Attractive Nuisances and Your Legal Responsibilities

Are You Responsible for an Attractive Nuisance?

The attractive nuisance doctrine is a legal framework that establishes that children trespassers differ from adult trespassers and that homeowners and other property owners have a special responsibility to protect children. Each state has its own laws that interpret this doctrine, and personal injury attorneys note that the court will often limit liability based on various factors, such as whether the danger was apparent and/or the nuisance was maintained.

Children Trespassers

Generally, in order to impose premises liability, the injured party must have the status of either an invitee or an licensee, which in both cases means that they were authorized to be there. Trespasser is a third potential status, and in such cases, the property owner has a much lower duty of care. They may have minimal responsibility to the injured party or no obligation at all. However, children are a special case. Whether they are an invitee, licensee or trespasser, the duty of care is much higher. With this in mind, the attractive nuisance doctrine was established as an exception to the rule that a landowner bears no duty to a trespasser outside of not instigating willful or wanton injury.

Common Attractive Nuisances

An attractive nuisance is any object or situation that a child would find enticing. That definition is rather broad, but in most cases, the courts do limit the parameters. The first important fact to note is how typical the nuisance is. A homeowner has a greater responsibility when there are potential hazards that will clearly be alluring to children. One of the most prominent examples of a common attractive nuisance is a trampoline. Not all states view trampolines as attractive nuisances, and in those that do, there can be many extenuating factors, such as whether the yard had a fence and whether or not the trampoline ladder was attached. Other typical attractive nuisances include:

• Animals
• Fountains
• Tree houses
• Swimming pools
• Wells and tunnels

Non-Maintained Attractive Nuisances

In most cases, an object has to be manmade in order for it to be considered an attractive nuisance. A naturally occurring pond, for instance, would not be whereas a manmade pond may be. There is also the concept of whether the object is maintained. Maintaining something raises your potential responsibility. A naturally occurring pond may be deemed an attractive nuisance if you maintain it, and a manmade pond may not if it has been abandoned and is no longer cared for. There is gray area when it comes to maintenance as well. If you trim the tree branches in your yard, you technically maintain them, but if a child climbed a tree and fell, you likely would not be held responsible based on that fact.

Apparent Dangers

The courts generally recognize that there is the potential for children to hurt themselves on practically anything and virtually anywhere. Most state interpretations of the doctrine include the concept of an apparent danger. Fire pits are a good example of an apparent danger. Because there is the reasonable expectation that a child should know not to touch fire, fire pits are generally not considered an attractive nuisance. It is for this same reason that wild animals and fenced animals are usually not deemed attractive nuisances.

Protect Your Legal Rights With Local Representation

If you have a child who has been harmed due to an attractive nuisance, the law office of Rebenack, Aronow and Mascolo is here to help. Our law firm has considerable experience with handling these types of personal injury cases in New Jersey. Meet with one of our personal injury attorneys to discuss your case. You can contact us online. We also have three locations. You can reach our Freehold office at (732) 828-2234, our New Brunswick office at (732) 247-3600 and our Somerville at (908) 448-2560.