Children and Attractive Nuisances
Children have a difficult time understanding boundaries. Unfortunately, this includes understanding what property they are and are not allowed on. Children are often attracted to another’s land because of an object or landmark they think looks fun or enticing. If the child is injured on another’s property, the landowner may be responsible for their injuries under premises liability law. Read on to learn what constitutes an attractive nuisance and whether you may have a case.
What Is An Attractive Nuisance?
An attractive nuisance is something that draws children onto the land. To be considered an attractive nuisance, the owner or occupier must have created or maintained the condition. Some examples of attractive nuisances are:
● Artificial ponds, fountains, and lakes
● Dangerous Animals
● Tree Houses
● Machinery (lawnmowers, gas pumps, and tractors, etc.)
Standard of Care Owed to Children
Generally, ordinary negligence and premises liability rules apply to children. Therefore, the child’s status on the property determines whether they can hold the owner responsible. If a child is invited or allowed to be on the property, they can typically recover from injuries caused by a dangerous land condition.
Children who are trespassing are owed a lesser duty of care in most instances. However, the landowner owed a higher burden of care if they know, or should know, children may be on their land. An attractive nuisance puts the landowner on notice for the potential of children being on their land.
Liability for An Attractive Nuisance
To hold a landowner liable for an attractive nuisance, the child’s parents must prove the owner had knowledge of the hazardous condition, that children were likely to trespass, and that the condition posed an unreasonable risk of harm to children. Additionally, it must be proven the child would not have understood the risk presented and that the owner’s burden of eliminating the danger was minor compared to the potential risk.
An owner can have knowledge that children were likely to trespass in several ways:
- If children have already entered the land so that the landowner has actual knowledge.
- If there are children regularly nearby, the owner should know the potential for them to enter their land.
- Owners should know certain nuisances such as pools and trampolines will attract children.
Cause of the Child's Injury
Some states only allow a child to recover if the attractive nuisance caused their injury. However, other states allow children to recover for injuries caused by any dangerous condition on the land if the child was brought onto the land by an attractive nuisance, such as a swimming pool. The landowner must have had actual or constructive knowledge of the existence of the dangerous condition. Constructive knowledge requires the owner must have been able to discover the situation through a reasonable search of the land.
Who can Sue For Attractive Nuisance?
A child under the age of 18 is not able to file a lawsuit. Therefore, their parent or legal guardian must file the case on their behalf. Money awarded to the child through a settlement or trial is held in a trust until the child reaches a certain age. The judge will determine the age at which the child can access the money. Sometimes, the judge will assign the funds for college or other reasons. The parent will not be able to touch the money as it belongs solely to the child.
Steps In an Attractive Nuisance Lawsuit
Once the case is filed, and the initial papers are served, the child’s involvement will be minimal. The other side will contact your attorney for specific information and documentation. Your attorney will likely reach out to you for this information, so be prepared to assist with this. The child will not be required to be present for a majority of the court or legal proceedings. The only times the child’s presence is needed are depositions. During the testimony, the defendant’s attorney will ask the child questions, and they will have to answer them. The questions will revolve around the incident and the child’s injury.
Once you are further into the lawsuit, the two sides will begin negotiating a settlement. This may take some time, and it also may never materialize, so be patient. Your attorney must notify you of any offer made for final approval or rejection. If the parties cannot settle, they may choose to go to mediation or arbitration for a third party to help resolve the case, and a trial is held if all else fails.
Finding The Right Lawyer For Your Attractive Nuisance Case
The attorney will be your go-to person during the lawsuit. Therefore, picking the right one is of the most importance. Most personal injury law firms handle attractive nuisance cases, so you will have many attorneys to choose from. It is smart to pick the one you get along with best and has experience in attractive nuisance cases.