“Attractive nuisance” is a term of art used in legal circles and the insurance industry. It describes an object or condition in a home or on a property that attracts children and presents a significant risk to their wellbeing or safety.

Attractive nuisances are common. They include pools, koi ponds, fountains, play sets, trampolines and even discarded appliances, nonworking vehicles, functional power tools and weapons.

The American legal system has long recognized that certain objects or conditions on a person’s property may irresistibly draw children. Courts also can hold property owners liable if children are injured or killed by those conditions.

Homeowners who have dangerous items on their property have a legal responsibility to reduce the risk of harm to children.

To best serve homeowners, refresh their knowledge about attractive nuisances. Remember to address these questions:

  1. What defines an attractive nuisance?
  2. What liability exposures do attractive nuisances present to homeowners?
  3. What are examples of attractive nuisances for homeowners?
  4. What risk management steps can agents suggest to homeowners?
  5. Does homeowners insurance provide coverage for attractive nuisance claims?

While the legal doctrine of attractive nuisance also applies to industrial, commercial, agricultural and other properties, this article is limited to the impact of attractive nuisance doctrine to homes and homeowners.

What defines an attractive nuisance?

“A child at play knows no boundary lines beyond which he may not go, especially when there is an instrumentality on or condition of the land beyond the boundary to which he is attracted.” – Robert F. Boden, “Elements of Attractive Nuisance,” Marquette Law Review, Winter 1950-51

Homeowners might naturally assume that trespassers are responsible for their own behavior and injuries. Attorneys, judges and others see it differently when it comes to children.

The U.S. legal system made a judgment decades ago holding homeowners financially liable for injuries to children who are attracted to their property by a feature or condition. The basis of that new “attractive nuisance” doctrine was that children are inherently curious and may lack the ability to see the danger in certain activities.

Attractive nuisance liability arises from the broader legal principle of “premises liability.” Property owners are responsible for injuries suffered on their property if they were negligent in handling and/or maintaining their property.

In a homeowner’s world, an attractive nuisance could be a swimming pool with an unlocked gate on a 90- degree summer day. A child might not be aware that going in a neighbor’s pool alone could be dangerous.

What liability exposures do attractive nuisances present to homeowners?

Local, state and common law precedents call for homeowners to use reasonable precautions to protect the safety of people on their property, including children. This encompasses trespassers as well as family and invited guests.

If a reasonable person can foresee a risk from a situation on a property and the homeowner hasn’t taken actions to prevent injuries, they can be liable. It doesn’t matter if the injured party was a visitor or an uninvited child.

A key element for courts’ application of the attractive nuisance doctrine is the age of the child. Statutes and case law aren’t always clear on when a child can recover damages from a homeowner. The younger the child, the more likely the landowner will be liable. If a 15-year-old were to climb a fence and enter a pool, they might be considered old enough to understand the risk.

Another mitigating factor that might shield a homeowner from liability is whether the child was instructed to stay away from the property.

Keep in mind, courts under common law have drawn a distinction between naturally occurring features that attract children, such as a creek, and artificial features, such as a garden fountain. Common law also has conceded that children can understand some dangers, such as the chance of getting burned by a fire or the dangers of falling from a height.

Typically, for attractive nuisance claims to impose liability on a landowner, a claimant or plaintiff must demonstrate the landowner:

In short, a homeowner can be found responsible if they fail to use a standard of care that a reasonable person would have used with an attractive nuisance.

Courts have been known to consider the cost for the homeowner to remedy the condition that led to the attractive nuisance claim. The court might compare the cost of the remedy against the risk to children.

In the eyes of a court, reasonable precautions are actions like installing a locked fence around a swimming pool and moving hazardous objects to reduce access to them. By contrast, hanging a “no trespassing” sign might not reduce a homeowners’ liability for attractive nuisances, because some children can’t yet read or understand such a sign.

Remember to inform homeowners that the law may impose a heightened duty on them to safeguard children when a condition on their property poses a danger.

What are some examples of attractive nuisances for homeowners?

Claimants and defendants argue on a case-by-case basis whether an object or condition is an attractive nuisance. History shows the following can be attractive nuisances:

Trampolines are a special safety concern for pediatricians. The Journal of Pediatric Orthopaedics reports more than 1 million trampoline-related emergency room visits per year, many involving head and spine injuries. In fact, some insurance carriers may not be willing to issue coverage for homeowners with certain equipment, such as trampolines.

What risk management steps can agents suggest to homeowners?

An important guideline for any homeowner is to make dangerous objects or conditions as inaccessible as possible. Landowners can take safety precautions to prevent foreseeable injuries. Steps include:

Does homeowners insurance cover attractive nuisance claims?

Homeowners insurance typically covers liability claims, including those caused by attractive nuisances. But homeowners are wise to consider whether the liability insurance limit in their policy is adequate for the risk they face. You can advise homeowners with swimming pools, trampolines or other attractive nuisances to increase their policy limits and/or add coverage under a personal umbrella policy.

For example, a $100,000 liability limit may be woefully inadequate if a child is killed or suffers a serious injury on a homeowner’s property.

An umbrella policy provides higher liability limits to protect insureds from catastrophic liability claims. This liability coverage stacks on top of the liability coverage from their homeowners, personal auto or watercraft policies. Umbrella policies usually cover bodily injury, property damage and personal injury.

Beyond simple financial protections, an insurance professional’s advice may save a life or prevent a lifechanging injury.

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