In premises liability law, the duty of a homeowner to trespassers is simply to refrain from intentionally, willfully or wantonly injuring them. When it comes to trespassers who are children, however, homeowners may be liable for personal injuries caused by dangerous artificial conditions on the property that are typically attractive to small children. The risk involved in the condition must be known to the homeowner, but not to the trespassing child.
If there is a condition on the homeowner's land that is dangerous but attractive to small children, the homeowner has a duty to exercise reasonable care to eliminate the danger or otherwise protect the child. If the homeowner fails to take reasonable steps to protect tiny trespassers against the danger, he or she may be liable if they are injured.
The Attractive Nuisance Must be an Artificial Condition on the Land
For the attractive nuisance doctrine to apply, the condition on the property must be artificial, not natural. Examples of artificial conditions are trampolines, swimming pools and vehicles. Natural conditions on land include such things as trees, bodies of water and cliffs or ravines. If a trespassing child is injured by a natural condition on the homeowner's land, the general rule concerning trespassers will apply and the child may be unsuccessful in a personal injury claim against the homeowner.
The Danger Posed by the Attractive Nuisance Must be Latent
The attractive nuisance doctrine requires that the artificial condition pose a threat that would not be obvious to a young child. The point of the attractive nuisance doctrine is to protect very young children who, because of their tender years, are incapable of comprehending the risk of an attractive, but dangerous, artificial condition. A homeowner is not required to keep the land free of conditions which even young children could observe and comprehend the risk.
A large hole created by an excavation is certainly an artificial condition; however, any child old enough to be out and about on his or her own could probably comprehend the danger inherent in such a condition. The attractive nuisance doctrine is not intended to insure children against their own recklessness. Less obvious dangers for children might lurk in high-powered electrical wires, loose boards or swimming pools.
If the Attractive Nuisance Doctrine is Inapplicable, Trespassers Enter at Their Own Risk
If the injured child cannot establish all the elements for maintaining a premises liability lawsuit based on attractive nuisance, the conventional rule regarding trespassers applies. That is, a homeowner has no duty to prevent injury to an undiscovered trespasser on the premises. But when the homeowner discovers the trespasser's presence, he or she must refrain from intentionally, willfully or wantonly injuring the trespasser.
In sum, for the attractive nuisance doctrine to apply there must be an artificial condition which is clearly attractive and likely dangerous to children. It cannot be obviously dangerous in itself, and its dangerousness must be known to the homeowner and not to the trespassing child. The homeowner's duty under the attractive nuisance doctrine is to exercise reasonable care to eliminate the danger or otherwise protect the child.
Source: Restatement (Second) of Torts § 339 (1965).
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