Attractive Nuisance Doctrine

The attractive nuisance doctrine (a/k/a attractive agencies doctrine or attractive instrumentalities doctrine) is a tort law doctrine under which a person maintaining on his premises a condition, instrumentality, machine or other agency, which is dangerous to young children because of the children’s inability to appreciate peril and may reasonably be expected to attract them to premises, owes duty to exercise reasonable care to protect the children against dangers of such attraction.

The attractive nuisance doctrine does not apply to a natural condition or common dangers existing in order of nature. The doctrine applies only in favor of children who are too young to appreciate the danger. The doctrine requires that the attraction be visible from a public place or a place where children have a right to be.

“The doctrine, is that person who has an instrumentality, agency, or condition upon his own premises, or who creates such condition on the premises of another, or in a public place, which may reasonably be apprehended to be a source of danger to children, is under a duty to take such precautions as a reasonably prudent man would take to prevent injury to children of tender years whom he knows to be accustomed to resort there, or who may, by reason of something there which may be expected to attract them, come there to play.” Atlantic Coast Line R. Co. v. O’Neal, 48 G.A.App. 706

“[T]he doctrine acquired the unfortunate misnomer ‘attractive nuisance,’ a label which persists to this day. It cannot be taken literally, since the courts have now largely rejected the notion that the child must be attracted by that which injures him, and whether or not the condition is in fact a ‘nuisance’ has nothing at all to do with defendant’s liability to the child.” Edward J. Kionka, Torts in a Nutshell 89 (2d ed. 1992).

 Attractive Nuisance Doctrine Checklist:

  • Possessor of land liable for physical harm to trespassing children from an artificial condition IF
    • Possessor has actual or constructive knowledge that children likely to trespass at the place
      • AND
    • Possessor has actual or constructive knowledge that condition involves an unreasonable risk of death or serious bodily injury to the children
      • AND
    • Children – because of youth – in fact do not discover condition or realize risk associated with it
      • AND
    • Possessor’s benefit/utility in having the condition and possessor’s burden of eliminating it are outweighed by risk to children
      • AND
    • Possessor does not exercise reasonable care to eliminate danger or otherwise to protect children.

Restatement Second of Torts, Section 339 – Artificial Conditions Highly Dangerous to Trespassing Children.

“A possessor of land is subject to liability for physicial harm to children trespassing thereon caused by an artificial condition upon the land if:

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) 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, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) 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

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.”

Examples of conditions on a property that could lead to liability under the Attractive Nuisance Doctrine:

Attractive Nuisance - Old Vehicle
Abandoned vehicles on property.
Attractive Nuisance - Trampoline
Attractive Nuisance - Swimming Pool
Swimming Pool

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