An attractive nuisance that sounds like an oxymoron, right?
It’s actually exactly that, and insurers don’t like them. What are they, where are they, and why are they a nuisance if they’re so attractive?
Attractive nuisances are a bit like a fatal attraction, and they’re often in your own backyard. They’re unfortunately usually attractive to the most unassuming victims — children. You may think you’ve covered all areas when it comes to child-proofing a home, but there’s way more than electrical outlets to worry about. Young children may not realize they’re placing themselves in harm’s way in what seems innocent to children and sometimes even adults. Despite appearances, intent, or direct responsibility, when an accident happens that involves a child, courts take a different approach. That approach is known as the attractive nuisance doctrine, and insurers want to avoid having to pay out for accidents from them.
What Is the Attractive Nuisance Doctrine?
This law states that landowners can potentially be held responsible for a child injured on the landowner’s property due to an attractive nuisance. This is normally any kind of object that is potentially dangerous while simultaneously being inviting to children. For a landowner to be found responsible, the injury and accident must meet certain criteria.
- The landowner possesses knowledge that there is a chance children will trespass on the property.
- An object or condition on your land has the ability to cause harm or death to children.
- The child/children that were harmed are too young to understand the dangers involved.
- The cost to repair or maintain the attractive nuisance is small when compared to the risk it poses to young children.
- The landowner failed to take reasonable action to eliminate the attractive nuisance.
Case in Point: Attractive Nuisance Court Case Bennett v. Stanley
In this 2001 Ohio case, the Stanleys and Bennetts were next door neighbors. The Stanleys owned a swimming pool, which had been abandoned, and was half full of rainwater at the time. The Bennetts’ son crept through a hole in the fence and fell into the pool. The Stanleys knew children lived next door and were unsupervised, and such scenarios should serve as a huge warning to homeowners to take extra precautions if they have an attractive nuisance. However, there weren’t any warning signs posted on the Stanley property. While the Bennetts’ son was drowning, his mother jumped in to save him, but tragically, both drowned.
The Stanleys were sued for negligence. At first, the Bennetts were considered trespassers and the court continually ruled in favor of the Stanleys. That was until the case reached the Ohio Supreme Court. The court overturned previous rulings and ruled in favor of the Bennetts. The court determined that a different duty of care is owed to children, even when trespassing. This decision helped set the standards for attractive nuisance tort, the exact reason they’re now becoming such an issue when it comes to obtaining homeowners insurance with affordable premiums, or even at all. As a landowner, it’s important to know what kind of dangers are on your property so you can take appropriate action to eliminate them.
Most Common Attractive Nuisances
1. Railroads: All aboard! We know children are content by the simple process of watching toy trains go around and around, and perhaps that’s why railroads seem to pose no danger. Real railroads and children’s safety definitely aren’t a toy though. The allure of railroad turntables to children eventually led to the “turntable doctrine” which preceded attractive nuisance laws once the idea that a landowner is responsible for trespassing children was established.
2. Swimming Pools: Those seemingly serene pools in many backyards are the ultimate attractive nuisances, perhaps best illustrating what an attractive nuisance is. Everyone loves a swimming pool in the summer — everyone. Sometimes our dogs even love them, but versus being funny when they take a dive to cool off on hot days, it’s definitely not funny when people (especially children) don’t have established “boundaries” around pools they’re at. There’s also not anything funny about the unfortunate deaths and injuries arising from pools, nor the expenses you’ll face in liability if something were to happen in your backyard oasis. If you have a pool, insurers will require you to have the pool securely gated and locked at all times. If you don’t do that — either before you buy your policy or afterwards — you’re facing denial of insurance coverage, denied claims, cancelled policies, and likely large liability lawsuits you’re responsible for out of your own pocket. If it’s not in your pocket, it probably won’t be long before you lose your pool — and home — to pay for judgments when your assets are seized.
3. Farm Equipment: Farms vary in size, and although courts believe farmers should install safe fencing, courts have ruled that moving large farm equipment isn’t necessary and live animals are not an attractive nuisance.
4. Construction Sites: Most kids have a dump truck in the sandbox, and toy dump trucks and play tools are a favorite among children. Similarly to the toy train set, construction sites with such machines and tools are thrilling to children when they see the real thing. Having “experience” with such tools and machines can easily result in children being injured once they see the real thing, since for all they often know, it’s just the giant version of the toys in their toy boxes. Children aren’t the only ones who can get hurt at construction sites — adults can as well. However, it’s much easier for children to sustain injuries. Without the conscientious eye for looming danger and the fascination they may have at such sites, they can easily fall prey to the numerous perils of construction sites. Past cases of such have included falling through holes or sustaining injuries from falling material, but cases are considered on an individual basis. Builders claim the hazardous condition is natural to business operations, so it’s a frustrating battle for homeowners remodeling and construction companies to maintain coverage, have sufficient coverage, and also pay insurance premiums that aren’t through the roof.
5. Power Lines: The desire to climb is instilled in many of us at a young age so when children see a power line or tower, it may be instinctual to climb up despite cautionary warnings about coming down. From a young age, many of us have heard the lullaby illustrating just this, but children don’t really heed that as a warning and usually also ignore pictographic warning signs, and climb fences, towers, and other dangerous places with a spectacular view. Down came child, low premiums, lawsuits, and all.
6. Fountains & Ponds: This applies to artificial and man-made water structures. They’re intended to look like the real thing, which themselves aren’t actually considered attractive nuisances. However, children are especially prone to testing the waters and usually won’t know the difference between man-made and natural, which can lead to serious consequences. Since it’s doubtful any child knows about attractive nuisances and the difference between man-made lakes and natural ones, take every safety precaution possible and try spelling out “danger” as clearly as possible in a way children will hopefully understand or that will deter them from jumping right in.
7. Abandoned Cars: Forget “You might be a redneck if…” jokes. If you have any on your property, insurers don’t see a car collection — they basically see a salvage yard, regardless of whether you have two cars or 100. To avoid the risk of curious children, take safety measures including locking all doors, windows and trunks, and ideally posting warning signs.
8. Old Appliances: If you have an appliance made before 1958, consider junking it or storing it in a locked facility if it’s in mint condition. Remember Hansel and Gretel? They may have been in a stove, which would still be an issue even in abandoned, old stoves, but consider refrigerators for example. Although car trunks now have safety latches if one is locked inside, refrigerators haven’t adopted that measure and there’s no way for a child locked inside one to get out.
9. Holes: Make sure fences and signs are posted and that entry is impossible for young children. Things like drainage ditches and cisterns can resemble swimming pools, but there’s no hot fun in the summertime when children think it would be a good idea to take a swim in the ditch or worse, if they fall into a well. If that happened, you could very well be looking at a hefty lawsuit.
10. Playgrounds: Kids will be kids — but you can still get sued for it. Actual playground structures with swings, slides, and monkey bars certainly pose threats, but the real issue comes about over things like skateboard ramps and trampolines, which count as attractive nuisances too. Although it’s important for children to be active and to spend less time on the Internet and playing video games, providing such items for children to be active on can be just as dangerous as children eating three square fast food meals a day. Always be on guard and make sure users are old enough to stay safe. “Look how high I can go” can quickly turn into fatalities and serious injuries.
How Attractive Nuisances Attract High Homeowners Insurance Premiums
If you’re thinking about getting a pool or a trampoline, you’d be wise to reconsider it. Your homeowners insurance premiums will likely go up — a lot — and some companies may deny coverage completely. If you absolutely have to have your pool, consider raising your liability limits, and definitely invest in an umbrella insurance policy on top of that. This portion of your homeowners insurance policy can pay for court costs and any judgments against you, as well as the medical bills of an injured party, which can overflow from even the largest of pools.
If you have any attractive nuisances on your property, take all the precautions possible to ensure children understand safety guidelines, that you watch them vigilantly, and for the worst scenarios, that they’re discouraged from playing in, around, or on them. Once you’ve done that and secured the right amount of insurance, you should be able to comfortably host family gatherings again, and enjoy watching children playing Marco! Polo! in your pool and squealing with glee when they slide down playground slides.
Follow Desiree on Twitter @DesireeBaughman.