Jessica, a five-year-old girl, wandered into her neighbor's yard. The yard wasn't enclosed by a fence and Jessica had no trouble at all in finding her way. There was no fence around the pool and the cover was off. Also, the neighbor had recently begun construction of an addition and a small bulldozer was also on the property. Jessica first climbed onto the bulldozer. She found the keys still in the ignition. She decided to investigate the yard further before going for a ride in the bulldozer. Although she was unable to swim, Jessica jumped in the pool and nearly drowned. Jessica's parents filed a legal action against the neighbor in an effort to recover for her personal injuries.
Generally speaking, an owner of real property owes no duty to a trespasser, other than to avoid willfully, wantonly, or deliberately harming the trespasser. In some circumstances, however, the owner of real property has an obligation to exercise reasonable care in order to prevent trespassing children from injury. By virtue of the attractive nuisance doctrine, a property owner will be liable in the event that the property owner fails to exercise such reasonable care.
Liability under the attractive nuisance doctrine arises when a child's injury was caused by an artificial condition that was present on the property, the child was attracted onto the property as a result of the artificial condition, the property owner knew or should have known that the artificial condition created an unreasonable risk of harm to children, the child lacked the apparent ability to realize the risk, and the property owner failed to exercise reasonable care to protect the child from harm.
An attractive nuisance must be created or maintained by a property owner. It must be something that would likely lure a child onto the property. Some examples of attractive nuisances are swimming pools, manmade ponds, an unattended power saw, and objects often found at construction sites.
While the rationale behind the attractive nuisance doctrine was to protect young children, older children may be protected as well. The issue is whether the child lacked the apparent ability to appreciate the risk.
Is a property owner required to childproof their property? No. The property owner is merely required to take reasonable precautions to prevent injuries to trespassing children.
In addition to the attractive nuisance doctrine, the care required of a property owner may be governed by state or local laws. The laws vary widely from state to state, and the relevant state law must be consulted for details.
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