Avoid Attractive Nuisance Liability

Avoid Attractive Nuisance Liability

September 01, 2022
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“Attractive nuisance” is a term of art used in legal circles and the insurance industry. It describes an object or condition in a home or on a property that both attracts children and presents a significant risk to their well-being or safety.

Attractive nuisance exposures are common and include pools, koi ponds and fountains as well as playsets, trampolines and even discarded appliances, non-working vehicles, functional power tools and weapons.

The American legal system has long recognized that certain objects or conditions on a person’s property may irresistibly draw children. Courts also can hold property owners liable if children are injured or killed by those conditions.

Homeowners who have a dangerous item on their property have a legal responsibility to reduce the risk of harm to children.

To best serve homeowners, it’s wise for you to refresh their knowledge about attractive nuisances, specifically regarding five points:

  1. What defines an attractive nuisance?
  2. What liability exposures do attractive nuisances present to homeowners?
  3. What are examples of attractive nuisances for homeowners?
  4. What risk management steps can agents suggest to homeowners?
  5. Does homeowners insurance provide coverage for attractive nuisance claims?

While the legal doctrine of attractive nuisance also applies to industrial, commercial, agricultural and other properties, this article is limited to the impact of attractive nuisance doctrine to homes and homeowners.

What defines an attractive nuisance?

"A child at play knows no boundary lines beyond which he may not go, especially when there is an instrumentality on or condition of the land beyond the boundary to which he is attracted." – Robert F. Boden, “Elements of Attractive Nuisance,” Marquette Law Review, Winter 1950-51

Homeowners might naturally assume that a trespasser (someone entering their property without permission) is responsible for their own behavior and injury. Attorneys, judges and others see it differently when it comes to children.

The U.S. legal system made a judgment decades ago holding homeowners financially liable for injuries to children who enter their property attracted by a feature or condition. The basis of that new “attractive nuisance” doctrine was that children are inherently curious and may lack the ability to see the danger in certain activities.

Attractive nuisance liability arises from the broader legal principle of “premises liability.” Simply, property owners are responsible for injuries suffered on their property if it’s shown they were negligent in handling and/or maintaining the property.

In a homeowner’s world, an attractive nuisance could be a swimming pool with an unlocked gate on a 90-degree summer day. A child might not have the awareness that going in a neighbor’s pool alone could be dangerous.

What liability exposures do attractive nuisances present to homeowners?

Local, state and common law precedents call for homeowners to use reasonable precautions to protect the safety of people (including children) on their property. This encompasses trespassers as well as family and invited guests.

If a reasonable person can foresee a risk from a situation on a property and the homeowner hasn’t taken actions to prevent injuries, they can be liable for injuries to a visitor, including an uninvited child.

A key element for courts’ application of the attractive nuisance doctrine is the age of the child. Statutes and case law don’t always draw a bright line for when a child can recover damages from a homeowner. The younger the child, the more likely the landowner could be liable. In the swimming pool example, if a 15-year-old teenager were to climb a fence and enter a pool, that teen might be considered old enough to understand the risk.

Another mitigating factor that might shield a homeowner from liability is whether the child was instructed to stay away from the property.

Keep in mind, courts under common law have drawn a distinction between a naturally occurring feature that attracts children (such as a creek) and an artificial feature (such as a garden fountain). Common law also has conceded that children can understand some dangers, such as the chance of getting burned by fire or the dangers of falling from a height.

Typically, for attractive nuisance claims to impose liability on a landowner, a claimant or plaintiff must demonstrate the landowner:

  • Created or maintained the potentially hazardous feature
  • Knew or should have known the condition attracted children
  • Should have known the condition could potentially harm children
  • Failed to take action to protect children from the hazard

In short, a homeowner can be found responsible if they fail to use a standard of care that a reasonable person would have used with an attractive nuisance.

Courts have been known to consider the cost for the homeowner to remedy the condition that led to the attractive nuisance claim. The court might compare the cost of the remedy against the risk to children.

In the eyes of a court, reasonable precautions are actions such as using locked fences around a swimming pool and moving hazardous objects to reduce access to them. By contrast, a simple step such as hanging “no trespassing” signs might not reduce homeowners’ liability for attractive nuisances, because some children can’t yet read or understand such a sign.

One clear takeaway for you to educate homeowners: The law (through ordinance or through negligence and liability claims) may impose a heightened duty on landowners to safeguard children when a condition on their property poses a danger.

What are examples of attractive nuisances for homeowners?

Claimants and defendants argue on a case-by-case basis whether an object or condition is an attractive nuisance. History shows that the following situations can be attractive nuisances:

  • Swimming pools
  • Playground equipment and swing sets
  • Weapons
  • Trampolines and zip lines
  • Tree houses
  • Open wells
  • Outside or discarded appliances (such as refrigerators)
  • Outdoor power tools and equipment
  • Vehicles
  • Fish ponds and decorative fountains
  • Ladders and scaffolding
  • Construction materials and equipment
  • Building sites and open pits/holes
  • Farm equipment

Trampolines are a special safety concern of pediatricians. The Journal of Pediatric Orthopaedics reported more than 1 million trampoline-related emergency room visits per year, many involving head and spine injuries. In fact, some insurance carriers may not be willing to issue coverage for homeowners with certain equipment, such as trampolines.

What risk management steps can agents suggest to homeowners?

An important guideline for any homeowner is to keep dangerous objects or conditions as inaccessible as possible. Landowners can take safety precautions to help prevent foreseeable injuries. Steps include:

  • Removing refrigerator doors to avoid suffocation risks when items are put out for pickup
  • Locking power tools away and securing large equipment
  • Removing keys from vehicles parked outside and removing abandoned vehicles from the property
  • Putting up fencing around a home renovation or construction project
  • Covering holes and ditches for a building project

Does homeowners insurance provide coverage for attractive nuisance claims?

Homeowners insurance typically covers liability claims, including those caused by attractive nuisances. But homeowners are wise to consider whether the liability insurance limit in a homeowners policy is adequate for the risk they face. You can advise homeowners with swimming pools, trampolines or other attractive nuisances to increase their policy limits and/or add coverage under a personal umbrella policy.

For example, a $100,000 liability limit may be woefully inadequate if a child is killed or suffers a serious injury on a homeowner’s property.

An umbrella policy provides “high limits of liability to protect an insured against a catastrophic liability loss,” according to the International Risk Management Institute. This liability coverage “stacks on top of the liability coverage” from an insured’s homeowners, personal auto or watercraft policies. Umbrella policies usually cover bodily injury, property damage and personal injury.

Beyond simple financial protections, an insurance professional’s advice may save a life or prevent a life-changing injury.

Blue Ridge Risk Partners is a top 75 independent insurance agency in the United States. With 22 offices and counting throughout Maryland, Pennsylvania, and West Virginia and access to hundreds of carriers, we are able to meet your unique insurance needs.