Protecting Against Attractive Nuisances To Cover Against Liability

If you ever happened to drive past an abandoned property where there were rusted play equipment then you might have unwittingly come across what is known as an “attractive nuisance.

Owners of land owe a duty to those who happen to come on their property. This level of duty that you owe to the person on your property will usually depend on the guest and what their status is. That level of duty will also have a significant impact on the potential liability that may befall the owner of the property. Let us take a look at how the status of guests are determined.

Invitee

An invitee is a person who was invited to enter or to remain on the property for a purpose which was either directly or indirectly connected with business dealing of the owner of the land. This will apply to most businesses. These categories of guests are owed the highest level of duty in order to prevent harm to the person invited under all circumstances that fall under a standard of care that will be considered reasonable.

Licensee

A licensee is a person who has the privilege required to enter or to remain on land only by their virtue of having the landowner’s consent. This will include all social guests and also others who are invited onto the land. These are the people who do not technically meet the requirements needed to be deemed an invitee. These people are owed far less duty in order to prevent harm but this also only applies if the landowner knows or has the reason needed to know the condition. They should also have the realization that it also involves an unreasonable risk of harm to these people and they should expect that they will not discover or realize the apparent danger. The landowner also has to fail to provide reasonable care in order to make the conditions safe or they need to warn the licensees of the condition and the associated risks.

Trespasser

These people are owed the lowest duty. The common rule is that a property owner owes absolutely no duty to a person who happens to be trespassing. They just have to make sure that they are not wilfully causing harm to them, that’s all. However, in certain property-related legal situations such as when tenants break a lease or vacate a property early. The owner’s responsibilities can differ from those owed to trespassers.

Children

When it is the case of a child, the status of the guest and also the resulting duty becomes a whole lot more complicated and nuanced.

Our laws do recognize that younger children do need much greater protection. In fact, the whole notion of the “attractive nuisance” doctrine was made because of our concern for the safety of children who trespass on land in order to take advantage of a condition that is attractive but also dangerous. At the core of the concept, attractive nuisances are simply conditions upon a property that brings in the attention of children and is one that can potentially expose them to harm.

The legal system has ruled that five elements need to be present in order for it to be categorized under the attractive nuisance doctrine. The first condition is that there was a condition that existed which posed danger and would likely cause injury to those who come into contact with it. The second condition is that the thing has to be exciting and attractive to young children. The third condition is that the child could not understand the danger of the whole situation. The fourth condition is that the nuisance was left ungarder or was exposed. The fifth condition is that the nuisance could be potentially made safer within reasonable means.

Common Scenarios

So how common is the whole situation of attractive nuisances. In all likelihood you have probably seen many examples of people and businesses taking measures to protect themselves against these scenarios.

Think of a building that is being renovated in a busy part of the city. These types of construction projects are common attractive nuisances that need to be safeguarded against children. The screening around the site is a common form of protection against attractive nuisances. Also, don’t forget to enlist expert witnesses.

Also, picture a swimming pool that has its very own fence surrounding it with the help of a secured gate. If this was a natural body of water then it would have been exempt from being labelled as an attractive nuisance but since it is a man-made thing, it also falls under the label. Cars that are abandoned or trucks that are abandoned or equipment for farms can all be labelled as being attractive nuisances.