The doctrine of attractive nuisance recognizes that children are especially vulnerable to certain dangers and that landowners should be charged with preventing injuries from such dangers. This doctrine only applies to situations where the danger is not readily apparent, not when the danger is open and obvious. Further, it does not apply to natural or artificial conditions that are common to nature. For example, a pond is not ordinarily considered an attractive nuisance unless some unusual condition or artificial feature makes it peculiarly dangerous to children.
To recover under an attractive nuisance claim, a plaintiff must prove the following five elements:
- The property owner or operator maintained or permitted the structure or condition about which the plaintiff complains;
- The condition was peculiarly dangerous to children and of such a nature that they would not comprehend the danger;
- The condition was particularly attractive to children for play or sport;
- The owner or operator either knew or should have known the structure or condition existed on the property, and that children likely were to trespass upon the property and be injured by the structure or condition; and
- The injury sustained was the natural, probable and foreseeable result of the structure or condition.
A “dangerous condition or structure” is an artificial and unnatural condition inherently dangerous and unreasonably risky to children. Liability arises from the negligent act of maintaining, or failing to maintain the condition, in a dangerous manner. The danger must not be apparent to “immature minds.” The immediate presence of a parent precludes the application of the attractive nuisance doctrine.
Historically, attractive nuisance cases have arisen in the context of trespassing children playing with specific items on construction sites or vacant lots. In 1993, however, an Indiana court issued a decision directly impacting many apartment communities. In that decision, the Court of Appeals found that a jury could infer that a nine-year-old’s knowledge, judgment, and experience would not have caused him to recognize the danger presented by a weight machine. The child, with adult permission, had accompanied a friend to the weight room when he was injured in his attempt to help his friend off the weight bar. The court considered the utility to the landowner of maintaining the condition and the burden of eliminating the danger against the risk to children of the particular condition or instrument. The court concluded that the burden of eliminating the danger consisted only of installing a lock and providing keys to the residents, which is arguably a light burden compared with the risk to the residents’ children. It also stated that if a landowner reasonably can anticipate that a child could come into contact with a dangerous condition or structure on the premises, such that it could cause serious injury to the child, the landowner must take reasonable steps to prevent injury.
Keywords: amenities, pools, kids