Attractive Nuisance

Visitors to someone else’s property have a responsibility to take reasonable action to avoid open and obvious dangers. Children, however, due to their immaturity and innate curiosity, are held to a different standard. There is an assumption the decision-making ability of children cannot be compared to that of adults.

An attractive nuisance is any object, structure or condition that is both dangerous and irresistibly intriguing or inviting to a child.

Attractive nuisance laws describe hazards that can lure children, with tragic results. These measures put the onus on property owners to protect children from certain dangers on site that are known to attract children – even when those children are trespassing on the property.

Boston child injury lawyers at Jeffrey Glassman Injury Lawyers know that children thrive on curiosity. They crave exploration of the world around them. But they don’t always recognize the risks.

Some commonly-cited attractive nuisances in historical case law:

• Swimming pools (particularly those that are not properly gated or fenced)
• Railroads (see Sioux City & Pacific Railroad v. Stout)
• Construction sites (falls through unfinished floors, injuries caused by heavy equipment, falling objects, unsecured trenches and pits)
• Power lines and high-voltage towers
• Artificial water features, such as ponds, lakes or fountains
• Discarded appliances (refrigerators, chest freezers, dryers)
• Abandoned automobiles
• Farm Equipment
• Holes in the ground (sewer drains, wells, cisterns, holding tanks, drainage ditches, quarries and other open pits)
• Other recreational features (trampolines, skateboard ramps, playsets, jungle gyms)

If any of these conditions on property – public or private –result in serious injury or death to a child, there may be grounds to file a premises liability claim asserting attractive nuisance.

In most premises liability cases, the duty of care owed by the property owner depends heavily on the status of the visitor. There are three basic kinds of visitors:

• Invitee. This is a person or customer invited to the property to do business or use the property as a member of the general public. This category of visitor is owed the highest duty of care, with property owners required to regularly inspect for dangers. Any hazards found need to be corrected or visitors have to be warned.
• Licensee. These would be friends, acquaintances or those invited for casual visits. Duty of care in these cases is intermediate, meaning property owners must correct dangers that are known or reasonably knowable.
• Trespassers. These are people who enter the property without permission. Duty of care is low. Property owners can’t establish traps and, if it’s known there are occasional trespassers, there is a duty to warn them of dangerous conditions.

However, when there is an attractive nuisance on site, property owner then owes a duty to any trespassing children to essentially treat them as an invitee by taking an active role in preventing harm. If a child is harmed due to trespassing to access an attractive nuisance, the law will essentially regard them as invitees.

In Massachusetts, the legislature passed M.G.L. 85Q in 1977 that outlines the conditions under which a land owner may be responsible for injury to a trespassing child.

The statute holds that a land owner who maintains an artificial condition on the property shall be liable for injury to a trespassing child if:

• The place where the condition exists is one where property owner knows or has reason to know children are likely to trespass.
• The condition is one the property owners knows about or has reason to about and recognizes or should recognize the potential for unreasonable risk of serious bodily injury or death to those trespassing children.
• The children, because of their immaturity, don’t recognize the risks associated with that condition.
• The burden of maintaining that condition and eliminating the danger are slight compared to the risk to the children.
• The property owner does not use reasonable care in eliminating that hazard or in otherwise protecting the children from it.

Evaluation of these claims can be complex. For example, the No. 3 condition would almost certainly apply to very young children, but there has been substantial debate where older children and teenagers are concerned. In other words, a child’s status as a legal minor doesn’t necessarily entitle him to protection under attractive nuisance laws. Rather, in cases involving an older child, his or her maturity level and understanding of the danger would be the greater factor.

If your child has suffered serious injury or death as a result of contact with a dangerous condition on someone else’s property, call our experienced legal team to learn more about your rights.

Contact Jeffrey Glassman Injury Lawyers today for a free and confidential consultation.