What Is the Attractive Nuisance Doctrine?

fenced swimming poolThe attractive nuisance doctrine is a premises liability rule of common law in the United States that has developed as a way to hold land owners responsible for maintaining dangerous conditions upon their property that are likely to attract children who are unable to appreciate the danger.  Some common examples of conditions that the doctrine has been applied to are: unprotected swimming pools, lakes, trampolines, piles of sand or debris, old cars, or defect play structures.  Dangerous domestic animals are another possible use of this doctrine.

Attractive Nuisance vs Premise Liability Law

Under typical premises liability law, the duty a landowner owes to a trespasser is less than that owed to an invitee–a person invited onto the premises for the owner’s mutual benefit.  The attractive nuisance doctrine counteracts this burden to deter land owners from keeping unprotected conditions on their property that they should realize will attract kids.

Although there may be variances from state-to-state, in order for the doctrine to apply the following elements generally must be met:

  1.  The place where the condition exists is one where the land owner or occupier knows or should know children are likely to trespass;
  2. The condition is one that the owner or occupier knows or has reason to know involves an unreasonable risk of injury to the children;
  3. The children, due to their youthfulness do not appreciate the danger;
  4. The utility of maintaining the condition and the burden of eliminating or reducing the risk is slight in comparison to the risk involved to the children;
  5. The land owner or possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children.

Application of the Attractive Nuisance Doctrine

Generally, the Courts look to the age and mental ability of the individual child in question to determine if the child is able to appreciate the danger and whether any steps taken by the land owner to prevent the harm were reasonable.  For example, a “dangerous undertow – do not swim sign” may be sufficient to warn a a teenager, but a not a three-year-old.  Thus, the land owner must take into account the age and understanding of the potential trespasser. Furthermore, by statute, the Texas legislature limits the attractive nuisance doctrine to children 16 and under.

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Paul Cannon

Paul Cannon has practiced personal injury trial law since 1995. He is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization since 2005. He has earned recognition as a Super Lawyer by Thompson Reuters in 2017-2019, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association in 2017. He is a Shareholder, trial lawyer and online marketing manager at Simmons and Fletcher, P.C. His legal writings have been published by the Texas Bar Journal, Business.com, Lawyer.com HG Legal Resources, Lawfirms.com, and others. He has been asked to give educational talks and media interviews regarding personal injury law issues..