Black’s Law Dictionary (5th Edition–yes, it’s old) defines attractive nuisance as “an instrumentality, agency, or condition . . . which may reasonably be apprehended to be a source of danger to children . . .” The law requires a person who creates or maintains an attractive nuisance “to take such precautions as a reasonably prudent man [I said it was old] would take to prevent injury to children of tender years who he knows may be accustomed to resort there, or who may, be reason of something there which may be expected to attract them, come there to play.”
For instance–
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While it makes sense that such a construction site could be considered an attractive nuisance to children, since the tools could be seen as toys and the ditch as a fort perhaps, could the construction company in turn sue the homeowners if for example there was a hole in the fence and the construction company’s precautions became less effective because of the homeowner’s negligence (of course assuming a child wandered in through the hole and then was hurt in the construction area, even though the equipment and the job site were reasonably well-maintained)? Has such a case ever occurred?
I agree that precautions need to be taken and it is easier to be precautionary when it comes to safeguarding children from the heavy machinery and tools in construction sites as above. However, sometimes it can become really hard to tell what will or will not attract a child and take necessary precautions. Almost anything can be attractive to a child like big flowery and thorny plants like cactii. Do we stop growing them in our garden because some child might want to pluck and in the process might get poked?! or pet dogs, fish etc. Shouldn’t the parents of the child be held accountable to an extent for letting their child wander into places that might be dangerous?! I’d also like to know what age bracket should the person fall under to be considered a child. Also, can someone be held liable for injuries caused by an attractive nuisance on their property whose existance they were unaware of. For example, if someone threw a sharp object in your backyard and a child wandered in and stepped on it and got hurt, then could you be held accountable for the child’s injury?!
Is there any significance to the name “attractive nuisance”? Typically a “nuisance” as a common law tort refers to something that is intangible (e.g. pollution, noise) that interferes with someone’s use of their own property. It seems that such a danger as could be considered an attractive nuisance, such as the example shown, would be both physical and would be restricted to an individual property, not affecting other properties. Maybe I’m way off base as I don’t know the origin of the name but, like “trade fixtures”, the distinction almost seems like a misnomer.
I believe that in order for the home owner to be held liable the location of the hazard has to be in a place where children are likely to trespass. For instance, its hard to tell from the pictures, but it looks like the ditch might be in the back of the property where it may or may not be visible to wandering children. As Richardson mentioned, is there a fence around the property blocking it from view? Also, it would be helpful to know whether this is a neighborhood with a lot of children or an older community. If the owner knew that no children lived within several miles of the house, would it still be considered an attractive nuisance?
Would this be the same for a swimming pool. I remember as I child my family building a fence around the pool as soon as my brother was born. Obviously it is in the best interest of my family to protect their children, but if they hadn’t built a fence could they be liable under this law as well.
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