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The “attractive nuisance” doctrine explained

The attractive nuisance doctrine was originally conceived to protect children who may trespass without fully understanding the risks. “Attractive” typically means that children may see the property or object as something to play in or around, such as:

  • Construction sites, with their unfinished buildings, open pits, and trenches.
  • Swimming pools
  • High-voltage lines and towers
  • Abandoned freezers and refrigerators
  • Abandoned automobiles

Under the attractive nuisance doctrine, New York property owners can be held liable when a child trespasses on their land and is injured by a known and potentially dangerous object or condition. For them to be legally responsible for such injuries, the following must be proven:

  • The hazard, such as a swimming pool or discarded appliance, is in a place on the property where the owner knows, or should reasonably know, that children may trespass
  • The hazard is an object or condition that the property owner should reasonably understand to be a danger to trespassing children
  • The children are of an age that they cannot understand that the object or condition might injure them if they get too close to it
  • Keeping the object or condition and the burden of preventing children from accessing it are both minimal compared to the risk they present to trespassing children
  • The property owner did not exercise reasonable care to prevent children from being harmed by the object or condition

At one time, the parents or guardians of injured children were required to prove that the children were lured onto the property in the first place because of the attractive nuisance. For example, a child who accessed a neighbor’s property to get to their swimming pool was arguably lured to the attractive nuisance while a child who took a shortcut through the neighbor’s yard to go to the candy store and happened to see the pool was not. Today, the majority of New York courts will hold the property owner responsible if the injury was foreseeable. The child’s reason for entering the property is no longer a factor.

What is a “child?”

There is no universal standard for who counts as a “child” in an attractive nuisance case. Courts tend to apply the description on a case-by-case basis. For example, toddlers and younger children will practically always be considered “children” in an attractive nuisance injury case, while young people of more discerning age, such as ten and up, may not be considered a “child” in a particular incident. In these cases, if an injured child is of an age and stage of development that they should understand the danger involved, the attractive nuisance doctrine will not apply.

What is “reasonable care?”

When determining a standard of reasonable care required to keep children away from the hazard, courts take into account the ages of the young people most likely to trespass. For example, posting a warning sign at a construction site would be a reasonable precaution if the probable trespassers are old enough to read.

If your child was injured while trespassing, then the attractive nuisance doctrine may apply to your case. A New York personal injury attorney can review the circumstances and advise you on how the law will apply. Jayson Lutzky is an attorney with over 34 years of experience who handles personal injury cases. You may be entitled to cash compensation if you were injured. Mr. Lutzky offers free initial in-person consultations and can be reached at 718-329-9500 or www.mynewyorkcitylawyer.com. In the event of a serious injury, home and hospital visits are available.

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