Injuries to Children "Attracted" to a Danger

Posted By Matthew Clawson || 9-Dec-2015

Kids will be kids. They are curious roamers, attracted to all kinds of things that may not be good or safe for them. As parents we do our best to direct and supervise their curiosity. Importantly, even when we cannot be with them every second, and they are injured in pursuit of an “attraction,” the law permits children to make a claim for compensation for those injuries. This is called the “attractive nuisance” doctrine.

The earliest recognition of the attractive nuisance doctrine in the United States appears in a reported case from 1873, involving a boy’s injury on a railroad turntable. In that case, a six-year-old boy wandered onto a railroad’s property and injured his foot on a turntable. The U.S. Supreme Court held that, considering his age, the railroad company could be found negligent, noting that “while a railway company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises…it is not exempt from responsibility to such strangers for injuries arising from its negligence…” Simply speaking, the court recognized that the boy, in being attracted to the turntable, behaved as children typically do and the landowner should have reasonably foreseen that children would play on an open structure such as a turntable.

In 1901 the attractive nuisance doctrine made its way to Colorado when a child was crushed and killed while playing with a large piece of cement piping. The Colorado court noted that the piping “was a temptation to children who had not arrived at years of discretion and judgment” and held the owner of the premises liable. The court stated that, if an owner sees fit to keep in his premises something that is an attraction and allurement to the natural instincts of childhood, the law imposes upon him the corresponding duty to take reasonable precautions to prevent the intrusion of children, or to protect from personal injury such children as may be attracted to the premises.

In subsequent cases, Colorado courts refined the parameters of the attractive nuisance doctrine. For instance, if the landowner observes the child playing near the dangerous area on his land and warns the child to stay away, the landowner cannot be held liable if the child ignores the warning and is injured. Nor will a landowner be liable for a child’s injuries on his premises if the condition was not really an “attraction” that enticed the curiosity of the child. The “attraction” must be “an unusual thing, unusually, extraordinarily attractive, not an ordinary matter.” In that case, a child who entered a shack and opened a box that turned out to contain dynamite blasting caps, could not recover for his injuries when they exploded.

In a 1990, Colorado landowner liability law was codified in the state statute books, limiting the attractive nuisance doctrine to children under the age of 14. If a child 14 years or older is injured in similar circumstances, the law presumes that the child was capable of appreciating any risks of harm from the attractive activity or condition on the premises.

Although the cases over the years had involved injuries to trespassing children, the Colorado Supreme Court has recently held that a child who was invited onto the premises may also recover for injuries sustained in an “attraction” on the premises. In that case, an eleven year old boy was playing in a “Blaster Bouncer Jumping Castle” that came unmoored in a gust of wind that hurled the structure 15-75 feet into the air and 100-200 yards away before it crashed onto the ground. The boy sustained multiple brain injuries and fractures. The Colorado court held that the boy could seek compensation for his injuries based on the “attractive nuisance” doctrine. Even so, the boy’s attorneys will have to prove: that his injuries were caused by an unusual activity carried on on the premises; that he was attracted to the activity; that the activity created an unreasonable risk of injury to children such as the boy, which the landowner knew about or, as a reasonably careful person, should have known about; that the boy was too young to appreciate or realize the risk of injury to himself from the activity; and that the landowner failed to exercise reasonable care to protect persons like the boy from injury by the activity.

The case was sent back to the lower court to be concluded and we don’t know if the boy’s attorney prevailed in the case. Attractive nuisance cases are not easy to prove but should be explored if a child is injured as a result of an unprotected condition or activity on someone’s land or at a business. To determine whether such a claim exists, the assistance of experienced personal injury attorneys is essential. Experienced personal injury attorneys at Clawson & Clawson LLP will review the facts of the case at no cost and can offer options for pursing such a claim for the child.

Categories: Personal Injury

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