Attractive Nuisance Doctrine

The law of attractive nuisance is a legal doctrine that can hold property owners liable for structures on their property that are attractive to children and may pose a risk that the child is unable to comprehend or appreciate. One of the most common applications of the attractive nuisance doctrine regards swimming pools, especially pools that have toys, diving boards, or other aspects which make them attractive to children. If a swimming pool is not properly secured, a child may trespass, enter the swimming pool, and suffer injuries such as drowning as a result.

Typically, there are five conditions that must be satisfied in order for the doctrine of attractive nuisance to apply and hold the property owner liable.

The property owner should reasonably expect that children are likely to trespass. This typically applies to structures such as swimming pools, piles of debris, abandoned cars, playscapes and trampolines, but anything that could feasibly entice a child to trespass may be considered satisfactory for this criterion.
The property owner should reasonably know that the structure poses a risk to children. This can be open to a wide interpretation, as it is often difficult to determine what could reasonably pose a risk to children. The attractive nuisance doctrine has been applied to numerous structures, many of them relatively benign.
A child, because of their young age, must be incapable of understanding the risk posed. Although a risk may be reasonably apparent to an adult, a child may not be able to understand the risk of drowning associated with a swimming pool, or the dangers of a pile of debris or an abandoned car. The other implication of this criterion is that if the danger is so apparent that any person would recognize the threat, regardless of their youth, it may not qualify.
The cost associated with eliminating the risk must be minimal in comparison to the extent of the risk. The property owner cannot be expected to undergo an unreasonable amount of financial burden in order to eliminate the risk. For example, the cost of putting a lock on a gate surrounding a swimming pool is slight compared to the risk the pool poses to children. However, a property owner would not be required to build a twelve-foot high concrete wall, complete with razor wire and a security guard in order to prevent access to the pool.
The property owner must fail to eliminate the risk. Finally, the owner must neglect to take reasonable measures to mitigate the risk. In the further example, if placing a lock on the gate would successfully deter children and the owner fails to do so, he or she may be held liable if injury occurs.

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