What Is An Attractive Nuisance?

Key Takeaways

• California no longer recognizes the child-focused “attractive nuisance” doctrine as an applicable legal defense in premises liability cases.
• Instead of reducing liability, removing this doctrine broadened property owners’ responsibilities, requiring them to exercise a general duty of care to all persons on their land.
• Property owners must regularly inspect their premises, reasonably repair or remove hazardous conditions, and adequately warn visitors of dangers that are not readily apparent.
• Liability is now determined by a standard of reasonableness, with courts considering factors like why the injured person was on the property, the presence of fences or deterrents, and the cost of repairing the hazard.
• An experienced personal injury attorney can evaluate the facts of your case, prove the property owner failed to act reasonably, and help you recover the damages you deserve.

Under California law, an “attractive nuisance” is no longer an applicable legal defense in premises liability injury cases. California no longer uses this child-focused trespassing concept.

In locations where it is recognized, the doctrine refers to a dangerous condition or object on a property that may be particularly attractive to children and thus pose a risk to them. In tort law, the doctrine imposes a duty on property owners to treat trespassing children as if they were invitees, in other words, with the highest standard of care. Accordingly, owners must exercise reasonable care to eliminate potential dangers or provide adequate warning of such damages.

The idea behind the doctrine is that some unusually attractive objects may be especially appealing to young children. The law views this appeal as an implied invitation to come onto the property, making them invitees rather than trespassers. Because the consequences can be so onerous on the property owner, the courts generally will not include everyday objects like walls or fences in the family of attractive nuisances.

While this is no longer a defense in California, there are many other defenses property owners might raise, and you want to have the right injury lawyer handling your case.

When Liability Will Accrue under the Doctrine

The Restatement (Second) of Torts says that the property owner will be liable for physical harm to a child trespasser caused by an artificial condition on the land when:

• The location of the condition or object  is one where the property owner knows or has reason to know that children are likely to trespass
• The condition or object is one the possessor knows or has reason to know involves an unreasonable risk of death or serious bodily harm to such children
• The children do not understand the risk involved in meddling with or coming within the dangerous area
• The benefits to the property owner of maintaining the condition or object and the burden of eliminating the danger are slight compared to the risk to children
• The property owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

What Are Common Attractive Nuisances?

Generally, there must be something beyond an object or location to constitute an attractive nuisance. At its most basic, an attractive nuisance is something purposely and artificially constructed or placed on the property.

Thus, in some jurisdictions, a swimming pool is no longer automatically deemed an attractive nuisance, even given its high rate of injury and death. A junkyard, on the other hand, because the danger is less clear and the attraction very high. Construction projects are also highly attractive to children with many potential injuries. Dangerous animals also present a risk to small children. Liability may be pretty clear if a dog has been allowed to remain without a collar or muzzle. Old appliances such as refrigerators can be highly attractive to children.

How Is the Doctrine Handled in California?

As mentioned previously, California does not follow the attractive nuisance doctrine. However, even without the doctrine, property owners in California now have a reasonable duty to reasonably maintain their property safely. The court decision imposing the change actually made property owners more liable, not less.

In California, the law has broadened this responsibility to require that property owners may owe a general duty of care to all persons on their land and that the burden of proof generally rests on the property owner to demonstrate any exceptions. Courts will consider all relevant factors when making a ruling. In other words, by getting rid of attractive nuisance, the state actually increased the responsibility of property owners rather than reduced it.

The law no longer rests so heavily on the visitor’s right to be present, although this is one factor among several. Judges have a great deal of discretion in considering all relevant factors.

Under current law, the court now also considers current hazards on the property and what measures the property owner took — or reasonably can have taken — to address them. They may also consider whether they put up a fence or other deterrents to any hazards and whether they adequately warned visitors of potential dangers.

Under these laws, property owners now must regularly inspect their property and conditions and generally have the responsibility to know the condition of their property. As such, they can be more liable for resulting injuries.

California now has no special instructions for homeowners relating to trespassing children. Owners must maintain luring objects and conditions in a reasonably safe condition and must warn others of dangers that are not readily apparent. If a property owner fails in these duties, they can be liable to any person, child or adult, injured on a property due to a dangerous or unsafe condition.

Because of the broader application of this potential liability, property owners are more likely to inspect their property for dangerous conditions regularly. If any are found, the owner can remove or warn of the danger.

What Must an Injured Party Prove?

If someone does suffer an injury and files suit against the property owner, the case ultimately becomes one of reasonableness. If the court finds that the owner acted reasonably concerning the dangerous condition or object, there will be no liability. The judge makes this determination by examining all the facts in the case, including:

• Why was the injured person on the property?
• Was the property fenced?
• Were there any prior similar injuries?
• If a pool is at issue, was it in or above ground?
• What inspections has the owner done?
• What is the cost of repairing the unsafe condition?
• How obvious was the unsafe condition?

Contact a Discovery Bay Personal Injury Lawyers Today

If you or a loved one suffered an injury due to a dangerous condition or object on another’s property in North California, you should consult an experienced personal injury lawyer. A personal injury lawyer will be familiar with the handling of attractive nuisances in California and can assist you in recovering the damages you deserve. Contact us or call (415) 433-0444 today to schedule a no-cost case review. We help clients throughout the Bay Area from locations in Santa Rosa, Vacaville, and Discovery Bay.

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