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What is the attractive nuisance doctrine?

| Dec 14, 2018 | Premises Liability |

It may be commonly understood that if one enters another’s property in Sarasota without permission, they assume the risks of whatever that property’s features may pose. This standard of liability is based off the assumption that the trespassing individual should know and recognize the risks those features pose. Yet what if the trespasser is your young child? Are they expected to know (as an adult does) that something that seems attractive to them might also be dangerous? 

This is the argument that the legal principle known as “the attractive nuisance doctrine” is meant to address. Young children are recognized as not having the understanding to discern that a particular feature or attraction might be dangerous. Because of this, the responsibility is placed on the owners of the properties on which such attractions or features are found to protect kids from them (or at least limit their access to them). Furthermore, those same property owners could be held liable if they failed to do so. 

Worksites, abandoned buildings, caves and tunnels have all been recognized as being common attractive nuisances. So too have swimming pools. Say your neighbor has a pool which is easily accessible. If your child were to somehow get access to the pool and drown or suffer some other injury, then your neighbor could be held legally responsible. This holds true even if your child was on their property without their permission (as Section 768.075 of Florida’s state statutes recognizes that the state’s limitations on property owner liability do not apply in attractive nuisance cases). However, if your neighbor had placed fence around the pool (or restricted easy access with a pool covering), then they may argue that they did all that could have reasonably been to prevent children from accessing it. 

 

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Dana Watts is a board certified civil trial lawyer by the Florida Bar Board of Legal Specialization with more than 30 years of litigation experience. He also received an AV* peer review rating through Martindale-Hubbell.

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