Avoiding the “Attractive Nuisance”

Trespassing children are any horse facility’s nightmare. Children cannot read warning signs. They are capable of climbing over or crawling under fences. Can the law impose certain responsibilities on horse facilities to protect young children who trespass on your property? Yes. Most states across the country have adopted the “attractive nuisance” doctrine. Unlike the typical rule that there is generally no duty to protect trespassers, the “attractive nuisance” doctrine provides that a landowner will be liable for harm caused by artificial conditions of the land that are highly dangerous to trespassing children.

What is an “Attractive Nuisance”?
“Attractive nuisances” are potentially harmful objects and conditions of the land that, by their features, have the ability to attract children. In most states, “attractive nuisances” are typically not natural conditions of the land, such as a pond, but rather are conditions that were created by the landowner or someone on the property. Examples are swimming pools, sewer drains, tractors, and farm equipment. Depending on the circumstances, horses might also qualify. Young children are unable to understand the dangers these conditions create. Leaving these items in the view and reach of young children will almost certainly tempt the child to approach and meddle with them.

In some states, laws exist that identify attractive nuisance-type hazards and explain how to control them. For example, laws may regulate the storage or disposal of hazardous chemicals (such as pesticides and paints). Also, to protect small children, some laws restrict the height of barbed wire fencing. Many city ordinances require certain fencing around swimming pools or dictate how to discard old refrigerators in order to protect children from drowning or being trapped inside.

When Can Liability Exist?
Some factors courts have considered in evaluating whether a landowner is liable for an attractive nuisance are: (1) whether the landowner knew or had reason to know that children could trespass near the hazard; (2) the type of hazard on the property and whether the hazard poses an unreasonable risk of death or serious bodily harm to children; (3) whether the children, due to their youth, could appreciate the risk involved; (4) the importance to the landowner of maintaining the hazardous condition; (5) how the burden of eliminating the hazard compares to the risk of harm involved; and (6) whether the landowner exercised reasonable care to eliminate the hazard or protect the children.

Very few cases thus far have centered on whether a horse or pony qualifies as an attractive nuisance.” However, courts addressing the issue have focused on the animal’s basic tendencies. Under this rationale, horses known to be gentle with no vicious propensities do not create a foreseeable risk of serious injury to others and, therefore, would not qualify as an “attractive nuisance.”

Defenses
Where an attractive nuisance is involved, the landowners will typically base their defenses on the factors listed above. Do not assume that you can successfully defend a case by blaming the children’s’ parents for failing to properly supervise them; courts will usually not consider these arguments sufficient to defeat a valid “attractive nuisance” claim.

Conclusion
In conclusion, keep these concepts in mind:

• There are many efforts you can make to avoid liability for an “attractive nuisance.” Check your property regularly to spot the types of hazards that might foreseeably create a risk of injury to others. Evaluate the location of these items and the dangers they may pose. Consider removing them, moving them away from plain view, placing them in locked enclosures, or installing secure fencing near them.
• Check your local ordinances (found in your local public library or city hall) for regulations involving fencing and storage of items. Make sure you comply.
• If you fail to take certain precautions required under your insurance policy to protect others from hazards on your property, your insurance coverage might be voided. Ask your insurance agent if your policy requires you to take any special precautions.
• Your conduct in allowing children to trespass on your property could almost certainly make you liable if an injury results from an “attractive nuisance.” When you see trespassing children, warn them of the danger and consider ordering them off of your property. Send their parents a certified letter cautioning them to keep the children away. These efforts, in themselves, will not eliminate your liability, but they will help evidence the many precautions you are taking to protect others.
• Landowners in some states can be liable without actually knowing that children trespass onto their property. Those states, such as Michigan, will make property owners liable if they “had reason to know” that children were likely to trespass. Consequently, horse facilities located near residential areas or schools may have an extra burden to protect child trespassers from hazards on the land.
• If you have horses with known dangerous tendencies, securely pasture them away from areas where children can easily see and approach them. When those horses are kept inside, make sure their stalls prevent them from harming or approaching people.
• This article is not intended to constitute legal advice. Since every “attractive nuisance” situation is unique, consult with a knowledgeable attorney.

Julie I. Fershtman, Esq.
About the Author

Foster Swift Collins & Smith PC
One Northwestern Plaza
28411 Northwestern Hwy., Ste. 500
Southfield, Michigan  48034

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