Attractive Nuisance Cases and the Restatement of Torts

An attractive nuisance is a legal concept that makes a property owner liable for injuries sustained by children who are attracted to the property – for example, a vacant lot that contains mineshafts, or a quarry that contains an open swimming area. Not every condition that would appeal to a young child is likely to trigger the legal rule. But in general, if the property owner should have known that children were likely to see and be attracted by the property or its features, and the property owner didn't take ordinary safety precautions, the property owner may be liable for injuries suffered by the child. In other words, the property owner is responsible for identifying and making safe any attractive and dangerous conditions.

Not all injuries suffered by children on strange property will trigger this rule. For example, a 7-year old Ohio girl disregarded adult advice to stay away from a horse, but crawled under an electrified fence, unlocked a paddock and confronted a horse and was kicked in the face. The girl did not recover under the theory of attractive nuisance. The owners of the paddock had taken sufficient precautions to prevent injury, the child was considered a trespasser, and the horse paddock was not considered an attractive nuisance.

Restatement of Torts

Many states base their laws on attractive nuisance on the principles provided in the Restatements of Torts,  books that set out the basic principles and laws created through court judgments. The Restatement sets out five requirements for an attractive nuisance case:

  1. the nuisance is in a place the property owner should know children are likely to encounter it;
  2. the condition is one that a reasonable person would know could cause injury;
  3. the child did not understand the risks associated with the condition;
  4. making the condition safe is relatively easy;
  5. the property owner did not take reasonable safety measures.

Unlike traditional common law, the Restatement no longer requires proof that the child was lured onto the property by the nuisance. In this way, the Restatement has modified and modernized the doctrine. The Restatement also provides examples of items considered to be an attractive nuisance, such as a stack of lumber. Only some states have adopted the above five-part attractive nuisance test.

The principle of attractive nuisance is complex and property owners and parents should seek legal advice before proceeding in the prosecution or defense of such a claim. For example, a property owner should consult with an attorney before establishing safety precautions for property that attracts children. In one case a court ruled that a public utility  could be held liable for a child's injuries. The utility had posted warnings and that (the warnings) was evidence demonstrating that the owner knew of the dangers. Sound like a Catch 22? That’s why an attorney’s help is beneficial. At the same time, a parent whose child is injured should seek prompt legal advice in order to preserve the evidence demonstrating that the property was an attractive nuisance.

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