Your neighbor’s doing some construction next door, and your little one loves watching the machinery at work. One day, he can’t resist the temptation to go play with that bulldozer in the back yard. He slips outside, sneaks into your neighbor’s yard, and cuts himself while climbing on the equipment.
Under New York’s attractive nuisance doctrine, your neighbor might be liable for your child’s injury. Below, a Brooklyn premises liability lawyer explains the attractive nuisance doctrine and how it could affect your case.
The Basics of Premises Liability Explained
In New York and elsewhere, property owners have a legal responsibility to maintain their properties and keep them safe for visitors. If they fail to do so and someone is injured, the victim has the right to recover damages through a lawsuit.
Property owners are liable for failing to correct hazardous conditions, such as:
- Loose carpeting and damaged floor tiles
- Damaged stairs and handrails
- Poor lighting
- Slippery floors
- Icy sidewalks
- Inadequate security
Normally, for premises liability law to apply, the property owner must have invited a person onto their property. That could include a neighbor inviting their friends over for a party or a store that’s open to the public.
Trespassers usually cannot seek damages under premises liability laws because they weren’t invited onto the property. However, there is an exception if the trespasser is a child.
What Is an Attractive Nuisance?
“Attractive nuisances” are hazardous conditions, places, or objects that appeal to trespassing children who are too young to understand their dangers. Common attractive nuisances include:
- Swimming pools: Swimming pools and their smaller cousins, hot tubs, are among the biggest threats to unattended children. In 2021, 380 children tragically lost their lives by drowning in pools. Children five years and under represent 77% of nonfatal drowning injuries and 75% of drowning deaths.
- Construction sites: To adults, a construction site is nothing special. To children, though, it’s a wonderland. There are places to climb and lots of fun-looking equipment to play with. If you’re aware of the dangers of the construction industry (one in five workplace deaths happened in construction in 2022), you know this is a disaster waiting to happen.
- Abandoned vehicles and equipment: Abandoned cars, trailers, motorcycles, and lawnmowers draw little ones like moths to a flame. Children can climb inside and become trapped, cut themselves on rusty machinery, or wind up stuck beneath a piece of heavy equipment.
- Holes in the ground: Don’t underestimate the power of a simple hole to attract children. Should a child climb into a hole that’s deep enough, they may not be able to climb back out.
- Trampolines: Trampolines are fun for both adults and children, but they’re a major source of injuries. In 2018, there were more than 300,000 trampoline injuries requiring medical treatment, a third of which necessitated a trip to the emergency room.
Can You Base Your Claim on the Attractive Nuisance Doctrine?
If your child suffered an injury because of an attractive nuisance, can you recover damages from the property owner? Under New York’s attractive nuisance doctrine, yes. You’ll need to hire a premises liability lawyer who can prove that the property owner neglected their duty of care. This involves establishing that:
- The property had a dangerous condition or object that posed a risk of injury or death to a child.
- The dangerous condition or object was attractive to children who were too young to understand its risks.
- The property owner knew, or should have known, that children might trespass on the property.
- The property owner’s benefit from keeping the condition or object on the property and the burden of eliminating the hazard were small compared to the risk the hazard posed to children.
- The property owner failed to remove the danger.
Winning Your Premises Liability Case
Premises liability cases that involve trespassing children can be a bit more difficult to win than those involving invited guests. The defendant will probably argue that the child “should have known better,” and thus, they’re not responsible for their injuries.
For example, suppose you have an eight-year-old son. Your son goes over to the neighbor’s house unattended, jumps in the pool, and nearly drowns. Your neighbor might argue that the child was old enough to know water can be dangerous.
This is why you must have a premises liability lawyer to represent you. Your lawyer will gather evidence to prove that your child was incapable of understanding the dangers of the attractive nuisance, especially if you don’t have a pool yourself. They may interview witnesses, such as your child’s doctor and teachers, to strengthen your case.
If your premises liability claim is successful, you can recover damages such as your child’s medical treatment costs, as well as non-economic damages like emotional distress.
Hire an NYC Premises Liability Lawyer Who Will Fight Aggressively on Behalf of Your Child
At Ross & Hill, our attorneys believe that you and your child shouldn’t have to suffer because of a negligent property owner. If you need help documenting premises liability or are ready to start your claim, call 646-351-6222 for a free consultation.
Frequently Asked Questions
Is there an age cutoff for the attractive nuisance doctrine?
There is no age restriction in New York for filing a claim under the attractive nuisance doctrine. Instead, courts evaluate young victims on a case-by-case basis to determine whether the victim meets the definition of a “youth.”
Can adults use the attractive nuisance doctrine?
Although the attractive nuisance doctrine applies mainly to children, adults can also invoke it if they suffered injuries while trying to rescue a child from a negligent property owner’s dangerous condition.
What defenses might someone use against attractive nuisance claims?
A defendant might argue that they took reasonable steps to prevent children from accessing the dangerous condition or hazard. They might also claim that the child’s injury was caused by an “unforeseeable misuse” of the property or object in question.
