Children, closely watched or not, stray onto other people's
properties sooner or later. Often, what draws them are everyday
objects--pools, machinery or stacks of building materials--that
present both an irresistable lure and hidden danger to young
If something on your property is both inviting and dangerous, you
have a special legal responsibility to try to prevent injuries to
children who may wander onto the property. In many states, this rule
is called the "attractive nuisance" doctrine. It can be roughly
summarized with three rules:
- Children are not expected to fully realize the dangers they may
- A property owner who should realize that children are likely to
come onto the property has a heightened responsibility to prevent
- An owner who fails to take reasonable precautions to prevent
injury is usually liable for a child's injuries.
What Is an Attractive Nuisance?
An attractive nuisance is a potentially harmful object so inviting or
interesting to a child that it would lure the child onto the property
An unenclosed swimming pool, for instance, or a fountain containing
goldfish could be attractive nuisances. Ordinary objects can attract
and injure children: an idling lawnmower, paint sprayer, table saw--
even the family auto. Children are also fascinated by construction
sites and equipment, gasoline pumps, wells, tunnels, dumpsters, paths
You may be thinking that almost anything could injure a small child.
After all, even a stick in the yard can be picked up and poked into
an eye. Yet a stick is not so unusual or enticing as to draw children
over at their peril. And not every dangerous condition is an
attractive nuisance. Most natural conditions, such as a lake or a
naturally steep bank, are not considered attractive nuisances. To be
liable for injury, an owner must create or maintain the harmful
And even a very small child is presumed by the law to understand some
dangers--for example, falling from a height or touching fire. The
attractive nuisance doctrine arises when the child doesn't realize
the extent of the danger.
Who Is Protected
Very young children are far from the only ones protected by the law.
Judges tend to look at each particular case and each individual
child's capacity to understand danger. For example, an Alabama court
found that a 16-year-old boy may not have understood the dangers of
exploring an abandoned clay pit and the owner could be liable when
the boy was injured. (Lyle v. Bouler, 547 So. 2d 506 (Ala. 1989).)
Here are some more examples, from actual lawsuits.
Example 1: A 12-year-old child climbed onto the roof of a building to
play and fell three stories to the ground. Ruled: The owner was
liable, for these reasons:
1. Children were known to play in the area. 2. The roof itself had an
area that was sloped and slippery, something that a child would not
notice. 3. The owner could easily have locked the door to the roof.
(Smallwood by Smallwood v. Fornaciari, 560 N.E. 2d 637 (Ill. App.
Example 2: A 10-year-old fell three stories from a roof after
climbing up and playing on it. Ruled: The owner was not legally
responsible for the child's injuries, because:
1. This owner had no reason to know that children would play on the
roof. 2. No hidden danger on the roof itself caused the fall. (Corson
by Lontz v. Kosinski, 801 F. Supp. 75 (N.D. Ill. 1992).)
Example 3: During construction of a house, a contractor left
sheetrock propped against a wall and unattended. An 11-year-old girl,
investigating the building site, was injured when the sheetrock
tumbled down on her. Ruled: There were grounds for a lawsuit against
the contractor, because:
1. Children were likely to come onto the building site. 2. The
sheetrock was left unattended for days. 3. It could have easily been
stacked in a safer manner. (Amora v. Lain, 725 S.W.2d 734 (Tex. App.
The law doesn't require owners to childproof their properties. But it
expects people to be alert to potential dangers to children and to
take reasonable steps to prevent harm to those too young to
understand the danger.
Follow local laws. Local laws often regulate objects that are
dangerous to inquisitive children. By far the strictest regulations
apply to that increasingly common danger, the backyard swimming pool.
You can look up these laws at your local public library or law
Typical Local Laws
Laws typically cover these and other hazards:
Pools. Your community may require certain kind of fences and locks.
Discarded refrigerators. Almost every town has a law requiring the
removal of doors, preventing a curious child from suffocation.
Fences. Laws prohibiting barbed wire below a certain height level
protect children from sharp barbs, which they might not expect.
Old cars and other junk. Such eyesores, which to a child might be
inviting, are in most places prohibited unless they are fenced.
Dangerous dogs. State or local laws require owners to keep dogs away
from people if the dogs are known to be dangerous.
Chemicals. Federal, state and local laws regulate how pesticides,
paints and other hazardous chemicals may be stored and disposed of.
Use good judgment. The best way to avoid tragic accidents is to use
good common sense. If something on your property fascinates
neighborhood children, they can be expected to trespass and
investigate it if given the chance. Lock it up, fence it or remove
it. If an object is an accident waiting to happen--a ladder propped
against a roof or a machine left running--never leave it unattended.
Ask your insurance agent what precautions you should take concerning
dangerous but necessary objects--for instance, swimming pools, wells
or machinery. If the company requires a fence, install it, or you
could lose your coverage. And don't be surprised if your premiums
increase for the pleasure of having a pool, trampoline or other
If you are a concerned parent, this may be a good time to be a
meddlesome neighbor. Assume the neighbor wants to know about
dangerous conditions, and offer to help find a solution. If a law is
being violated and the neighbor won't cooperate, contact the
Neighbor Law: Fences, Trees, Boundaries & Noise by Attorney Cora
Who must maintain the fence on the boundary line? Who can trim a tree
that grows on one person's land but hangs over a neighbor's property?
Neighbor Law answers common questions about the subjects that most
often trigger disputes between neighbors: fences, trees, boundaries
and noise. It explains how to find the law and resolve disputes
without a nasty lawsuit.
"So your neighbor's giant sequoia is blocking your view. Who ya gonna
call? The search for a 'dispute buster' should end with this helpful new
book." -- Sunset Magazine
"For anyone with a neighbor problem, [this] is a handy book indeed.
It walks the reader through written and common law, tells you what
your rights are and how to follow through on a complaint all the way
to court, if necessary." -- Oakland Tribune
This article originally appeared in the Fall 1994 issue of the Nolo
News. The author, Cora Jordan, is the author of Nolo Press's Neighbor
Law: Fences, Trees, Boundaries & Noise. You may copy this article
as long as you include this copyright notice.
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