The Attractive Nuisance Doctrine

Under Common Law, it was generally held that a landowner owed no duty of care to a
trespasser other than refraining from creating a dangerous condition or instrumentality
designed to inflict injury to the trespasser. Over time, however, an exception to this
general rule evolved for the protection of young children who have somehow been
“enticed” onto the property by a “dangerous instrumentality” that catches the imagination
of recreation. An early Washington Street decision, for example imposed liability on a
railway company following the death of a child from playing on an unsecured turntable. In
finding for the plaintiff, the court noted that the defendant knew children were attracted to
the machine, were in the habit of playing on it, and that the method of securing it in the
past had proved ineffective.

The Doctrine Today

A more recent Washington case (Schock v Ringling Brothers, 1940) enumerated the five
elements that must be present for the “attractive nuisance” doctrine to apply.

They are as follows:

1. The instrumentality or condition must be dangerous in itself, that is, it must be an
agency that is likely to, or probably will, result in injury to those attracted by, and
coming in contact with, it.

2. It must be attractive and alluring, or enticing, to young children.

3. The children must have been incapable, by reason of their youth, of comprehending
the danger involved.

4. The instrumentality or condition must have been left unguarded and exposed at a
place where children of tender years are accustomed to resort, or where it is
reasonably to be expected that they will resort, for play or amusement, or for the
gratification of youthful curiosity.

5. It must have been reasonably practicable and feasible either to prevent access to the
instrumentality or condition, or else to render it innocuous, without obstructing any
reasonable purpose for which it was intended.

Other courts in other states have since modified these requirements slightly. The
Massachusetts Child Trespasser Statute of 1977, for example, further stipulates that the
“utility of the landowner of maintaining the artificial condition and burden of eliminating
the danger are slight in comparison to the risk of harm to children”. Another commentator
in Michigan adds further the need to inquire as to “whether the landowner took reasonable
care to eliminate the hazard or to protect the children from harm.

What Qualifies as an Attractive Nuisance?

Virtually all states hold that the condition or instrumentality must be “artificial”, or
something not normally present on the premises. Therefore, in most cases, a naturally
occurring pond would not qualify, although there are some particular conditions that
would serve to render a natural body of water as an “attractive nuisance”. These conditions
are described briefly in a Fact Sheet from the State of Ohio
(http://ohioline.osu.edu/alsfact/1006.html).

By far the most common example of such a condition, however, is an unfenced swimming
pool. The 2001 case in Ohio that finally adopted this doctrine (Bennett v Stanley) involved
an abandoned swimming pool that had filled with about six feet of rainwater and had
become “pond-like. One of the Bennett children went to the pool to look for frogs, and
subsequently drowned, as did his mother in an apparent rescue attempt.

In addition to swimming pools, the state of Ohio regards the following units of farm
property as qualifying as “attractive nuisances”:

• Chemicals and chemical storage areas
• Grain bins
• Manure lagoons
• Water wells and cisterns
• Heavy equipment
• Machinery and tools
• Gas and water tanks

While the great majority of such hazards tend to be rural in nature, the Consumer Product
Safety Commission has mounted a campaign to target “unstable trash collection bins” as
attractive nuisances in the inner cities. The agency notes that there have been 47 injuries
and deaths from crushed skulls and chest since 1971.
Other Forms of Attractive Nuisance

Other commonly described forms of attractive nuisance include the following:

• A fountain with goldfish
• An idling lawnmower
• Power tools
• Construction equipment, materials, and debris
• Liquor cabinets
• Tunnels
• Dumpsters
• Appliances, particularly refrigerators
• Automobiles
• Falling hazards such as sinkholes, trenches, and abandoned mines