Attractive nuisance doctrine

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An abandoned swimming pool may be considered an attractive nuisance 2016 26 November, Swimming pool area, Abandoned Ocean Ville apartment Hotel, Albufeira.JPG
An abandoned swimming pool may be considered an attractive nuisance

The attractive nuisance doctrine applies to the law of torts in some jurisdictions. It states that a landowner may be held liable for injuries to children trespassing on the land if the injury is caused by an object on the land that is likely to attract children. [1] The doctrine is designed to protect children who are unable to appreciate the risk posed by the object, by imposing a liability on the landowner. [1] The doctrine has been applied to hold landowners liable for injuries caused by abandoned cars, piles of lumber or sand, trampolines, and swimming pools. However, it can be applied to virtually anything on the property.

Contents

There is no set cutoff point that defines youth. The courts will evaluate each "child" on a case-by-case basis to see if the "child" qualifies as a youth. If it is determined that the child was able to understand and appreciate the hazard, the doctrine of attractive nuisance will not likely apply. [2]

Under the old common law, the plaintiff (either the child, or a parent suing on the child's behalf) had to show that it was the hazardous condition itself which lured the child onto the landowner's property. However, most jurisdictions have statutorily altered this condition, and now require only that the injury was foreseeable by the landowner.

History

The attractive nuisance doctrine emerged from case law in England, starting with Lynch v. Nurdin in 1841. In that case, an opinion by Lord Chief Justice Thomas Denman held that the owner of a cart left unattended on the street could be held liable for injuries to a child who climbed onto the cart and fell. [3] The doctrine was first applied in the United States in Sioux City & Pacific Railroad Co. v. Stout , an 1873 case from Nebraska in which a railroad company was held liable for injuries to a child who climbed onto an unsecured railway turntable. [4] The term "attractive nuisance" was first used in 1875 in Keffe v. Milwaukee & St. Paul Railway Co., a Minnesota case. [5] The doctrine has since been adopted in some other common law jurisdictions, such as Canada, [6] but not universally.

Conditions

According to the Restatement of Torts standard, which is followed in many jurisdictions in the United States, there are five conditions that must be met for a land owner to be liable for tort damages to a child trespasser as a result of artificial hazards.

(See Restatement of Torts § 339).

Jurisdictions

US states that use the Restatement test include:

Related Research Articles

In law and insurance, a proximate cause is an event sufficiently related to an injury that the courts deem the event to be the cause of that injury. There are two types of causation in the law: cause-in-fact, and proximate cause. Cause-in-fact is determined by the "but for" test: But for the action, the result would not have happened. The action is a necessary condition, but may not be a sufficient condition, for the resulting injury. A few circumstances exist where the but-for test is ineffective. Since but-for causation is very easy to show, a second test is used to determine if an action is close enough to a harm in a "chain of events" to be legally valid. This test is called proximate cause. Proximate cause is a key principle of insurance and is concerned with how the loss or damage actually occurred. There are several competing theories of proximate cause. For an act to be deemed to cause a harm, both tests must be met; proximate cause is a legal limitation on cause-in-fact.

A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable by the state. While criminal law aims to punish individuals who commit crimes, tort law aims to compensate individuals who suffer harm as a result of the actions of others. Some wrongful acts, such as assault and battery, can result in both a civil lawsuit and a criminal prosecution in countries where the civil and criminal legal systems are separate. Tort law may also be contrasted with contract law, which provides civil remedies after breach of a duty that arises from a contract. Obligations in both tort and criminal law are more fundamental and are imposed regardless of whether the parties have a contract.

Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels, and trespass to land.

This article addresses torts in United States law. As such, it covers primarily common law. Moreover, it provides general rules, as individual states all have separate civil codes. There are three general categories of torts: intentional torts, negligence, and strict liability torts.

Trespass to chattels is a tort whereby the infringing party has intentionally interfered with another person's lawful possession of a chattel. The interference can be any physical contact with the chattel in a quantifiable way, or any dispossession of the chattel. As opposed to the greater wrong of conversion, trespass to chattels is argued to be actionable per se.

At common law, battery is a tort falling under the umbrella term 'Trespass to the person'. Entailing unlawful contact which is directed and intentional, or reckless and voluntarily bringing about a harmful or offensive contact with a person or to something closely associated with them, such as a bag or purse, without legal consent.

Nuisance is a common law tort. It means something which causes offence, annoyance, trouble or injury. A nuisance can be either public or private. A public nuisance was defined by English scholar Sir James Fitzjames Stephen as,

"an act not warranted by law, or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects".

Vicarious liability is a form of a strict, secondary liability that arises under the common law doctrine of agency, respondeat superior, the responsibility of the superior for the acts of their subordinate or, in a broader sense, the responsibility of any third party that had the "right, ability or duty to control" the activities of a violator. It can be distinguished from contributory liability, another form of secondary liability, which is rooted in the tort theory of enterprise liability because, unlike contributory infringement, knowledge is not an element of vicarious liability. The law has developed the view that some relationships by their nature require the person who engages others to accept responsibility for the wrongdoing of those others. The most important such relationship for practical purposes is that of employer and employee.

A licensee can mean the holder of a license or, in U.S. tort law, is a person who is on the property of another, despite the fact that the property is not open to the general public, because the owner of the property has allowed the licensee to enter. The status of a visitor as a licensee defines the legal rights of the visitor if they are injured due to the negligence of the property possessor.

<span class="mw-page-title-main">English tort law</span> Branch of English law concerning civil wrongs

English tort law concerns the compensation for harm to people's rights to health and safety, a clean environment, property, their economic interests, or their reputations. A "tort" is a wrong in civil law, rather than criminal law, that usually requires a payment of money to make up for damage that is caused. Alongside contracts and unjust enrichment, tort law is usually seen as forming one of the three main pillars of the law of obligations.

<i>Rylands v Fletcher</i> Landmark House of Lords decision on tort law

Rylands v Fletcher (1868) LR 3 HL 330 is a leading decision by the House of Lords which established a new area of English tort law. It established the rule that one's non-natural use of their land, which leads to another's land being damaged as a result of dangerous things emanating from the land, is strictly liable.

<span class="mw-page-title-main">Trespasser</span>

In the law of tort, property, and criminal law a trespasser is a person who commits the act of trespassing on a property, that is, without the permission of the owner. Being present on land as a trespasser thereto creates liability in the trespasser, so long as the trespass is intentional. At the same time, the status of a visitor as a trespasser defines the legal rights of the visitor if they are injured due to the negligence of the property owner.

In tort law, the standard of care is the only degree of prudence and caution required of an individual who is under a duty of care.

Premises liability is the liability that a landowner or occupier has for certain torts that occur on their land.

The following outline is provided as an overview of and introduction to tort law in common law jurisdictions:

Conversion is an intentional tort consisting of "taking with the intent of exercising over the chattel an ownership inconsistent with the real owner's right of possession". In England and Wales, it is a tort of strict liability. Its equivalents in criminal law include larceny or theft and criminal conversion. In those jurisdictions that recognise it, criminal conversion is a lesser crime than theft/larceny.

Sioux City & Pacific Railroad Co. v. Stout, 84 U.S. 657 (1873), was a case decided by the Supreme Court of the United States that first enunciated the idea that a landowner could be liable for the injuries of a child trespasser.

United Zinc & Chemical Co. v. Britt, 258 U.S. 268 (1922), was a case decided by the Supreme Court of the United States that limited liability for landowners regarding injuries to child trespassers.

<span class="mw-page-title-main">Eggshell skull</span> Legal principle

The eggshell rule is a well-established legal doctrine in common law, used in some tort law systems, with a similar doctrine applicable to criminal law. The rule states that, in a tort case, the unexpected frailty of the injured person is not a valid defense to the seriousness of any injury caused to them.

<i>CompuServe Inc. v. Cyber Promotions, Inc.</i>

CompuServe Inc. v. Cyber Promotions, Inc. was a ruling by the United States District Court for the Southern District of Ohio in 1997 that set an early precedent for granting online service providers the right to prevent commercial enterprises from sending unsolicited email advertising – also known as spam – to its subscribers. It was one of the first cases to apply United States tort law to restrict spamming on computer networks. The court held that Cyber Promotions' intentional use of CompuServe's proprietary servers to send unsolicited email was an actionable trespass to chattels and granted a preliminary injunction preventing the spammer from sending unsolicited advertisements to any email address maintained by CompuServe.

References

  1. 1 2 Cotten, Doyice; Wolohan, John T. (2003). Law for Recreation and Sport Managers. Kendall/Hunt Publishing Company. pp. 208–. ISBN   9780787299682 . Retrieved 9 November 2014.
  2. ↑ Holland V. Baltimore & Ohio Railroad Co. 431 A.2d 597 (D.C. 1981).
  3. ↑ Aderman, Louis B. (April 1937). "The Attractive Nuisance Doctrine with Emphasis Upon Its Application in Wisconsin". Marquette Law Review. 21 (3): 116.
  4. ↑ Bolden, Robert F. (Winter 1950–1951). "Elements of Attractive Nuisance". Marquette Law Review. 34 (3): 197.
  5. ↑ Gurwin, David A. (1985). "The Restatement's Attractive Nuisance Doctrine: An Attractive Alternative for Ohio" (PDF). Ohio State Law Journal. 46 (1): 138.
  6. ↑ Hughes, Graham (March 1959). "Duties to Trespassers: A Comparative Survey and Revaluation". Yale Law Journal. 68 (4): 664. doi:10.2307/794397. JSTOR   794397.
  7. ↑ "Tolbert v. Gulsby". Casemine. Retrieved 2022-03-02.
  8. ↑ "Spur Feeding Co. v. Fernandez". Caselaw Access Project. Retrieved 2022-04-04.
  9. ↑ "Louisville N. R. Co. v. Vaughn". Court Listener. Retrieved 2022-04-04.
  10. ↑ "Gimmestad v. Rose Brothers Co. Inc". Court Listener. Retrieved 2022-03-02.
  11. ↑ "Johnson v. Clement F. Sculley Construction Co". Casetext. Retrieved 2022-03-02.
  12. ↑ "Anderson ex rel. Anderson v. Cahill". Caselaw Access Project. Retrieved 2022-03-02.
  13. ↑ "Simmel v. NJ Coop Co". Court Listener. Retrieved 2022-03-02.
  14. ↑ "Carmona v. Hagerman Irrigation Co". FindLaw. Retrieved 2022-07-28.
  15. ↑ "Dean v. Wilson Construction Company". Leagle. Retrieved 2022-03-23.
  16. ↑ Text of opinion from Ohio Supreme Court's web site
  17. ↑ "Thompson v. Reading Co". Casemine. Retrieved 2022-03-02.
  18. ↑ "Henson v. Int. Paper". Casetext. Retrieved 2022-03-01.
  19. ↑ Text of opinion from Utah Supreme Court's web site
  20. ↑ "Metropolitan Government of Nashville v. Counts". Justia. Retrieved 2022-04-04.
  21. ↑ "Texas Utilities Elec. Co. v. Timmons, 947 SW 2d 191 - Tex: Supreme Court 1997". Google Scholar. Supreme Court of Texas. Retrieved 15 December 2020.
  22. ↑ "Text of opinion from Wyoming State Law Library". Archived from the original on 2004-12-13. Retrieved 2009-10-18.
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