An Attractive Nuisance for you to think about
Attractive Nuisances around your Home
What is an “attractive nuisance”? It’s not that good-looking new neighbor who has noticed your spouse, or an unwanted traveling companion like Christie Brinkley’s character out of National Lampoon’s movie Vacation. The law of attractive nuisance refers to a doctrine that was formulated over time to protect children – yours and mine. Children may be attracted to various things or conditions on your property that seem intriguing, but may prove dangerous. The dangerous condition or thing is the “nuisance” and the fact that it is of interest to children makes it “attractive.”
There are basic considerations that come into play every time a child enters onto property. Is the child trespassing, or entering with permission? The burden on the landowner to protect children is usually higher if the child is invited onto the property as opposed to trespassing, but this is not as important a distinction as it used to be. How old is the child? Is there a dangerous condition that may result in injury? How obvious is the dangerous condition and how easily could it have been eliminated? We will consider the situation where the child is a trespasser and enters upon someone’s property and suffers injury. Whose fault is it? The duty the law imposes on a landowner to protect children is substantial. The bottom line is, you don’t want to be in a Courtroom explaining why a child injured on your property is not your fault. Its not that you can never win, but it’s like starting off a race with lead weights on your ankles.
In order for a property owner to be responsible, there must be a dangerous condition that the property owner is aware of, or should be aware of on his or her property. Second, the property owner must also know, or should know, that children trespass on occasion. The danger must be one that is likely to cause injury to children. Dangers that are obvious to adults are often not obvious to children – and those are really the ones to watch out for. An important question is how easy it is to fix the problem, and avoid the danger, balanced against any need to maintain the condition. For example, in an ongoing house construction site, where materials must be laid about, and often large pits are dug for a foundation, danger is somewhat unavoidable, although precautions can be taken. After some serious thought on these issues, the last question is whether the property owner acted reasonably overall in preventing the danger or protecting children.
Generally speaking, these issues that must be weighed in light of precedent and the ever-evolving sense of justice that makes our legal system so dynamic, with the fine points varying depending upon what state you are in. The dangerous condition could be a pile of wood, improperly stacked boards, an open septic tank, gas cans, an unlocked shed with power tools, an unfenced pool, even a small pond. Keep in mind that if you have an artificial pond, you may be obligated to fence it in, just like a pool, depending on the depth, due to it being a potential drowning hazard. Your local town or county ordinances should be checked. The worst scenarios usually involve kids drowning in other people’s pools. A rechargeable power tool is potentially always “live” and ready to operate. A weed whacker seems harmless in an adult’s hands, but little Johnny might think it’s a great way to mess up little Susie’s hair. You never know what kids will do. Old refrigerators pose hazards as hiding places with the threat of asphyxiation, so always take off the door when you discard one.
Almost anything could be dangerous to a small child who cannot appreciate the risks posed. The law usually distinguishes between man-made hazards and naturally occurring ones, in terms of responsibility for an accident. Mother Nature’s brook, small ravine, ditch or hill with a sudden drop off on your property is usually not your responsibility to alter. But a fence might help, and you may prevent an accident nevertheless. Sometimes doing too much by altering the natural environment may create liability for yourself. Adding that fence might trick someone into thinking that this is a safe area, when its not. So it may be prudent to consult a lawyer if you feel the natural condition is dangerous, and you don’t feel comfortable leaving it alone. Remember, you have your own children to protect, regardless of the minimum standards of the law.
If you do find children wandering on your property, find out who they belong too, and inform their parents. Being neighborly is fine, but this is serious business. Keep in mind that the law is always changing, and protecting kids is one of its highest priorities. Nothing prevents you from thinking ahead and going beyond what the law envisions, to make things safer. Just think, if you foresee a danger and prevent it, perhaps with a fence, or by a periodic inspection of your property, you may save a child from harm. You may not know the extent of the harm your efforts prevented, if the accident never happens, but you will have done a good thing. Your actions will have also reduced your exposure to a lawsuit.
Robert Ricco, an attorney admitted to practice in New Jersey and New York, lives in Bergen County. He welcomes questions from readers about legal issues affecting everyday life in suburbia. This column is not intended to be a comprehensive summary of recent developments in the law nor is it intended to provide legal advice or to render a legal opinion. Readers are advised to consult their own attorney for legal advice.