attractive nuisance

Primary tabs

Attractive nuisance is a dangerous condition on a landowner's property that may particularly attract children onto the land and pose a risk to their safety. The attractive-nuisance doctrine imposes a duty on property owners to treat trespassing children the same as an invitee.  As a result, the landowner must exercise reasonable care to eliminate potential dangers or provide adequate warning. As the Supreme Court of Texas has stated, the rationale behind the doctrine is that a device of unusually attractive nature may be "especially alluring to children of tender years" thereby impliedly inviting children to come upon the premise, and by such invitation, the children should be considered invitees instead of trespassers. Furthermore, because the doctrine may impose a substantial burden on property owners, it is generally narrowly construed to not include common or ordinary objects like walls, fences, or gates. 

According to the Restatement (Second) of Torts, a possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:

  • 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
  • The condition is one of which the possessor knows or has reason to know will involve an unreasonable risk of death or serious bodily harm to such children; and
  • The children do not discover or realize the risk involved in intermeddling or coming within the dangerous area; and
  • The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to the children involved, and;
  • The possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. 

(See e.g., Kessler v. Mortenson, 16 P.3d 1225 (Utah 2000))

Whether particular features or property are deemed an attractive nuisance is based on circumstances of the case and the factors mentioned above. For example, Indiana has held that the doctrine does not apply to swimming pools, unless they include some hidden or latent danger, because children generally understand the risks of drowning. On the other hand, it has been held that a junkyard may constitute an attractive nuisance if not properly maintained, because it may entice young children to play among the debris and expose them to risk of injury. 

While the attractive-nuisance doctrine is generally asserted to injured children who are too young to appreciate potential risks, adults may invoke the doctrine when seeking damages for their own injuries suffered in an attempt to rescue a child from a danger created by the defendant's attractive nuisance. 

[Last updated in December of 2021 by the Wex Definitions Team]