My child was injured when he fell in a neighbor's swimming pool. Is this an attractive nuisance claim?
It could be, but we would need to know more about how the accident happened.
An “attractive nuisance case” is one where a condition on the property is particularly enticing to a child, and the property owner knows that (or should know that). The presence of an attractive nuisance on property triggers the property owner’s legal obligation to take reasonable precautions to make the property safe, even for children who might technically be trespassing.
A swimming pool qualifies as an attractive nuisance, but the property owner is not automatically liable just because a child comes onto the property and is injured. The potential liability of the property owner will be determined by the circumstances of the accident.
If local children regularly come onto the property -- with or without permission -- then chances are that if the property owner takes no steps to safeguard the pool (whether it is full of water or empty), he or she will be found liable if a child is injured in the pool. At the very least, the property owner would probably be obligated to build a fence and/or install a durable kid-proof pool cover, in addition to posting visible warning signs.
But what if the child climbed an eight-foot fence that had been put up around the pool, or stole a key and unlocked a security gate? What if the child figured out how to retract the pool cover? Developments like these -- as well as the child’s age -- will factor into the determination of the property owner’s liability for injuries stemming from an attractive nuisance.
by: David Goguen, J.D.