Attractive nuisance doctrine
This article needs additional citations for verification. (May 2012) (Learn how and when to remove this template message)
|Part of the common law series|
|Liability and remedies|
|Duty to visitors|
|Other common law areas|
The attractive nuisance doctrine applies to the law of torts in some jurisdictions. It states that a landowner may be held liable for injuries to children trespassing on the land if the injury is caused by an object on the land that is likely to attract children. The doctrine is designed to protect children who are unable to appreciate the risk posed by the object, by imposing a liability on the landowner. The doctrine has been applied to hold landowners liable for injuries caused by abandoned cars, piles of lumber or sand, trampolines, and swimming pools. However, it can be applied to virtually anything on the property of the landowner.
There is no set cut off point that defines youth. The courts will evaluate each "child" on case by case basis to see if the "child" qualifies as a youth. If it is determined that the child was able to understand and appreciate the hazard, the doctrine of attractive nuisance will not likely apply.
Under the old common law, the plaintiff (either the child, or a parent suing on the child's behalf) had to show that it was the hazardous condition itself which lured the child onto the landowner's property. However, most jurisdictions have statutorily altered this condition, and now require only that the injury was foreseeable by the landowner.
The attractive nuisance doctrine emerged from case law in England, starting with Lynch v. Nurdin in 1841. In that case, an opinion by Lord Chief Justice Thomas Denman held that the owner of a cart left unattended on the street could be held liable for injuries to a child who climbed onto the cart and fell. The doctrine was first applied in the United States in Sioux City & Pacific Railroad Co. v. Stout, an 1873 case from Nebraska in which a railroad company was held liable for injuries to a child who climbed onto an unsecured railway turntable. The term "attractive nuisance" was first used in 1875 in Keffe v. Milwaukee & St. Paul Railway Co., a Minnesota case. The doctrine has since been adopted in some other common law jurisdictions, such as Canada, but not universally.
According to the Restatement of Torts standard, which is followed in many jurisdictions in the United States, there are five conditions that must be met for a land owner to be liable for tort damages to a child trespasser as a result of artificial hazards.
- The place where the condition exists is one on which the possessor knows or has reason to know that children are likely to trespass, and
- The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children,
- The children, because of their youth, do not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area made dangerous by it
- The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
- The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children
(See Restatement of Torts §339)
US states that use the Restatement test include:
- Alabama; adopted in 1976 case, Tolbert v. Gulsby
- North Carolina
- Ohio – see case: Bennett v. Stanley, 92 Ohio St.3d 35 (2001)
- Utah – see case: Pullan v. Steinmetz, 16 P.3d 1245 (2000)
- Wyoming – see case: Thunder Hawk By and Through Jensen v. Union Pacific R. Co, 1995 WY 32, 891 P.2d 773 (Wyo. 1995)
- Texas – see case: Texas Utilities Electric Co. v. Timmons, 947 S.W.2d 191 (1997)
- Cotten, Doyice; Wolohan, John T. (2003). Law for Recreation and Sport Managers. Kendall/Hunt Publishing Company. pp. 208–. ISBN 9780787299682. Retrieved 9 November 2014.
- Holland V. Baltimore & Ohio Railroad Co. 431 A.2d 597 (D.C. 1981).
- Aderman, Louis B. (April 1937). "The Attractive Nuisance Doctrine with Emphasis Upon Its Application in Wisconsin". Marquette Law Review. 21 (3): 116.
- Bolden, Robert F. (Winter 1950–1951). "Elements of Attractive Nuisance". Marquette Law Review. 34 (3): 197.CS1 maint: Date format (link)
- Gurwin, David A. (1985). "The Restatement's Attractive Nuisance Doctrine: An Attractive Alternative for Ohio" (PDF). Ohio State Law Journal. 46 (1): 138.
- Hughes, Graham (March 1959). "Duties to Trespassers: A Comparative Survey and Revaluation". Yale Law Journal. 68 (4): 664.
- Text of opinion from Ohio Supreme Court's web site
- Text of opinion from Utah Supreme Court's web site
- Text of opinion from Wyoming State Law Library