What Is an Attractive Nuisance?

Being a homeowner allows you to do almost anything with your property that you desire (within reason, of course). If you want to have a back patio, swing set, a pet dog, a pool, or a trampoline – that is all within your right. However, as a home and property owner, you also have certain responsibilities to visitors and guests and, believe it or not, certain trespassers. North Dakota’s “attractive nuisance” legal concept explains why.

Per North Dakota State University:

Attractive nuisance is the legal concept that a person controlling/possessing land may be liable for injuries suffered by a trespassing child…Note that the concept applies only to artificial conditions on the property; not naturally occurring conditions.

The rationale is that a landowner has the best opportunity to protect the child by either removing the dangerous condition or by erecting a fence to keep the child from the danger. The rationale further assumes that children will always be curious and society does not want to discourage that natural desire to explore, and that the lowest cost way to reduce the risk is for the landowner to do something.

An attractive nuisance nearly always applies to children, especially young children, specifically.

What are some examples of attractive nuisances?

First, some things that are not attractive nuisances – any naturally-occurring features on the property, like trees, rocks, lakes, or rivers. Attractive nuisances are things purposely and artificially constructed and placed on the property. Common attractive nuisances that tend to cause severe or fatal injury, especially in children, include:

• Swimming pools. The CDC reports children between 1 and 4 years old have the highest drowning rates, and most happen in swimming pools. Further, many drownings happen during unsupervised access to pools.
• Construction projects. Children love tools and building, but if these items are left out in the open, serious injuries can occur. Falls from ladders, wounds from nails and sharp objects, or power tools injuries are all potential hazards.
• Dangerous animals. If a pet is permitted to run loose, its owner is likely liable for any injuries caused when it attacks or bites. Children are naturally attracted to dogs and assume they are friendly. Dog owners owe the general public a duty of care to prevent their dogs from causing injuries.
• Discarded appliances. Current laws require owners to remove doors when discarding things like refrigerators and freezers. However, if an individual or municipality fails to do so and a child becomes trapped inside, he or she could suffer oxygen deprivation and/or fatal injuries.

Other examples include artificial ponds, treehouses, playground equipment, abandoned vehicles, or farm/industrial equipment.

What is a North Dakota property owner’s duty of care?

Property owners owe anyone visiting their property a certain duty of care. This duty is much higher for children, as set out in the attractive nuisance theory. Again, per North Dakota State University:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

(See Gessner v. City of Minot, 1998 ND 157, 583 N.W.2d 90 citing Mikkelson v. Risovi, 141 N.W.2d 150, 154 (N.D. 1966))

What this means is that a property owner can and should take reasonable precautions to protect children from injury. These can include:

• Installing a fence or barrier around the property or hazard
• Removing the hazardous and dangerous items
• Filling up dangerous holes and ditches
• Removing keys from vehicles and farm equipment
• Unplugging and removing power tools
• Removing doors from discarded appliances
• Keeping dogs leashed and/or fenced in according to municipal law

It is important to keep in mind that, for a child, a property owner’s “No Trespassing” sign is typically not enough to deny liability.

If your child suffered harm on another person’s property due to an unsecured attractive nuisance, the Minot premises liability attorneys at Larson Law can help. Premises liability claims work on the theory that a property owner has the responsibility to warn visitors about hazardous conditions on their property, or mitigate those hazards before anyone sustains an injury. The level of responsibility owed to children is even lower.

To find out more, and how we can assist you and your family with your claim, contact one of our attorneys today. We can help determine fault and liability, and help work to secure the financial compensation your child needs to recover from his or her injuries. To schedule a consultation, call 701-484-HURT or complete our contact form today. We maintain offices in Minot, Fargo, and Bismarck.