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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 children.
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:
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 to investigate.
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 and stairways.
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 object.
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. 1986).)
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. 1986).)
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 library.
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 object.
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 appropriate authorities.
Neighbor Law: Fences, Trees, Boundaries & Noise by Attorney Cora Jordan
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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