Attractive Nuisance

What Is An Attractive Nuisance?

An attractive nuisance is a man-made hazard that a child is likely to encounter and unlikely to understand. Swimming pools are the standard example. Others include construction sites, excavations, abandoned vehicles and appliances, machinery, and unsecured equipment. The word “attractive” is a little misleading: under the modern rule the child does not have to have been lured onto the land by the hazard itself. What matters is that children were likely to be there and that the condition posed a serious danger they would not recognize.

The doctrine applies to artificial conditions, meaning things people build or place on land. It is an exception to the general rule about trespassers, so it comes into play only when the child was on the property without permission. A child who was invited, such as a guest at a pool party, is a lawful visitor and is owed reasonable care without any special doctrine.

How Does North Carolina Law Define The Attractive Nuisance Rule?

The starting point is N.C. Gen. Stat. § 38B-2: a possessor of land, including an owner, lessee, or other occupant, does not owe a duty of care to a trespasser and is not subject to liability for a trespasser’s injury. The exceptions follow in N.C. Gen. Stat. § 38B-3. One covers intentional harm and willful or wanton conduct. One covers a trespasser the possessor discovers in a position of peril. The third is the child trespasser rule for harms caused by an artificial condition.

Under that rule, a possessor may be liable for bodily injury or death to a child trespasser only if all five statutory conditions apply. N.C. Gen. Stat. § 38B-4 defines a child trespasser as a trespasser who is less than 14 years old or who has the level of mental development found in a person less than 14.

What Must A North Carolina Property Owner Do About An Attractive Nuisance?

Use reasonable care, measured against the risk. The statute does not require a property owner to make land childproof. It asks whether the danger could have been removed or guarded at a burden that was slight compared with the risk of serious injury or death. A locked gate around a pool, a cover on a well, a fence around an excavation, and keys taken out of equipment are inexpensive compared with a child’s life, which is why the failure to take such steps is the usual basis for liability.

The owner’s knowledge matters too. The rule applies when the possessor knew or had reason to know that children were likely to come onto that part of the property. A pool behind a house in a neighborhood full of children, or equipment stored beside a school bus stop, is judged differently from the same hazard on remote, posted land.

• Fence and lock pools, pits, and equipment yards.
• Remove or disable abandoned appliances, vehicles, and machinery.
• Secure ladders, chemicals, and tools on construction sites after hours.
• Act on warning signs: evidence that children have been coming onto the property raises the duty.

Can A Child’s Own Fault Defeat An Attractive Nuisance Claim In North Carolina?

Contributory negligence, the rule that bars an adult’s claim when the adult’s own negligence contributed to the injury, applies differently to children. Under North Carolina’s rule of sevens, a child under seven is incapable of contributory negligence as a matter of law. A child between seven and fourteen is presumed incapable, and the defense has to overcome that presumption with evidence about the particular child’s age, intelligence, and experience. The statute builds in a related question: the claim requires that the child did not discover the condition or realize the risk.

These protections line up with the statute’s age limit. For a teenager of fourteen or older, the child trespasser exception does not apply at all unless the teenager has the mental development of a younger child, and the general no-duty rule for trespassers controls.

What Should Parents Do After A Child Is Hurt On Someone Else’s Property?

Get medical care first, then preserve the evidence. Photograph the hazard, the fence or lack of one, gates, locks, and signs, because property owners often fix these things within days. Write down who knew children played there. Homeowner’s and commercial property insurance usually covers these claims, and insurers investigate them quickly.

Time limits are more forgiving for the child than for the parents. A minor’s own injury claim is generally tolled under N.C. Gen. Stat. § 1-17 until age 18, but the parents’ claim for the child’s medical expenses is subject to the ordinary three-year period in N.C. Gen. Stat. § 1-52(16), and the evidence will not wait. Any settlement for the child will require a guardian ad litem and court approval.