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Attractive nuisance doctrine
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Under the attractive nuisance doctrine of the law of torts, a landowner may be held liable for injuries to children trespassing on the land if the injury is caused by a hazardous object or condition on the land that is likely to attract children, who are unable to appreciate the risk posed by the object or condition. The doctrine has been applied to hold landowners liable for injuries caused by abandoned cars, piles of lumber or sand, trampolines, and swimming pools. However, it can be applied to virtually anything on the property of the landowner.
According to the Restatement of Torts second, which is followed in many jurisdictions, there are five conditions that must be met in order for a land owner to be liable for tort damages to a child trespasser. The five conditions are:
- The place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
- The condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children,
- The children because of their youth do not discover the condition or realize the risk involved in inter-meddling with it or in coming within the area made dangerous by it
- The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
- The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children
(See Restatement of Torts §339)
While putting up a sign to warn children regarding the danger of the land may exempt the landowner from liability, it will not work in all situations.citation needed This is particularly true when the child cannot read the sign. Usually the landowner must take some more affirmative steps to protect children.
Each one of the five conditions must be met in order for the landowner to be liable for tort damages.
States that use the Restatement test include:
There is no set cut off point that defines youth. The courts will evaluate each "child" on case by case basis to see if the "child" qualifies as a youth.
Under the old common law, the plaintiff (either the child, or a parent suing on the child's behalf) had to show that it was the hazardous condition itself which lured the child onto the landowner's property. However, most jurisdictions have statutorily altered this condition, and now require only that the injury was foreseeable. All landowners should carry appropriate Public liability insurance
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