Robbins: Attractive nuisance
All of us like to believe that we’re attractive, at least some of the time, to at least someone. If we slice it thin enough, maybe we are. And most of us would admit, in candor to ourselves at least, that we sometimes are a nuisance — perhaps to a wider audience than those referred to in the immediately preceding sentence. The point I wish to postulate is that one may be both attractive and a nuisance, often at the same time.
First things first; no, you have not mistakenly wandered into a Neil Rosenthal column. “Attractive nuisance” has not a darn thing to do with flirting, troublesome relationships, pheromones, sex drive, chocolates on Valentine’s Day, or how — “As attractive as he is, I wish, at least once in awhile, he would do the dishes, or stop whistling the Allman Brothers! She is so darn cute; I wish that she didn’t drive me nuts!”
Nope. Not a thing to do with that. This is a legal column, after all.
At law, an attractive nuisance is sort of like a shiny object. Let’s take your neighbor’s koi pond for example. I use the example of a koi pond because, when my younger son — now himself a lawyer — was 2 or 3 years old, a koi pond was the demon that attracted him.
To many, if not all 2 to 3 year olds, a koi pond is downright irresistible. It’s got everything an inquisitive toddler could ever want: water, pretty fishies, and lots and lots of motion. The lily pads with which many koi ponds are decorated are deceptive. They look almost firm enough to provide a handy perch upon which a normal 2-year-old could squat and snag a fish or two for closer study. Of course, that doesn’t work so well. If left unattended, the 2-year-old will, instead, learn a wet lesson in gravity, hydrodynamics, and the laws of physics.
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The point is, though, that the koi pond sparks a toddler’s imagination and, like a magnet, draws the child near.
What if, God forbid, the child ends up hurt?
Those sorts of “what ifs” often end up as lawsuits.
The legal reasoning goes something like this; a neighbor has a koi pond, kids are drawn like moths to its watery flame, the pond is not safely guarded (i.e., no fence to keep little ones at bay), the koi pond owner is sued and has some serious ‘splainin’ to do before the court as to why he shouldn’t be liable for the toddler’s injuries. If he can’t explain things properly, then Nellie, grab your wallet!
So what, exactly, if not the comely lad or lass common sense instructs you shouldn’t be dating, does “attractive nuisance” mean?
It is this; one who maintains a dangerous condition (read here, in our example, the koi pond) which is likely to attract others (especially, and most commonly, children) on to his or her property is under an affirmative duty to take precautions to protect those so attracted from potential harm. The owner of the property upon which the potentially dangerous condition is located must post a warning or take other affirmative action (such as fencing) to protect children from the irresistible attraction. And if the owner fails to do so (or fails to adequately do so) then, notwithstanding that the child came onto his/her property, the owner may be held liable for the child’s injuries.
The doctrine of attractive nuisance imposes a duty on the owner to be sensitive to potentially dangerous conditions to which children might reasonably be drawn.
Although the doctrine generally applies to children, it can, in some instances, be applied to adults as well. Let’s say, for example, when my son, Parke, fell into the koi pond, rather than simply grabbing him by the ankles and extracting his soggy self, I, in a moment of heroic fatherly bravado, leaped in after him and, in so doing, conked my head on some unseen element that lurked beneath the surface. If my actions had been reasonably foreseeable (that is, that it would be reasonable and natural for a father to leap heroically in after his child, plunging head-first toward the murky depths), then I too could seek recovery for my injuries from the owner.
The doctrine of attractive nuisance is an exception to the general rule that, however humble, a person’s home is his or her castle and that, generally, no particular care is owed to the uninvited nor is one required to protect a trespasser from harm.
Common attractive nuisances may include swimming pools, hot tubs, building sites and/or building materials, dirt slopes, and a myriad of other things. When on one’s property, one is wise to consider whether a child might reasonably be attracted to the feature and, if so, to take reasonable precautions.
In our case, Parke turned out just fine. All grown up now, he is a hale and hardy fellow. The koi pond, as you might expect, holds no memory at all for him.
But thanks for asking.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce, and civil litigation. He may be reached at 970-926-4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” and “Why I Walk so Slow” are currently available at Barnes and Noble & Amazon.com.
