In ordinary conversation, the "attractive nuisance" legal doctrine is often used to describe conditions which are just the opposite of what the law considers an attractive nuisance. Often we hear references to any condition that would attract children as an attractive nuisance subjecting the property owner to liability if the child is injured. But a recent case from the Ohio Court of Appeals held to the contrary.

In that recent case, the Ohio Court of Appeals held that the property owner had no liability as a matter of law in the drowning death of a 12-year old boy. By contrast, a fairly recent Kentucky case involving the drowning death of a 9-year old boy, the Kentucky Supreme Court held that the attractive nuisance doctrine would allow the jury to render a damages award. These two cases taken together provide a clear understanding of how the courts in Ohio and Kentucky apply the attractive nuisance doctrine.

In Mayle v. McDonald Steel Corporation, decided on October 7, 2011, the private landowner (McDonald Steel) was granted summary judgment although there was evidence McDonald knew or should have known that children occasionally swam in the reservoir on its property. In this case a young boy dove off an abutting concrete wall into the reservoir, was pulled by heavy currents below the surface and drowned. The Court of Appeals held that any child would appreciate the danger posed by diving off a high wall into a body of water that had "frothy water" next to the wall. The particular risk in this case was the strong undertow. Although the undertow was not visible, the overall dangerous condition was "open and obvious" even to a child.

By contrast, in Mason v. City of Mt. Sterling, decided on January 22, 2004, the Kentucky Supreme Court held that the attractive nuisance doctrine did apply where a dangerous condition was not apparent on the surface of waters that had flooded an area adjacent to the parking lot of an apartment complex. In that case, a 9-year old boy "stepped over a submerged culvert entrance which was covered by opaque muddy water. A strong undertow sucked J.C. down into the storm sewer system." The Supreme Court held that the attractive nuisance doctrine was applicable because the dangerous condition was not "open and obvious." In contrast to the "frothy water" in Mayle, which signaled danger below even to a youth, the muddy water in Mason concealed the danger.

Both the Ohio and Kentucky cases recognized the same elements for an attractive nuisance case. The owner of land is liable for an artificial condition on his property, even to trespassing children, if the following conditions are met: 1.) the owner has reason to know the children are likely to trespass; 2.) the condition involves an unreasonable risk to children; 3.) children do not, or should not, appreciate the risk; 4.) it is not unreasonably burdensome to the owner to eliminate the risk; and 5.) the owner does not take reasonable means to eliminate the danger or otherwise protect the children.