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