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The Attractive Nuisance Doctrine

On Behalf of | Mar 4, 2024 | Firm News

One saying this business attorney likes using is, when the cat is away, the mice will play, right? Let’s face it. Business owners get very nervous with children around. Children are naturally curious and tend to touch things. In today’s cell phone age, sometimes parents are not as attentive as they used to be.

Some industries make considerable profits based on the presence of children. I am thinking about toy stores, Chuck E Cheese, and the like. They market to children, want children to come into their store, and reap the benefits. Bravo!

But other industries want children to stay as far away as possible. These are industries that involve danger, such as industrial machinery, oil and gas, and the like. But what happens when a curious child wanders onto your property. What do you do then?

The Attractive Nuisance doctrine addresses this issue. The attractive nuisance doctrine imposes liability on landowners when children who are otherwise trespassers were attracted to something on the property. Here is the test for what constitutes an attractive nuisance in Oklahoma:

Artificial Conditions Highly Dangerous to Trespassing Children

I once had a very interesting premises liability lawsuit I defended when I was an insurance defense lawyer. The facts are as follows. A small town in a rural county in Oklahoma held a weekly livestock auction. Because the event drew large crowds, merchants also set up small booths and would sell various handmade items. It was a popular event.

It was common for children to attend as they could see all the animals, the merchants, and the like. There was even an area that had some playground equipment.

One weekend a couple dropped off their children to let them play at the auction while they ran errands. These children were small, less than 10 years old. Across the street from the auction was private property. On the private property, the landowner had some livestock and approximately 10 dogs. He did not breed dogs. He just loved them and kept many. The children wandered across the road and began playing with one of the dogs and the dog bit the child. The child sustained injury as the bite was rather deep.

So let’s apply the above criteria and walk through this scenario. The first element requires that the landowner believe or have reason to believe that there will be children in this area. This was highly contested in our case. We argued that it was not likely that a child would be in this area as it was across the street on private property. The plaintiff’s attorney argued that there were no signs of any kind indicating that the property across the street was somehow separate from the livestock auction. In fact, the private landowner worked for the couple who ran the livestock auction, further intertwining things. Ultimately, I believe the plaintiff’s attorney was correct on this point.

The second element requires that the landowner know or should know that death or serious bodily harm could result to children. With any type of animal, there is always a potential risk of harm to children. In this case, the dog that ultimately bit the child was trying to get away and we believe the child happened to be taunting the dog. In our case, it was difficult to discern the facts as the children changed their stories numerous times and no adults were present. In any event, I believe it is safe to say that the landowner should have known.

The third element requires that the children not appreciate the danger because of their youth. I believe the children in our case owned a dog so it is perfectly reasonable for them to think that all dogs are alike. Even if they didn’t own a dog, there is a good chance they have been to a public park or seen another person walking a dog in their neighborhood. In other words, there is a very good chance these children saw dogs and did not appreciate that the dog could be a threat.

The fourth element is a balancing test. It essentially says that the burden in remedying the dangerous condition is minimal when compared to the benefit of protecting children. This element puts the onus on the landowner to act in the best interests of children given their limited ability to comprehend certain dangers. In our case, there was a gate that was not properly locked, allowing the children access to the dog’s area. I believe that had the gate been locked and the children climbed over it, we would have had a much stronger case. But even if the children climbed the gate, the landowner would still have a responsibility to put something on top of the gate to further prevent children from climbing over it.

The final element requires the landowner to fail to exercise reasonable care in protecting children. In our case, I believe that a jury would likely conclude that the landowner failed to exercise reasonable care. The gate was not locked. There were no “Beware of Dog” signs. There was no signage indicating that the property on which the children wondered was private and separate from the auction property.

I believe the take away from this is that landowners can never be too careful. If you have a dog, a swimming pool, some equipment, or anything that might peak a child’s interest, put your best foot forward to keep your exposure minimal and children safe.

If you have a condition on your premises that you believe qualifies as an attractive nuisance, and you’re not certain what to do to prevent harm, contact RC Law Group. We are happy to inspect the premises and make recommendations for how to keep children safe and your company protected from a lawsuit.