Personal injury as a specific topic of the law is quite broad. So many topics can fit under that umbrella: Medical malpractice, auto accidents, slip and falls, dog bites, product liability and the list goes on and on. One specific topic that could also fall under personal injury is particular to minors and called attractive nuisance. Attractive nuisance is when a property owner is liable for injuries a minor child sustained while on the property of the defendant property owner.
Normally a property owner is not liable for the injuries sustained to a trespasser, as distinct from an invitee or licensee, if the risk is patently obvious. If the property owner is aware of the presence of the trespasser, he must warn the trespasser of any dangerous conduction that is latent or not otherwise obvious. There is no duty to warn, however, for naturally occurring dangers found on the property or if the property owner is unaware of the presence of the trespasser.
What is an Attractive Nuisance?
If the property owner has an item or a property feature that may attract a youth who, because of his/her age is unaware of, or unable to appreciate, the dangers that a particular item or property feature posses, the property owner has a heightened duty to the trespassing youth. Therefore, an attractive nuisance is any condition on a property that would attract children, who do not understand its dangers. The property owner may be liable for any harm that may come to the child as a result of being enticed to the attractive nuisance.
For a plaintiff minor to establish liability under the attractive nuisance theory a plaintiff must prove:
- The condition itself was dangerous in and of itself; and
- It must be alluring or enticing to young children; and
- The children must have been incapable, by reason of youth to understand the dangers involved; and
- The condition must be left unguarded and exposed at a place frequented by children; and
- It must have been reasonably practical to prevent access to the attractive nuisance.
There is no cut-off age, instead each case is analyzed on a case by case basis. Common examples include a swimming pool accident or a deserted construction site. It is important to note that there are many reported cases where a child was hurt or even died as a result of trespassing onto dangerous conditions but the Court ruled that even children could determine the risk involved. As one Court noted, there are places where the dangers and risk are obvious and a matter of common sense, even for a child. Places such as subway tunnels, where the child passed over tracks via a catwalk and also passed in front of oncoming trains and then walking on top of the protective housing of the third rail. In other words, reckless behavior will not pass the attractive nuisance test.
If your child, grandchild or other loved one was hurt or unfortunately even died as a result of being enticed to the property of a third party, you need an experienced law firm with the wherewithal to insure that you and your child are properly represented. The law firm of Napoli Shkolnik, PLLC has the background and ability to help you in these matters. You can fill out our online contact information so someone can contact you or you can reach us at 212-397-1000.