Most people know that they cannot enter another person's property without permission. The premises liability rule of trespass says that the property owner is not responsible for any injuries to a trespasser as long as there is nothing especially dangerous on the property. However, what about children who do not understand the trespass rule and cannot appreciate the danger of an eye-catching object such as a tractor, swimming pool or man-made pond?
An attractive nuisance is a condition on a person's property that attracts children who can’t appreciate the foreseeable danger inherent in the condition. Trampolines, construction equipment and swimming pools are common attractive nuisances for which property owners may be liable for any damages if a trespassing child is injured or killed because of them.
Elements to prove attractive nuisance
To hold a property owner responsible for injuries caused by an attractive nuisance on the property, the parents of the injured child must prove each of the following elements:
The luring condition on the property is in a place where the property owner knows, or should know, that children may trespass.
The luring object or condition is something that the property owner knows can cause injury to children who come near it.
Children cannot appreciate the dangerous nature of the condition or object if they interfere or touch it.
The burden on the owner to eliminate the risk is slight compared to the risk posed to children.
The property owner has not used reasonable care to stop children from being injured by the luring condition or object.
Proving personal injury under the attractive nuisance doctrine depends on the unique facts of each case. The level of understanding of a child varies depending on the age and what constitutes reasonable care will change with the type of dangerous condition and age of the child who was hurt. For example, a sign that says "Warning: Construction in Progress" may be considered reasonable care for children aged 11, but not aged three.