Attractive nuisance claims are some of the most tragic of premises liability personal injury lawsuits because they always involve injuries to young children. An attractive nuisance exists when the condition of property causes children of tender years to enter property by virtue of an unusual attractiveness. While an adult might be considered a trespasser, the law implies an invitation to the children because of the attractive nuisance and imposes additional duties upon the owner of the property. So, if a child is injured after entering the property of another without an invitation, whether through a slip and fall, stairwell accident, drowning or other condition, personal injury lawyers often determine whether an attractive nuisance caused the child to enter the property in the first place. If so, the owner of the property might be liable for the child’s injuries. To determine whether the attractive nuisance doctrine applies, the following must be shown:
How to Determine if an Attractive Nuisance Exists
- The place where the condition exists is one upon which the owner knows or has reason to know that children are likely to trespass;
- The condition of the property is such that the owner knows or should know involves an unreasonable risk of death or serious bodily injury to such children;
- The children, because of their youth, do not discover the condition or realize the risk involved in entering the land;
- The utility to the owner of maintaining the condition and the burden of eliminating the danger are slight as compared to the risk to the children; and
- The owner fails to exercise reasonable care to eliminate the danger or otherwise protect the children.
What Age Children are Protected by the Attractive Nuisance Doctrine?
The doctrine applies to children that are still too young to appreciate the danger. There is no absolute age determination while children over fourteen are presumed to have the capacity to appreciate danger unless they are lacking in mental development. Children under seven are presumed not to have the capacity to appreciate danger.
An attractive nuisance can be anything on property that can lead children to investigate an play upon or in. Some attractive nuisances might be swimming pools, construction equipment, construction sites, chemical plants and equipment and any other condition that could lead a child to explore.
When Did Attractive Nuisance Become the Law in Texas?
The first reported cases in Texas involved railroad turntables such as in Sioux City & Pacific Railroad v. Stout in which a young boy six years old trespassed upon railroad property with his friends to play on and around the turntable. Turntables were used to turn rail cars around to change direction. As the boys played around and caused the machine to turn around, it crushed the foot of one of the boys. Normally, landowners have very little duties in regard to trespassers. However, in this case the court found that the company had knowledge that young children played upon the machine and that it would have been very easy to install a locking mechanism which would have actually prevented the injury.
Cases and court opinions like this have made property safer for children. Just looking around at any construction site you can see the precautions taken to protect children from accessing dangerous equipment. For instance, in the photo below, you can see that the base and entrance to this construction crane has been enclosed to prevent access.
If the construction company had not taken the steps to enclose and lock the crane base, it could certainly be anticipate that curious children could be “attracted” to the construction site, climb the crane ladder and be seriously injured or killed. Taking simple precautions makes sense to protect not only the live of children that might be nearby but also to protect the company from suits for damages. If your child has been injured on the property of another, it does not matter if they did not have permission to be there. If they were injured because of a dangerous condition or activity on the property, seek the advice of a board certified personal injury lawyer to determine if the attractive nuisance doctrine applies. You and your child might be entitled to compensation from the company that caused the dangerous condition and resulting injuries. The enclosure around this construction crane prevents children from climbing the ladder and getting injured or killed. It certainly could be considered an attractive nuisance without being secured in this way.
If your child was injured on the property of another, contact board-certified personal injury lawyer Michael P. Fleming for a free evaluation of your options.