Owner of Property May Be
Liable for Injuries to Trespassing
Children, When There is an Attractive Nuisance
11/20/05
Dear
Mr.
Duman:
I
have
purchased a house, which requires major rehabilitation.
A mound of dirt about five feet high has
been placed in the front yard, which we will use for fill in the future.
Several
young
boys in the neighborhood have been climbing and playing on the loosely
compacted mound of dirt. These kids
have been able to gain access to the property despite the fact there is
a
temporary fence. Although nobody has
been hurt, the loose dirt presents a hazard.
According
to
my neighbor, the front yard is an
“attractive nuisance” due to its obvious appeal to the neighborhood
children,
and as a result, I could be potentially liable for any injuries
sustained by
these kids, even though they are
trespassing.
What
exactly
is an "attractive nuisance, and is it true that I can be held liable
for
injuries to the children?
C. N., Redwood City
Dear
C. N.:
To the extent
that an "attractive nuisance" is proven to exist on your property, you
may be held liable for the injuries and damages resulting from it.
"Attractive
nuisance" is an older principle of law, which refers to the liability
of
an owner or possessor of real property for the physical harm to
trespassing
children resulting from an artificial condition on the land which young
children would be tempted to access or explore.
Under earlier
law, those who were deemed to be "trespassers” were limited in their
right
to recover damages from the owner of the property, when they sustained
injuries
while trespassing. The law regarding
"attractive nuisance" was developed as an exception to that earlier
law and created liability for injuries to trespassing children.
Although the
law now offers more protection for trespassers, the principle of
“attractive
nuisance” is still applicable. Its
underlying premise is based upon the accepted beliefs that: (1) Young
children
are limited in their ability to fully assess or understand the physical
risks
posed by dangerous conditions on real property; and, (2) There are
certain
types of conditions, which are seen as inherently likely to entice and
attract
children to enter onto the property and expose themselves to the risk
of
injury.
An owner’s
liability for "attractive nuisance" requires that the dangerous
condition be the result of an "artificial condition" of the land, the
nature of which would be commonly viewed as posing an unreasonable risk
of
death or serious bodily harm to children. The determination of whether
or not
an “attractive nuisance” exists is determined in the courts on a
case-by-case
basis. Commonly cited examples of “attractive nuisances” include
construction
sites and swimming pools.
Liability for
an owner in possession of land occurs, when the owner or possessor of
land
knows or has reason to know that children are likely to trespass and
that the
condition creates an unreasonable risk of serious bodily harm to
children,
because of their youth.
A property
owner’s liability for "attractive nuisance" will depend on the
relative age and maturity of the injured minor and the extent the child
was
capable of assessing and comprehending the nature of the danger
present.
Liability for
the owner or possessor of land has been limited in cases, where it was
shown
that the injured child was mature enough to recognize or comprehend the
existing danger, or when the minor was fully aware of the wrongfulness,
or
commits a theft or other crime.
The doctrine
of "attractive nuisance" may
not be applicable to situations, where a child is injured while
on the
property by invitation or consent; however, liability for the owner or
possessor may still exist under different theories of law.
Our readers
having questions concerning the subject of "attractive nuisances"
should consult with their personal lawyer, for specific attention.
FD772 11/11/05
4\column\attract2.nui
Readers may address their
questions to The Real Estate
Lawyer, Fred M. Duman, 2807 Castro Valley Boulevard, Castro Valley, California
94546. Mr. Duman will answer those of
general
interest in his column. He reserves the
right to edit the letter for brevity and clarity.
Each real estate problem
usually has its own distinct
circumstances, and frequently is more complicated than realized by a
layperson. Readers are also encouraged
to consult with their own lawyers to obtain guidance concerning their
problems
when they first arise.
Readers are cautioned that
these answers are not intended
to be the basis for any action or reliance by the reader.
You are welcome to
visit our web site at “www.dumanlaw.com”.
© 2005, Fred M. Duman All Rights Reserved. Please see our disclaimer.
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