Attractive Nuisance and Liability for Drowning Accidents

An interesting question that arises quite often in drowning accident wrongful death lawsuits is that of how much “duty” or “responsibility” is owed by a property owner to a visitor to the landowner’s property. The question to be specifically addressed in this blog post is “Is a property owner or a landowner liable for an injury to a visitor if the visitor is trespassing or otherwise does not have the property owner’s permission to be in an area?”

In general, the responsibility of a property owner to maintain his or her property is defined as “premises liability.” In premises liability the property owner can be held liable for any injuries that occur on a property that is under his or her control.

Fortunately, American civil law does recognize that different “classes” or “types” of visitors exist and that the property owner is not expected to grant each type of visitor the same degree of care.

The highest degree of reasonable care is owed to an “invitee,” someone who is on a property for the benefit of the property owner. The “classic” example of an invitee is a customer who visits a retail store, even though that person has exercised a personal option to visit or not to visit the store.

The next-highest degree of reasonable care is owed to a “licensee,” someone who is on a property with the permission of the property owner and the licensee desires to be on a property. Guests at a social function, such as a party, are usually considered to be licensees because they have the option of not attending the party. In the civil laws of most states, family members of the property owner are considered to be licensees. The property owner still has a duty to warn a licensee of any hazard or danger that is not readily obvious to the licensee and an owner cannot deliberately create a hazard that is intended to cause an injury.

The lowest degree of reasonable care is owed to a “trespasser,” where there is no duty owed with the exception of not deliberately causing bodily harm to a trespasser unless such harm is clearly inflicted in self-defense. While the trespasser is owed no duty of care, this duty is still owed to a child, even if that child knew that he or she was not allowed on a property except by the owner’s expressed permission. This is the legal doctrine known as “attractive nuisance.”

Under the civil laws of most states an attractive nuisance is any object that a child may be drawn to by “natural curiosity” and may pose a danger to the child’s health and safety. The attractive nuisance doctrine was first introduced into United States’ civil law in an 1873 case where a six year old child was killed while playing on a railroad turntable. The railroad argued, and won, on the grounds that the child was a trespasser and that the railroad was therefore not liable for damages. On appeal, the court found for the plaintiff on the grounds that a child could not be expected to understand that he was trespassing or to comprehend the danger to which he had exposed himself.

In order or a property owner to be held liable under the attractive nuisance doctrine, courts have generally held that four conditions must exist. These conditions are:

  1. A potentially dangerous condition must exist on a landowner’s property.
  2. The landowner must have either created or maintained the potential hazard.
  3. The landowner should have known the condition would attract children.
  4. The landowner should have known the condition could harm children.

Does the attractive nuisance doctrine mean that the property owner is automatically liable in every instance that a child suffers an injury?

No. The courts have consistently held that so long as the property owner has made every reasonable effort to protect even the deliberate trespasser, the property owner has complied with both the letter and the spirit of the law and should not be penalized for the failure to foresee every possible situation and to implement every possible safeguard.

The law requires that a property owner provide reasonable safeguards and not safeguards against every possible scenario. If a property owner can demonstrate that he or she has taken the same precautions that other property owners have taken, and that those precautions have been shown to be effective, the property owner has exercised due caution and will probably find a sympathetic jury.