Attractive Nuisance

 By Sherri Stewart

What do refrigerators, constructions sites, and swimming pools have in common? Like outdoor magnets they draw children to them, enticing kids to hide in them and play in them and jump in them. And because children aren’t wise enough to know danger when they see it, these attractive sites can cause death or injury. 

The attractive nuisance doctrine emerged from case law in England, starting with Lynch v. Nurdin in 1841. In that case, the court held that the owner of a cart left unattended on the street was liable for injuries to a child who climbed onto the cart and fell. The doctrine was first applied in the United States in Sioux City & Pacific Railroad Co. v. Stout, an 1873 case in which a railroad company was held liable for injuries to a child who climbed onto an unsecured railway turntable. The term “attractive nuisance” was first used in 1875 in Keffe v. Milwaukee & St. Paul Railway Co.

The attractive nuisance doctrine states that an owner may be held liable for injuries to children trespassing on the land if the injury is caused by an object on the land that is likely to attract children. The doctrine is designed to protect children who are unable to appreciate the risk posed by the object, by imposing liability on the owner. The doctrine has held landowners liable for injuries caused by abandoned cars, piles of lumber or sand, trampolines, and swimming pools. However, it can be applied to virtually anything on the property. 

There is no set cutoff point that defines youth. The courts evaluate each "child" on a case-by-case basis to see if the "child" qualifies as a youth. If it is determined that the child was able to understand and appreciate the danger, the doctrine of attractive nuisance will not likely apply. 

Under the Common Law, the plaintiff had to show that it was the artificial hazardous condition itself which lured the child onto the owner's property. In most jurisdictions, there are five conditions that must be met for an owner to be liable for tort damages to a child trespasser: First of all, the place where the condition exists is one on which the owner has reason to know that children are likely to trespass.

Second, the condition is one of which the owner has reason to know will involve an unreasonable risk of death or serious bodily harm to such children. In the case of Bjlrk v. Tacoma in 1913, a three-year-old child drowned in a flume in which an opening had been left uncovered, the flume being in an open, unfenced lot where children were accustomed to play. The court found the landowner liable for the death of the child. 

Third, the children, because of their youth, do not appreciate the risk involved in intermeddling with it or in coming within the area made dangerous by it. For example, a toddler might lock himself inside a refrigerator because they don't recognize the danger. However, a teenager knows or should know the danger of such an act. Thus, if a teenager and a toddler suffer injuries inside refrigerators, the refrigerator owner might be liable for the toddler's injuries but not the teenager's injuries.

Fourth, the utility of maintaining the condition or eliminating the danger are slight as compared with the risk to children involved. This is called the risk v. utility test. Is it financially feasible to put a high fence around an amusement park that moves from one city to the next each week? Is it feasible to put a fence around a swimming pool in one’s backyard?

Fifth, the owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the child. Reasonable is the limiting standard because, as was aptly said, in Gordon v. Snoqualmie Lumber & Shingle Co, "Almost everything will attract some child. The pretty horse, or the bright red mowing machine, or the pond in the farmer's field, the millpond, canal, the railroad cars, the moving carriage in the street, electric works, and infinite other things attract a child as well as the city's reservoir. To what things is the rule to be limited? And where will not the curiosity, the thoughtlessness and the agile feet of the truant boy carry him? He climbs into the high barn and the high cherry tree. Are they, too, to be watched and guarded against him? As was well said in Gillespie v. McGowan, 100 Pa. St. 144, this rule 'would charge the duty of the protection of children upon every member of the community except their parents.' A very onerous duty.”

Now it's your turn. This law question comes from my book, Deer Eyes. Two eight-year-old boys crawled through some holes in the fence surrounding their school playground during the summer to reach a construction site of an apartment complex. No workers were there at the time, so the boys began exploring everything they could find. One boy climbed to the third floor of a partially built apartment building but slipped on some sawdust. He slipped over the edge and fell onto the concrete floor three stories below, breaking his neck and dying instantly. The fence they’d crawled through was owned and maintained by the school. There had been two prior incidents where children had escaped and gone to play in a creek during school hours. If one of the boys’ parents sue for wrongful death, who should they sue, and will they win their suit?’”

Selah Award finalist Sherri Stewart loves a clean novel, sprinkled with romance and a strong message that challenges her faith. She spends her working hours with books—either editing others’ manuscripts or writing her own. Her passions are traveling to the settings of her books and sampling the food. She traveled to Paris for this book, and she still works daily on her French, although she doesn’t need to since everyone speaks English. A recent widow, Sherri lives in Orlando with her lazy dog, Lily. She shares recipes, tidbits of the book’s locations, and other authors' books in her newsletter.

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