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Why Your "Attractive Nuisance" Worries Your Insurer


Cartoon of children playing in a pool and on a treehouse

Attractive nuisances on your property are often insurance claims waiting to happen, putting you in legal jeopardy, and your home insurance provider on edge.


An attractive nuisance is "something so compelling that it entices people - usually children - to come onto your property and potentially harm themselves" according to Emmet Pierce with NetQuote.


Swimming pools, trampolines, and even holiday light displays can be magnets for nuisance claims. Adults who trespass on your property usually have no legal options if they are hurt, particularly if you have warning signs posted securely on your property. Children, however, are another story. You are more likely to be held negligible if you haven't taken the right precautions. Courts frequently punish property owners with larger awards when it is clear they have done little to prevent potential accidents.


Trampolines and swimming pools aren't the only attractive nuisances you may have on your property. Others include:


  • Fire pits or open pits of any kind

  • Discarded appliances like refrigerators or freezers

  • Power tools

  • Construction equipment

  • Treehouses

  • Man-made ponds

  • Unsecured wells

  • Aggressive dogs

  • Abandoned or unlocked cars

  • Fountains

  • Jungle gyms or other things to climb on

  • Skateboard ramps


The First Attractive Nuisance Claim


Railroads were part of the reason attractive nuisance laws and insurance concerns were created. The idea that a landowner could be held liable for injury to a trespassing child was first referred to as the "turntable doctrine," named after the large railroad turntables that played a part in the first case.


In 1873, a 6-year-old named Henry Stout, living in a small hamlet in Nebraska, was playing with two friends on a railroad turntable owned by Sioux City and Pacific Railroad Company when his foot was crushed between the turntable and the end of an iron rail on the track.


The court ruling determined that the turntable was not securely latched, and there was no fencing around the railroad yard to prevent children from gaining access. The court ruled that the company should have recognized the turntable as a dangerous machine and that children would be likely "attracted" to it as a place to climb and play. In another railroad turntable case, the court first used the term, "attractive nuisance" and deemed a railroad turntable "so attractive to children that its presence was equivalent to an express invitation onto the land."


Virginia's Attractive Nuisance Doctrine


Since 1887, twelve attractive nuisance cases have been heard and decided by the Supreme Court of Appeals of Virginia. Unlike other states, Virginia's Court of Appeals has not usually followed the general doctrine that concludes children are afforded a greater degree of protection than what is given to an adult.


The doctrine states that landowners must know the following in order to be liable:

  • The landowner knows children are likely to trespass to access the condition

  • the condition poses an unreasonable risk of death or serious bodily harm to children

  • Children are not able to reason the risk

  • The securing of the condition is slight compared to the risk

  • The owner is liable if he fails to limit or eliminate the danger to children


In 1906, for example, Virginia's first turntable case held that the Potomac Railroad was not liable despite the fact children constantly played on the turntable. A second case in 1915 involved a three-year-old playing on a turn table who grabbed a dangling live electric wire and touched one of the rails with it, causing a spark that set her dress on fire. The court held that because the injury was unforeseeable, the railroad was not negligent. Because the child was trespassing as well, the general rule typically was applied to adults applied to the child as well.


It wasn't until 1925 that the courts recognized that the rules that applied to adults could not be applied to children. When an eleven-year-old was injured after he stuck a piece of an old saw through a fence surrounding a high-voltage transformer and touched the transformer, the court ruled in favor of the child stating the company knew of the danger and did not take adequate steps to protect an unaware child.


In the nine remaining cases that made it to the Supreme Court of Appeals, which involved explosives, a Pepsi bottle with the label still intact but containing muriatic acid, and a quarry pit, the cases were split between favoring the landowners and the children. The more recent cases, however, have leaned in favor of the children.


Homeowners Must be Diligent


Court rulings have shown that even if a yard is fenced and signs are posted, a homeowner may still be liable for damages if a child is injured.


In 1998, for example, a pool owner was held liable for the drowning of a child because while fenced, the pool gate was not secured and allowed easy access.


Another case found that a homeowner was liable when a child playing on a playground set in the homeowner's backyard got her finger caught between the pole holding a teeter-totter at the hinge.


The takeaway is that despite best efforts to secure a property and eliminate risk, the best course of action is not to have the "attractive nuisance" at all. Children are curious, and the courts tend to favor the child. So if your children have outgrown a trampoline or a treehouse, it is smarter to take them out than run the risk of a child being hurt.


Attractive nuisances are some of the things Mutual Assurance looks for in our home inspection. We will not cover homes with unprotected pools, trampolines, and treehouses (among other things), because we know the risks these bring with them. We want to keep you safe and look out for all of our members by reducing risk.



 


 

Sources: NetQuote, CaseText, HowStuffWorks, University of Richmond Law Review,


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