Equine Law Blog

Avoiding the “Attractive Nuisance”

Are you held liable if a child trespasses onto your property and is injured?

Hazardous places, conditions, or things on the land that tend to lure unsuspecting children are commonly known as "attractive nuisances."  Attractive nuisances are typically not natural conditions of the land, such as a pond, but rather are conditions that were created by the landowner or someone else on the property.  Swimming pools are classic examples.  Depending on the circumstances and how the state defines an “attractive nuisance,” a horse might qualify.

Generally, people who harbor an "attractive nuisance" become liable when they fail to take reasonable measures to protect children from it.  From a facility's perspective, avoiding liability for attractive nuisances is particularly frustrating since children cannot read warning signs and can climb over or crawl under fences.

Some of the factors courts in Michigan frequently consider in evaluating attractive nuisance claims are: (1) the type of hazard on the property and whether the hazard poses an unreasonable risk of death or serious bodily harm to children; (2) whether the children, due to their youth, could appreciate the risk involved; (3) the extent to which the presence of trespassing children near the hazard was reasonably foreseeable to the landowner; (4) the utility to the landowner of maintaining the hazardous condition; and (5) how the burden of eliminating that hazard compares to the risk of harm involved.  Other states can differ.

Conclusion

1. Never assume that you are immune from liability because a child injured on your property was a “trespasser.”  The “attractive nuisance” doctrine is an exception to general principles protecting landowners from most liabilities involving trespassers.
2. Defending yourself against “attractive nuisance” claims can be particularly expensive.  Make sure you have proper liability insurance.
3. Never assume that your state’s equine activity liability act protects you from an “attractive nuisance” claim.  A young child who enters your pasture might not qualify as an “equine activity participant” under a state’s equine activity liability law (but check your law).

Seek legal help to protect yourself against these claims or to respond to them if they are brought against you.

Categories: Insurance, Liability