Attractive Nuisance Doctrine
The attractive nuisance doctrine was developed as an exception to the general rule that a landowner owes no duty to a trespasser except to refrain from causing willful and wanton injury. The doctrine mainly stands for the benefit of children. The doctrine recognizes that children, because of their various ages and levels of maturity are incapable of understanding or appreciating dangers or risks on the premises[i].
According to the doctrine, a landowner will be held liable for injuries to children trespassing on the land, if the injury is caused by any hazardous condition or object on the land, that is attractive to curious children who are unable to understand the risk involved in such condition or object. For example, a landowner will be held liable for injuries caused by abandoned cars, unguarded swimming pools, open pits, and abandoned refrigerators. Hence, the doctrine, as a general rule, obligates landowners to exercise reasonable care to safeguard children from dangerous conditions on their property[ii].
In Jarvis v. Howard, 310 Ky. 38 (Ky. 1949), the court observed that a good definition of the doctrine is that “one who maintains upon his premises a condition, instrumentality, machine, or other agency which is dangerous to children of tender years by reason of their inability to appreciate the peril therein, and which may reasonably be expected to attract children of tender years to the premises, is under a duty to exercise reasonable care to protect them against the dangers of the attraction”.
It was in R.R. Co. v. Stout, 84 U.S. 657 (U.S. 1874), that the doctrine was established. In that case an injury was sustained by a child while playing upon an unguarded, unlocked railroad turntable. The court while holding the railroad company that owned the turntable liable, observed that the defendant’s knowledge that children were playing on the turntable was sufficient to constitute the liability, even if the child was concededly a trespasser.
The doctrine is based upon the theory that the thing which lures or attracts a child of tender years is equivalent to an invitation to the child to play with the dangerous instrumentality. Hence, the owner has a duty to take reasonable precautions to protect the child against the dangers of the attraction. But every instrumentality attractive to a child does not constitute an attractive nuisance[iii].
The elements of the doctrine are as follows:
- “that a condition or instrumentality existed which was dangerous in itself and likely to or probably would cause injury to those coming into contact with it;
- that it was attractive or enticing to young children;
- that plaintiff was incapable, by reason of his age, of comprehending the danger involved;
- that it was left unguarded and exposed at a place where children of tender years were accustomed to resort, for play or amusement or gratification of youthful curiosity; and
- that it was reasonably practicable and feasible either to prevent access by children or else to render it innocuous without obstructing any reasonable purpose or use for which it was intended”[iv].
Pursuant to the doctrine, the common law duty owed to a child trespasser is different from that owed to an adult trespasser. With respect to a trespasser, the duty of a landlord is only to refrain from injuring a visitor by willful or wanton conduct. While in the case of a trespassing child, a landowner owes an additional duty to exercise reasonable care to avoid conduct constituting ordinary negligence[v]. The basic reason for imposing additional care to child trespassers is the child’s inability to protect them against the peril encountered due to immaturity and lack of judgment.
However, the doctrine applies only in the following circumstances[vi]:
- where the presence of children could be reasonably anticipated; and
- where measures to protect children can be adopted without placing a heavy burden upon the owner’s unrestricted use of the land.
Hence, the doctrine is rendered only a limited application and is employed only with caution. The doctrine is not applied in the following cases:
- where the doctrine imposes a tremendous burden on a property owner;
- where the use of land is dangerous only to trespassers and the courts are reluctant to impose a restraint upon an owner’s use of land; and
- where it is in derogation of the ordinary rules of negligence.
Since the classification of children as trespassers, licensees, or invitees is not a controlling factor in applying the doctrine, several jurisdictions have applied the doctrine in situations where it was difficult determine a child’s status as an invitee or a licensee.
In general, most states have adopted either the doctrine itself or some variation of it[vii]. However there are some states that have apparently or expressly rejected the doctrine, and in those states a landowner owes no duty to refrain from injuring child trespassers willfully or wantonly[viii]. Instead these states use the dangerous instrumentality doctrine, which does not require the element of attraction.
The doctrine is also known as turntable doctrine, trespassing child doctrine, the child trespasser exception, the infant trespasser, dangerous agency, or playground rule, the trap or implied invitation theory, or simply the special rule.
[i] Idzi v. Hobbs, 186 So. 2d 20 (Fla. 1966).
[ii] Kessler v. Mortenson, 2000 UT 95 (Utah 2000).
[iii] Jarvis v. Howard, 310 Ky. 38 (Ky. 1949).
[iv] Schneider v. Seattle, 24 Wn. App. 251 (Wash. Ct. App. 1979).
[v] Aponte v. Castor, 155 Ohio App. 3d 553 (Ohio Ct. App., Williams County 2003).
[vi] Nesmith v. Starr, 115 Ga. App. 472 (Ga. Ct. App. 1967).
[vii] Alabama Power Co. v. Guy, 281 Ala. 583 (Ala. 1967).
[viii] Moore v. Jimel, Inc., 147 Md. App. 336 (Md. Ct. Spec. App. 2002).