Saturday, December 7, 2013

The Top Five: The Attractive Nuisance Doctrine

In the law of Negligence there are no duties owed by a landowner to undiscovered trespassers, and only slight duties owed to discovered trespassers. But the law changes a bit when those trespassers are children, and the Attractive Nuisance Doctrine sets forth those changes. Here are five things to know about the doctrine:

(1): The doctrine only applies to require that ordinary care is used by a landowner to avoid reasonably foreseeable risk to children (even trespassers) caused by artificial (rather than natural) conditions on the land.

(2): For the landowner to be liable for injuries to a child, there must be knowledge by the landowner regarding the dangerous condition on the land. The standard is objective, so that the landowner may be liable if he knew or should have known of the dangerous condition.

(3): Similarly, there must be knowledge by the landowner that children frequent the vicinity. And, as with (2) above, the knowledge requirement here is objective, so that the proper question to ask is whether the landowner knew or should have known that children frequent the vicinity.

(4): For liability, the condition on the land must be one that is likely to cause injury. This element is best analyzed by determining whether the condition on the property was one with which a child was unlikely to appreciate the risk of injury.

(5): Perhaps the most important element of the analysis is to balance the expense of remedying the situation with the magnitude of risk caused by not remedying it. Only if the expense of remedying the situation is slight compared to the magnitude of risk will the doctrine apply.




No comments:

Post a Comment