Attractive nuisance is a defense to trespass by children used in tort law. The doctrine of attractive nuisance is premised on the belief that one who maintains a dangerous condition which is likely to attract children on their property is under a duty to post a warning or take affirmative action to protect children from the dangers of that attraction. It imposes a duty to be sensitive to potentially danderous conditions which are likely to attract children. The attractive nuisance doctrine typically doesn't apply to adults. However, if a child is in danger due to an attractive nuisance and an adult attempts to rescue the child, the attractive nuisance doctrine may hold the landowner responsible for the rescuer's injuries in addition to the child's injuries.
It is an exception to the general rule that no particular care required of property owners to safeguard trespassers from harm. An attractive nuisance may be unenclosed pools, machinery or stacks of building materials -- that present both an irresistible lure and hidden danger to young children. Most natural conditions, such as a lake or a naturally steep bank, are not considered attractive nuisances. To be liable for injury, an owner must create or maintain the harmful object.
A person's ability to recover for an injury on another's property, specifically in the case where the injury occurred in a pool, lake, pond, etc., depends on the category in which a court places the injured person. If a court categorizes a person as a trespasser, the law generally protects a property owner from liability in all cases where the trespasser sustains an injury, except when the owner acts "wantonly or willfully." An exception to this rule, however, exists in the case of young children. For guests, or licensees, of a property owner, establishing liability for injury or death resulting from the use of a pool rests on the property owner's failure to warn guests of dangers that the guests would otherwise not discover themselves. Some states' courts have found that the danger of drowning or injuring oneself diving or swimming in a pool is "open and obvious."
In evaluating whether a landowner is liable for an attractive nuisance a court may weigh:
- whether the landowner knew or had reason to know that children could trespass near the hazard;
- the type of hazard on the property and whether the hazard poses an unreasonable risk of death or serious bodily harm to children;
- whether the children, due to their youth, could appreciate the risk involved;
- the importance to the landowner of maintaining the hazardous condition;
- how the burden of eliminating the hazard compares to the risk of harm involved; and
- whether the landowner took reasonable precautions or exercised reasonable care to eliminate the hazard or to protect the children from harm.