Attractive Nuisances & Children: Like a Moth to the Flame
"ATTRACTIVE NUISANCES & CHILDREN: LIKE A MOTH TO THE FLAME"
It’s a fact of life: children sometimes get hurt. The curiosity of a child’s mind knows no bounds, and while, as parents, we have come to expect simple “boo-boos” like a scrapped knee for example, sometimes curiosity can lead children into far more precarious situations. Remember, it did kill the cat after all.
Obviously then, there are many situations where, from the worldview of an adult, while we see dangers that should best be avoided, a child may only see adventure – a new mystery waiting to be explored.
While, undoubtedly, it is important that parents foster their children’s inquisitive minds, a parent’s first priority should surely be to protect their children from serious bodily injury, or worse.
Fortunately, the law acknowledges the tendency of children to view all the world as a playground, and imposes a special duty to protect them from hazards which they may be inclined to explore. Like many states, New Jersey has adopted this principle of tort law, called the attractive nuisance doctrine.
Put simply, an attractive nuisance is any man-made construct present upon land, which may lure children, and which can cause them bodily injury should they play on, in, or around it. Swimming pools, playground equipment, and other artificial landscaping features can make your yard a magnet for every kid in the neighborhood. But the very things that might make your yard so attractive may be the very same things that also make it dangerous.
A heightened duty is imposed upon property owners who have items that will both attract children and present an element of harm. Because these items essentially induce a child into a hazardous area, a property owner is expected to take certain precautions to prevent a tragedy.
Elements:
If the property owner knows, or reasonably should know, that children are likely to trespass upon his or her property;
In response to an artificial condition present upon the land;
Which the property owner knows, or reasonably should know poses an unreasonable risk of death or serious bodily injury;
Such that a child, because of their youth, do not discover the condition or realize the risk involved; and
Said property owner fails to take reasonable precautions to safeguard against the risk of injury.
Common Attract Nuisances:
Water Features
Studies suggest that an adult can drown from as little as six tablespoons of water. This number is even less for a child. Water features on property – including fountains, pools, and wells – can pose an enormous risk to children who may want to splash around inside.
A swimming pool is perhaps the most common example of an attractive nuisance, and as the Summer weather is upon us, pool owners – especially owners of inground pools – should be particularly mindful of the hazard posed. As a pool owner, you could be liable for accidents even if children sneak into your pool without your consent. Whether the pool is in-ground, above ground, or even a kiddie pool, you can reduce your risk by surrounding your pool area with a fence, installing a locking gate (preferably one with an audible alarm), and covering the pool with a safety cover when not in use.
Under New Jersey’s swimming pool safety act, called “William’s Law,” any pool must be fenced or walled in with a structure at least 5 feet high and without any openings wide enough for a 4-inch object to pass through it. If a pool owner fails to property enclose the water and a child is injured as a result of it, the family may be able to sue under the attractive nuisance doctrine.
Trampolines & Playground Equipment Most home playground injuries involve swings, according to the Centers for Disease Control (CDC). To reduce the chance of accidents, therefore, the National Association of Home Inspectors recommends spacing swings at least 24 inches apart and at least 30 inches from the support frame. Swing sets – especially wooden ones – should be checked regularly for wear & tear, warping, or rot. Because most injuries from swings also involve falls, installing a shock-absorbing surface for your playground can help mitigate the likelihood of injury; sand, wood chips, or gravel, for example. Trampolines can also pose a significant safety hazard to young children who may not know how to utilize one safely. If you are planning on purchasing a trampoline, look for a model that has a zippered entrance which can be locked. Additionally, consider installing a locked and alarmed fence around your yard or around the playground to make the feature inaccessible to uninvited users.
Home Construction Projects
Construction projects and the tools and equipment which may be present can be kid magnets. Rebuilding a deck, repaving a driveway, pouring concrete, building additions, and even repairing a roof can all present potentially dangerous conditions which a child may be drawn to. To some children, a ladder must be climbed or a hole must be jumped in. The law doesn’t expect homeowners to complete their projects overnight, but when stepping away, turn off and put away power tools, remove heavy equipment if possible, and consider putting up hazard signs, safety cones, or preferably a barrier of caution tape, making the potential danger clearly evident.
Be Alert to Hazards
At the end of the day, it is understood that sometimes it is impossible to prevent all eventualities, and that, unfortunately, accidents do happen. At the same time, it is important to be vigilant and stay cognizant to hazardous or potentially hazardous conditions on our property which may lure children. This is especially true if you live in a neighborhood with families who have children, or near an area where children may be present, such as near a park or a school.
Call Drinkwater & Goldstein, LLP
If you believe that your child was the victim of an attractive nuisance, or was otherwise injured on another’s proper, call the law office of Drinkwater & Goldstein, LLP today for a free over-the-phone consultation. Our caring, compassionate, and knowable staff will be happy to go over the facts of your potential case so that our experienced personal injury attorneys can see if you have a viable cause of action. There is absolutely no cost to you unless we secure a financial recovery on your behalf.
Call us today at (856) 753-5131!
