Swimming pools, Construction Sites, Manmade ponds, lakes and fountains, discarded appliances, abandoned automobiles, farm equipment, drainage ditches, trampolines, jungle gyms, playsets, and tree houses. What do they all have in common? These can all be considered an attractive nuisance under the attractive nuisance doctrine.
Under attractive nuisance law, a landowner can be held responsible if a child is injured by an “artificial condition” on the landowner’s property and all five of the following criteria are met:
- The landowner knows (or should know) that children are likely to trespass on the property.
- The condition on the property has the potential to cause death or serious bodily harm to children.
- The children involved are too young or inexperienced to understand the risk presented by the condition.
- The benefit of maintaining the condition or the cost required to remedy the condition is minimal compared with the risk to children.
- The landowner fails to take reasonable measures to eliminate the danger posed by the condition.
A few things to keep in mind: The law doesn’t expect children to fully comprehend the dangers they may face and if a property owner has reason to believe that children might come onto their property, the law places a special responsibility on them to prevent harm. If an owner fails to meet this responsibility, they will most likely be held liable for the child’s injuries.
Limiting your liability for injury caused by attractive nuisances comes down to common sense. Think about what could possibly go wrong that could result in an accident. Have you done everything you can to prevent such an incident? Reduce your risks now, before accidents occur.
Let’s talk about insurance: Liability Insurance can’t make attractive nuisance safer but it can protect you from financial losses.
Some carriers may have underwriting guidelines which state they will not insure some of these things. There are instances where if the insurance company finds out about an exposure (most do inspections of the property they insure) that they are not comfortable with, they can cancel the policy. As always if you have something that can be classified as an attractive nuisance it is vital that you disclose to your agent and insurance company completely. There are policies that cover attractive nuisances and you can be correctly covered.
There are 3 ways that insurance policies cover attractive nuisances. Let’s use a trampoline as an example.
No Exclusion- Policies can have no exclusions, so that your liability coverage will cover medical bills or a judgement for damage caused by the trampoline and your personal property coverage will cover damage to the trampoline.
Coverage with safety precautions– The policy will specify certain precautions that must be maintained in order to be covered, for example insisting on net enclosures or a fence around the property. Failure to comply with these precautions can result in a claim being denied.
Specific Exclusion– ex Trampoline Exclusion- The carrier will issue a policy for the property and home but will not cover trampoline-related claims. If you add a trampoline after the policy is written it may mean your policy won’t be renewed or will be cancelled.
As the owner of the property, you are responsible for assuring that visitors, guests and trespassers are safe and avoid injury. Here are some common ways to prevent any accidents:
- Prevent Access: Install secure, high fences and locked gates to prevent easy access to the nuisance.
- Discard Dangers: Remove doors and lids from old household appliances that pose a suffocation hazard.
- Lock Parked Vehicles: Always keep doors, hatches and trunks of parked cars locked with windows, sunroofs and convertible tops closed.
- Protect Work Sites: Enclose work sites in safety fencing to keep curious children out and away from tools and building hazards.
- Enclose Open Hazards: Pay particular attention to drainage ditches, excavation trenches, wells, cisterns, holding tanks, and open pits where children may fall and become trapped.
- Minimize Attractiveness: Hide the nuisance behind fences or hedges. This is especially important if your home is located near where children play.
- Secure Playthings: Don’t assume structures designed for kids are hazard-free. Lock down skateboard ramps, trampolines, jungle gyms, play sets and tree houses.
Construction sites are considered an attractive nuisance. The property owner has a duty to minimize the danger from an attractive nuisance. Contractors are also liable for the maintenance and security that the property needs so that it remains safe for all visitors, even uninvited little ones. This includes the following:
- Ensure perimeter fencing surrounds the entire jobsite. Check daily that there are no openings through which a child or other intruder could enter.
- Post Construction Area warning signs warning the public to keep out around the perimeter and at all entry points.
- Close and lock all gates when leaving the site.
- Notify local police of the jobsite and its hazards.
- At the end of each work shift, secure all materials and lock up tools and equipment.
- Do not leave keys in vehicles or construction equipment.
- Barricade trenches and excavations, and securely cover any holes or pits.
- Eliminate access to elevated fall hazard areas.
- Be sure dumpsters are kept covered/closed.
- Provide exterior lighting at night.
Keeping Up the Premises
- Fixing cracks or gaps in walkways to avoid slip and fall dangers
- Locking all hazardous tools, equipment and chemicals away from the public
- Ensuring that employees can conduct work duties without the risk of injury
- Hanging flood lights in areas with low visibility
- Taking steps to install wireless electronic alarms or security doors and screens
- Installing rescue equipment
- Installing alert devices, such as flashing lights, sirens, alarms and telephones to alert security that someone has trespassed onto the premises
In attractive nuisance cases, negligence means that the contractor was aware that someone could be injured on the property and did nothing to prevent it. If you take all necessary precautions to prevent injury on site, you are less likely to be found negligent in a premise liability suit.