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The attractive nuisance doctrine

On Behalf of | Dec 28, 2018 | Personal Injury

Parents in Toms River send their kids out to play each day with the hope that they will exercise sound judgment in all their actions. Depending on the age of a child, however, that expectation may be unrealistic. Young kids, in particular, can be especially curious, often only learning through experience. The trouble with this is that their curiosity may lead them into dangerous situations (whose risks they do not fully appreciate). 

The law has attempted to make up for this lack of understanding by creating the attractive nuisance doctrine. Per the Cornell Law School, this establishes the threat of liability for property owners whose lands contain potentially dangerous attractions if those property owners do not take adequate steps to protect kids from said attractions. This standard often holds true even in cases where a child may have come on to a property to investigate an attractive nuisance without permission. 

For many years, the state of New Jersey only imposed the standard that property owners held the same duty of care towards children that they did with adults (that being not to deliberately harm them when on their properties). However, a 1956 state Supreme Court ruling made the following observation: “Although the modern inclinations of teenagers and adults have become somewhat unpredictable, the natural propensities of children of tender years continue to be reasonably foreseeable. Their instincts have been too repeatedly observed over the ages to elude common knowledge.” With that opinion, state courts began to impose the attractive nuisance doctrine in situations where property owners made no attempt to protect kids from the features found on their lands. 

Protection typically means more than simply a written warning; a physical barrier limiting access is usually what is needed in order to avoid liability.