We so often hear people talk about an attractive nuisance when referring to items in yards such as a swimming pool, but what does that mean? The doctrine of attractive nuisance refers to unenclosed pools, machinery or stacks of building materials that are simultaneously both a lure and a hidden danger to children. Natural conditions, such as a lake or a steep hill, are not general considered to be attractive nuisances. In order to be held to be liable for injury, the property owner must either create or maintain the harmful object.
In many states, the court weighs property owner liability in attractive nuisance cases by determining if the property owner knew or suspected that children might trespass near the hazard, whether the hazard poses an unreasonable risk of death or harm to children, whether the children can appreciate the risk involved; and whether the landowner took reasonable precautions or exercised reasonable care to eliminate the hazard or to protect the children from harm. The Illinois Supreme Court, in a ruling last year in the case of Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, confirmed that the State of Illinois does not recognize the “attractive nuisance doctrine” in the same manner as many other states.
In Choate v. Indiana Harbor Belt R.R., a 12-year-old boy named Dominic Choate attempted to impress his friends by jumping aboard a slow-moving freight train. In his third and final attempt he fell, and the train ran over his foot, resulting in a below the knee amputation. In a lawsuit, Choate claimed it was the railroad’s fault. The railroad asked for summary judgment, because it was obvious that jumping on a train was dangerous, and Choate admitted that he knew it was dangerous. The trial court refused, and awarded $6.5 million in damages.
An intermediate appellate court affirmed the decision but the Illinois Supreme Court reversed the ruling stating that a landowner owes no duty to trespassers, and while it owes a duty to children to warn them of latent harms that a child might not reasonably apprehend, it owes no duty with respect to obvious harms. The court went on to say that the Plaintiff and his friends had not paid attention to the fence segments; or the posted warning sign and they were not trying to cross the tracks. Because Choate was clearly trespassing, the railroad did not have the duty to provide reasonable care.
While this ruling calls into question what liability homeowners have regarding attractive nuisances on their property, it is worth noting that many municipalities in Illinois have laws that strictly define the duties that property owners have to reduce the possibility that a child might be injured by an attractive nuisance on their property including fencing, signage, and alarm systems. If a child is injured on your property, you could be sued for their injuries based on the theory that you should have known that objects on your property would be an irresistible lure for the curious.
If your child has been injured or someone has been injured on your property, you should contact an experienced injury attorney right away to find out your legal options.