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What is the attractive nuisance doctrine?

As summer approaches and you send your children back outside to play, you no doubt hope that they will no better than to avoid those things in Hermitage that can cause them harm. As an adult, you certainly know better than to go to another person’s house or on their property in pursuit of an attraction you find interesting. With this comprehension also comes the knowledge that if you do so, the property owner will not be liable if you were on their land without permission. Yet is it realistic to expect the same comprehension from your kids? 

The attractive nuisance doctrine recognizes that there are features and attractions that can entice children (especially young children) to them despite their inherent dangers. For example, the thought of going swimming may override a child’s apprehension of getting into a pool by themselves. Because of this lack of understanding on your child’s part, the attractive nuisance doctrine allows you to hold property owners responsible of your kids are injured by features on those properties (even if your kids were there without permission). 

Information shared by the Penn State Law School points that five elements must be present for you to apply the attractive nuisance doctrine to your case: 

  • That an artificial attraction on a property makes trespass by children is foreseeable 
  • That the property owner was aware of the danger
  • That your child was incapable of protecting themselves from the danger
  • That the burden of protecting children from the attraction was slight compared to the risks it posed
  • That the property owner did not take steps to protect children from it

“Protection” in this context might be erecting a fence around an attraction that limits childrens’ access to it.