Personal Injury

What is an Attractive Nuisance?

Reviewed by David Goguen, J.D., University of San Francisco School of Law
Property owners need to be aware of their potential liability for injuries suffered by child trespassers, especially if some aspect of the property could be considered an "attractive nuisance."

Longstanding legal principles in the U.S. recognize the duty that landowners owe to people on the property, especially when it comes to invited guests, delivery persons, and other authorized visitors. In a nutshell, a property owner's negligence could lead to liability for a visitor's injuries (in a slip and fall accident, for example). But many property owners are surprised to learn that they may also have a legal obligation to known trespassers, especially children who could be drawn to the property because of the presence of an "attractive nuisance." Read on to learn more.

Premises Liability Basics

If you are a landowner or homeowner, you must exercise a certain amount of care to ensure that your property is safe, so that visitors aren't injured by unreasonably dangerous conditions and known (or sometimes even unknown) hazards. The level of care that's required often depends on the visitor's legal status and other particulars of the circumstances. This intersection of property law and personal injury is known as premises liability.

Is There a Legal Duty to Trespassers?

A property owner's liability for trespasser injuries is very limited. In most instances, you only need to refrain from intentional or reckless conduct that is likely to result in an injury -- you can't set traps meant for trespassers, for example. But if the trespasser is a child who wanders onto your property without your permission, your potential liability for injury may be different, especially if children are known to come onto your property without permission, and if something on your property could be categorized as an "attractive nuisance."

"Attractive Nuisance" Defined

Children are naturally playful and curious. While their judgment skills are still developing, they do not always appreciate dangers. The law recognizes this, and provides special protection for child trespassers.

If you permit an artificial hazard to exist on your property, you may be liable if a child is hurt while playing on or around it. These artificial hazards are known as "attractive nuisances" because they are so alluring that children may trespass onto your private property to get near them, even while not understanding the dangers involved.

Examples of attractive nuisances include:

  • an unfenced/unsecured swimming pool
  • stacks of building materials
  • wells
  • non-operating motor vehicles
  • old appliances (like refrigerators), and
  • heavy machinery.

Naturally-occurring hazards such as ponds, lakes or steep embankments aren't typically considered attractive nuisances.

Does the "Attractive Nuisance" Doctrine Apply?

There are a few common factors that determine whether a property owner is liable for a child trespasser's injuries under the "attractive nuisance" doctrine. These include:

  • whether the property owner actually knew -- or whether a reasonable person would have know of -- the presence of the artificial condition or hazard on the land
  • whether the artificial hazard is one that you knew -- or had reason to know -- children were likely to visit
  • whether the dangerousness of the hazard would be obvious to trespassing children
  • whether you exercised reasonable care to eliminate the danger so as to protect child trespassers (posted signs, erected fences, installed locks, etc.) and
  • the age of the child (when compared with a younger child, teenagers are typically entitled to less protection under the "attractive nuisance" doctrine, since they can better recognize the dangers of an artificial hazard, especially if the teenage trespasser jumped a fence or broke a lock to get to the hazard).

Adults usually do not benefit from protection under the "attractive nuisance" doctrine. However, if an adult suffers an injury while rescuing a child from a danger created by an artificial hazard on your property, the doctrine may be used to hold the property owner responsible for any injuries to both child and adult.

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