Typically, trespassers have few rights when intruding on someone else’s land. However, children are often considered an exception to this, especially when there is something on a property that may be attractive to children. This is known as the “attractive nuisance” doctrine, wherein a property owner is responsible for ensuring that structures attractive to children and potentially dangerous are adequately guarded. In modern times, this usually applies to structures such as pools, where an unsupervised child could easily fall in and drown.
In order for a land owner to be considered liable for an attractive nuisance, the following five criteria must be met:
- The nuisance must be in an area where children are likely to trespass. A pool in a residential neighborhood would likely qualify whereas the same pool in a rural, farm setting would likely not.
- The nuisance must present a risk to children. This definition can be rather broad, and can include a number of structures.
- Children must be unable to understand the risk the nuisance presents. Something that obviously presents a risk is less likely to be considered an attractive nuisance than something that appears more benign, like a pool.
- The burden to protect children from danger must be slight compared to the risk involved. The cost of placing a lock on a fence surrounding a pool, for example, is slight compared to the risk of death by drowning.
- The owner must not exhibit reasonable care to eliminate the danger. The owner cannot be expected to protect everyone from every problem. If a pool owner places a locked fence around his pool, and children hop the fence or cut through the lock, the owner has exhibited reasonable care. If, however, he routinely leaves his door open and unlocked, that would not be considered reasonable care.