The attractive nuisance doctrine is a special rule in the area of premises liability that calls for landowners to be held to a higher standard in the duty of care owed to children who trespass on their property. [1] In many instances, real property may contain attractive nuisances such as swimming pools, lakes, swimming holes, abandoned wells, stepped (accessible by the average person) electrical or telephone poles and abandoned buildings amongst other nuisances. Because children may not yet have the cognitive development required to logically assess the reasonableness of assuming the risks when deciding to engage in certain activities, the attractive nuisance doctrine “affords greater protection” to children while trespassing on real property. [2]
Is the attractive nuisance doctrine fair? It would seem that using a subjective standard, parents would more likely than not deem the doctrine fair since it serves to protect their children. Yet, parents and children will differ. While one parent may be responsible and attentive enough to continually reinforce the importance of staying away from the neighbor’s unattended swimming pool (no matter how much the child wants to jump in), other parents may not understand that a consistent and sustained effort to counter the propensity for young children to simply act on impulse is required because those unchecked impulses can lead to fatalities. Because of this fact, it seems reasonable to assume that even parents (those who consider themselves to be more responsible and have well instructed, well-disciplined children), might sense that other parents are simply not doing enough to protect their own children. They might feel that before imposing a requirement on them, possibly other parents should be held to a higher standard of doing that which they (the responsible) have already done. Thus, even some parents might deem at least some of the requirements established under the doctrine to be unfair.
For instance, Florida has the Residential Swimming Pool Safety Act. [3] This act requires among other things, that homeowners who have swimming pools on the property must install and maintain a State approved swimming pool barrier. [4] These barriers are usually metal screen enclosures which enclose the entire area of the pool and can cost upwards of $10,000.00. [5] Because of the cost to comply with this particular requirement, we can see how some might feel it is somewhat unfair for the property owner to bear the cost to protect children who trespass.
However, in contrast, one can argue that we must strongly consider public policy doctrine that propagates the idea that is good and proper to protect children. We must also recognize that even the most caring and responsible parent cannot give assurances that his child will not at some point, ignore what he has been taught about avoiding attractive nuisances and give in to the impulse to indulge. Because of this, it seems logical for society to step in to fill the void (with the attractive nuisance doctrine), as it does in so many other instances to provide more of a means to support public policy ideology. Lastly, we must recognize that there are simply too many places and types of attractive nuisances for the individual parent to be both aware of and warn the child to stay away from. Because of this, it does seem rational to place the onus on the property owner, who has or should have intimate knowledge of the inherent dangers located on his property to take measures to protect an unknowing and foreseeable child trespasser from harming himself.
I remember one attractive nuisance during my childhood which was a ladder to the fire escape of an abandoned building which was left in an easily accessible position to the general public. What made this such an attractive nuisance was that it was easily accessible and while it was accessible to the general public, it was located in a secluded area that most adults did not venture into. But, for us it was where we played daily. Fortunately, none of us ever got hurt as we climbed the ladder to play in the abandoned building. However, I’m sure there are so many children that were not as fortunate.
Other types of attractive nuisances are refrigerators, freezers, washing machines, clothes dryers and other items where a child might enter and become trapped in. A possible defense cited in the text was the open and obvious doctrine. The rationale of the doctrine is simply that the “open and obvious nature of the hazard in itself serves as a warning to those that there is an inherent danger.” [6]
[1] Cathy J. Okrent & William R. Buckley, Torts and personal injury law 97 (5th ed. 2015).
[2] Id.
[3] § 515, Fla. Stat. (2016).
[4] Id.
[5] CostOwl.com, How Much Does a Pool Enclosure Cost? Free Swimming Pool Enclosure Prices and Estimates, http://www.costowl.com/home-improvement/sunroom-pool-enclosures.html (last visited Apr 11, 2017).
[6] Okrent, at 99.