LIABILITY FOR INJURY CLAIMS UNDER THE ATTRACTIVE-NUISANCE DOCTRINE

January 22, 2013

Child Trespassing.jpgThe Attractive Nuisance Doctrine is an exception to premises liability claims brought by trespassers. It is typically applied to young children who trespass onto property as the result of some attraction on the premises. Under the Attractive Nuisance Doctrine, the premises owner owes the trespassing child the same legal duties it would owe to a business invitee. To establish a claim under the Attractive Nuisance Doctrine, the Plaintiff must prove the following:

(1)The child Plaintiff meets the definition of trespasser;
(2) The Defendant was an owner or possessor of the premises;
(3) The Defendant knew or should have known there was an artificial condition on the premises and that children were likely to trespass in the area around the artificial condition;
(4) The Defendant knew or should have known or realized the artificial condition posed an unreasonable risk of harm to trespassing children;
(5) The Plaintiff, due to youth, did not discover the artificial condition, or realize
the risk involved with it, or realize the risk involved in coming within the area made dangerous by the condition;
(6) There was a benefit to Defendant in maintaining the artificial condition and the burden of eliminating the danger were slight when compared with the risk to children;
(7) The Defendant breached its duty of exercising reasonable care by failing to eliminate the danger or otherwise protect the children; and
(8) The Defendant's breach proximately caused the Plaintiff's injury.

To be a trespasser, the child must have entered the Defendant's premises without permission or authority, and for the child's own benefit.

Artificial conditions do not include naturally occurring conditions such as lakes, rivers, trees, or creeks that have not been created or altered by the premises owner and these types of conditions do not obligate the premises owner to take measures of warning or protection. Only premises conditions that are artificially created and maintained can give rise to a claim under the Attractive Nuisance Doctrine. However, to establish liability, only the Defendant's express or implied knowledge of the artificial condition on the premises has to be be proven. It is not necessary to show that the Defendant created the artificial condition in question. Examples of artificial conditions to which the Attractive Nuisance Doctrine has been applied include: electric transmission towers, excavations filled with water, swimming pools and cement irrigation pipes.

Unless or until the Defendant receives information that would lead a
reasonable person to inquire whether children are trespassing onto his property, the
Defendant does not have an affirmative duty to inspect or inquire whether trespassing is
actually taking place. However, once the Defendant knows, or when a person of reasonable intelligence should know, that children are likely to enter the property, knowledge of the potential for trespassing onto the land will be imputed to Defendant.

The determination as to whether an artificial condition on the premises poses an unreasonable risk of harm depends upon whether a reasonably prudent person would foresee that harm was a likely result of the condition. But certain conditions do not qualify under the Attractive Nuisance Doctrine. For example, some courts have held that the open and obvious danger inherent in playground equipment removes such a condition from the purview of the Attractive Nuisance Doctrine.

Although the Attractive Nuisance Doctrine requires the child Plaintiff to qualify as a trespasser before application, Texas law does not place a specific age requirement for Plaintiff to qualify as a "child." However, despite the absence of an explicit age limit, the majority of the cases in which the Attractive Nuisance Doctrine has been applied, the Plaintiff has typically been a child of not more than twelve years of age.

Regardless of age, it must be proven that the Plaintiff was too young and inexperienced to appreciate the danger of the artificial condition. Factors such as the child's intelligence relative to peers in his age group or whether he suffered from any mental challenges, as well as the latency or hidden nature of the dangerous condition may be considered when assessing the Plaintiff's capacity to recognize and appreciate the danger. However, even in cases where the Plaintiff is either exceptionally intelligent or learning disabled, the child will be required to exercise the judgment of a person of that level of intelligence. Thus, to prove the required incapacity, the child must show that his youth and/or mental development prevented him from discovering the condition, realizing the risk presented by the condition, or realizing the risk in entering the area made dangerous by the condition.

The Plaintiff must also prove that there was a benefit to Defendant in maintaining the
artificial condition as a legitimate use of his land and that the burden of eliminating the
danger were slight when weighed against the severity of the risk to children posed by the artificial condition. Examples of situations where the severity of danger greatly outweighed the burden imposed on the premises owner to safeguard the danger include a case where a child drowned in a cattle dipping vat that had not been used for more than two years and could have been covered and sealed relatively inexpensively or where a Defendant could have easily erected a fence around an oil field pumping unit to deter children from climbing on it.

The duties owed to Plaintiffs under the Attractive Nuisance Doctrine are the same duties that are owed to invitees; that is, the duty to warn of or eliminate the dangerous condition. In order to recover, the Plaintiff must prove that Defendant's breach of that duty proximately caused the Plaintiff's injury. As with other negligence claims, the statute of limitations for claims governed by the Attractive Nuisance Doctrine is two years.

At The Law Office of Stephen O'Rear, P.C. we help people who have been injured due to the negligence of others.