Attractive Nuisance Doctrine

The so called "attractive nuisance" doctrine is a special rule in premises liability cases that holds property owners liability for injuries to children who are enticed into trespassing onto the property by some sort of attractive feature (e.g., a swimming pool, pond, treehouse, fire pit, trampoline, swing sets, etc.).

Normally someone who is injured while violating trespassing laws is not entitled to sue the property owner for premises liability. The attractive nuisance doctrine creates a significant exception to this limitation.

If the owner of a house or a business invites or allows people onto their property, they have a legal obligation to maintain the property in a reasonably safe condition so that those people don't get hurt.

If someone is allowed onto the property and gets injured by a hazardous condition the property owner can be sued for premises liability.

A premises liability plaintiff only needs to show that the property owner (or its employees) knew about the hazardous condition or had "constructive notice" of the hazardous condition. Constructive notice basically means that even if the property owner was not actually aware of the condition, they reasonably should have known about it under the circumstances.

For purposes of premises liability a "hazardous condition" can include any physical or environmental condition or element of the property that has the potential to injure people. This can include temporary conditions that arise from lack of maintenance or repair such as a wet floor, an icy sidewalk, or falling ceiling tiles.

Hazardous conditions can also include things like operational or design defects such as poorly lit stairwells, lack of a fence or railing, or failure to provide proper security. Other miscellaneous types of "hazardous conditions" property owner can be liable for include dog/animal attacks and environmental toxins like lead paint or asbestos.

Normally, the law of premises liability only applies to people that the owner allows or invites onto the property. People who enter the property unlawfully without the owner's consent are trespassers. Property owners do not have a legal obligation to maintain a safe environment for trespassers.

Trespassers generally cannot sue the property owner if they are injured by a hazardous condition or activity. This makes a lot of practical sense. If a burglar breaks into a house they shouldn't be allowed to sue the homeowner if they slip on wet stairs and break their neck or get attacked by the family dog.

The "attractive nuisance" doctrine is an exception that allows child trespassers to sue for premises liability under certain circumstances.

The doctrine basically says that if there is something on a property that is attractive or curious to children (e.g., unfenced swimming pool, trampoline, abandoned structures, etc.) the owner can be liable if a child trespasses and injures themselves on that attraction.

For the attractive nuisance doctrine to apply, some or all the following elements will need to be shown depending on the jurisdiction:

• Property owner knew or should have known that children were likely to trespass onto the property because of some enticing or attractive feature.
• Property owner knew or should have known that there was a hazardous condition on the property that could injure trespassing children.
• Child trespasser was too young to understand the potential danger involved
• Property owner failed to take reasonable steps to prevent children from accessing the attractive feature (e.g., putting a fence up around a pool).

See Restatement (Second) of Torts § 339.

Importantly, the Restatement states that the victim need not have been injured by the attractive nuisance itself for the attractive nuisance doctrine to apply. § 339(c). So if you are lured in by the swimming pool, you might get injured by something unrelated to the swimming pool and liability may still attach.

The attractive nuisance doctrine has not been universally adopted and Maryland is among the states that have declined to follow the rule of attractive nuisance.

The Maryland Court of Appeals has specifically and repeatedly declined to adopt the attractive nuisance doctrine. See, e.g., Herring v. Christensen 252 Md. 240, 241 (1969); Wells v Polland, 120 Md. App. 699 (1998). This has led to some seemingly harsh results in prior cases.

In Herring, a toddler wandered onto the defendant's unfenced property and was injured by a trash fire. In another case a 3-year-old fell into an uncovered concrete well hole in a housing project. In both of these cases premises liability was denied based on Maryland's refusal to follow the attractive nuisance doctrine.

This does not necessarily mean, however, that child trespassers in Maryland cannot sue for premises liability. This is particularly true for swimming pools, which are probably the most prevalent of all attractive nuisances.

Maryland statutory law requires property owners to erect fences around swimming pools and sets minimum height and design requirements for those fences.

On top of this, many counties have enacted local regulations which increase the minimum height and safety requirements for fencing around pools. If a property owner has a swimming pool and fails to comply with these fencing regulations, they can be sued for premises liability if a child trespasses and drowns in the pool.

Below is a brief summary of some local county requirements for fences around swimming pools:

• Minimum = 5 feet
• Not easy to climb and well maintained

• Minimum = 4 feet
• No more than 2 inches off ground
• Maximum gap of 1.75 inches between slats; 2.25 inches for chain link
• Gates latches can be no more than 3 inches from top of the fence

• Minimum = 6 feet
• Must not be "easy to climb"
• Openings must be less than 4 inches
• Gates must be 4 feet wide, have lockable latch, and swing out away from pool

• Minimum = 42 inches
• No openings over 4 inches
• Gates must be self-latching and close automatically

• Minimum = 6 feet
• Gate latches must be at least 54 inches from ground and self-latching
• Entry points must be near shallow water

• Minimum = 4 feet
• 2 inches max from ground
• No openings more than 4 inches
• Gates must be self-closing and self-latching

Below are verdicts and reported settlements in cases from around the country in which the attractive nuisance doctrine was applied to hold a property owner responsible for injuries to trespassing children.

• Minor Plaintiff v Property Owner (Massachusetts 2018) $1.2 million: 3-year-old toddler and his brother leave their backyard in search of family dog and trespass onto a neighboring property. The property is a construction lot with a large, open hole for the foundation of a house with 3 feet of water at the bottom. Toddler falls into the hole and suffers neurologic damage after nearly drowning. His parents sue the builder/property owner under theory of attractive nuisance and the case is settled for $1.2 million.
• Rafalowski v Hellrick (Pennsylvania 2017) $100,000: seven-year-old is enticed onto a farm by stacks of hay and farm equipment. As he is climbing onto farm tractor a spring loaded lever flips backwards and strikes boy in the face. He suffers nasal facial hematoma and other facial damage requiring several corrective surgeries. Case is settled for $100,000.
• Ramos v Camden Property Trust (Florida 2016) $2.6 million: 10-year-old boy lives with his mother at an apartment complex near Tampa. Boy and his friend sneak into the adult-only gym at the apartment complex and are playing catch with a ball. The ball goes under a treadmill that is running at fully speed and when the boy reaches under the get ball his arm gets pulled into the machine and he breaks several bones and suffers a de-gloving injury (where the skin is pulled completely off the hand). The injuries leave him with a 20% permanent disability. He sues owner of the apartment complex under attractive nuisance doctrine and jury awards $2.6 million.
• Gray v Toland & Johnson (Oaklahoma 2013) $350,000: male plaintiff is 17-years-old when he and some friends sneak into an oil-well site through a hole in the chain link fence. While playing around on the well equipment his arm gets stuck in the moving derrick arm of the well pump and severely crushed. His injured arm has to be amputated below the shoulder. He sues the owner of the oil alleging the site was an attractive nuisance and the owner failed to maintain an adequate fence. The case settles for only $350,000 which is a small amount for an amputated arm. The value of this case was probably driven down because the boy was 17 at the time and arguably old enough to appreciate the dangers of playing on an oil rig.

The personal injury lawyers at Miller & Zois handle premises liability cases when they involve major physical injuries, particularly major injuries to children. If you have a potential premises liability or attractive nuisance case we would like to hear about it. Call us at 800-553-8082 or request a consultation online.