, in the United States. It states that a landowner may be held liable for injuries to children trespassing on the land if the injury is caused by an object on the land that is likely to attract children. The doctrine is designed to protect children who are unable to appreciate the risk posed by the object, by imposing a liability on the landowner. The doctrine has been applied to hold landowners liable for injuries caused by abandoned cars, piles of lumber or sand, trampolines, and swimming pools. However, it can be applied to virtually anything on the property of the landowner.
There is no set cut off point that defines youth. The courts will evaluate each "child" on case by case basis to see if the "child" qualifies as a youth.
If it is determined that the child was able to understand and appreciate the hazard, the doctrine of attractive nuisance will not likely apply.
Under the old common law, the plaintiff (either the child, or a parent suing on the child's behalf) had to show that it was the hazardous condition itself which lured the child onto the landowner's property. However, most jurisdictions have statutorily altered this condition, and now require only that the injury was foreseeable by the landowner.
According to the Restatement of Torts standard, which is followed in many jurisdictions, there are five conditions that must be met for a land owner to be liable for tort damages to a child trespasser as a result of artificial hazards.
- The landowner knows children are around who might trespass.
- The landowner knows children will be at risk of injury if they trespass.
- That children are too young to recognize the risk.
- The landowner can fix the problem at a reasonable cost.
- The landowner does nothing.
- The place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass, and
- The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children,
- The children, because of their youth, do not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area made dangerous by it
- The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
- The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children
(See Restatement of Torts §339)
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Posting a sign to warn children regarding the danger on the property will not work when the children harmed are too young to read or comprehend it. It will only exempt the landowner from liability when it is clear that the injured child could read the sign. Usually the landowner must take some more affirmative steps to protect children.
States that use the Restatement test include:
- Alabama; adopted in 1976 case, Tolbert v. Gulsby
- North Carolina
- Ohio – see case: Bennett v. Stanley, 92 Ohio St.3d 35 (2001)
- Utah – see case: Pullan v. Steinmetz, 16 P.3d 1245 (2000)
- Wyoming – see case: Thunder Hawk By and Through Jensen v. Union Pacific R. Co, 1995 WY 32, 891 P.2d 773 (Wyo. 1995)
- Texas – see case: Texas Utilities Electric Co. v. Timmons, 947 S.W.2d 191 (1997)
- Cotten, Doyice; Wolohan, John T. (2003). Law for Recreation and Sport Managers. Kendall/Hunt Publishing Company. pp. 208–. ISBN 9780787299682. Retrieved 9 November 2014.
- Holland V. Baltimore & Ohio Railroad Co. 431 A.2d 597 (D.C. 1981).
- Text of opinion from Ohio Supreme Court's web site
- Text of opinion from Utah Supreme Court's web site
- Text of opinion from Wyoming State Law Library