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Landowner's Liability - the Attractive Nuisance Doctrine

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If a child is injured while trespassing on your property, are you responsible for paying the medical bills? 

The answer is: Yes, you could possibly be responsible for paying medical bills

The Ohio Supreme Court adopted the “attractive nuisance doctrine” in 2001. The doctrine states that a landowner may be held liable for injuries to children trespassing on their land if the injury is caused by a hazardous object or condition that is likely to attract children who are unable to appreciate the risk.  The law is intended to protect trespassing children from dangers that, due to their youth, they cannot understand. 

The attractive nuisance doctrine will expose tenants and other possessors of land to liability as well as landowners.  Ohio was the 47th state to implement such a doctrine.

The case involved the death of a five-year-old boy in a neighbors’ swimming pool.  The neighbors failed to maintain their pool.  It became pond-like and contained tadpoles and frogs. There were no ladders in the pool and the sides were slippery with algae.  The neighbors also removed fences from two sides of the pool.  One day, the boy entered the neighbors’ property without permission.  He fell into the pool looking for frogs.  His mother attempted to rescue him. Tragically, they both drowned. 
 
In adopting the attractive nuisance doctrine, the Ohio Supreme Court noted that the neighbors knew the boy was often unsupervised and came to their property in the past. The neighbors would be liable under the doctrine if they created a dangerous condition by negligently maintaining the pool and if they reasonably should have known that the pool posed an unreasonable risk of serious harm to children.  It stated that young children are entitled to a degree of care “proportioned to their inability to foresee and avoid the perils that they may encounter.”
 

While the attractive nuisance doctrine does not ordinarily apply to adults, the Court held that an adult may seek damages for injuries suffered when rescuing a child from a danger created by the owner’s negligence. 

The attractive nuisance doctrine is meant to balance society's interest in protecting children with the rights of landowners to enjoy their property.  Even when a landowner is found to have an attractive nuisance on his or her land, the landowner does not automatically become liable for the injury of a trespassing child.  Further, it does not extend to those conditions which children know pose an obvious danger.
 
The doctrine will impose liability only if: 
  1. there is an artificial condition on the property (which could include abandoned cars, swimming pools, play equipment, hot tubs, ramps, machinery, electric fences, water wells);
  2. the artificial condition could pose an unreasonable risk of death or serious bodily of harm to children;
  3. the landowner knew or had reason to know that children are likely to trespass and that, because of their youth, they could not discover or appreciate the risk involved;
  4. the benefit to the landowner of keeping the condition is slight when compared with the risk to children; and,
  5. the landowner failed to exercise reasonable care to eliminate the danger or otherwise protect children.
In the decision, Ohio Supreme Court Justice Pfeifer wrote “Despite our societal changes, children are still children. They still learn through their curiosity. They still have developing senses of judgment. They still do not always appreciate the danger. They still need protection by adults.”
If you are aware of children trespassing on your land, it is important to contact law enforcement or consult with a trusted attorney to discuss the best procedure to remedy the situation.  Simply putting up warning signs may not protect you if the child is too young to read.

Without taking the proper precautions, you may find yourself paying the medical bills of young, uninvited “guests.”  

The good news is that beneficiaries will not inherit the decedent’s debt unless they have personally agreed to pay it.  Before you become involved with an insolvent estate, it is important to consult with a trusted probate attorney to provide guidance.Contact an Attorney in Medina, Ohio

Have legal questions? The experienced attorneys in Medina, Ohio at Laribee & Hertrick, LLP are ready to assist you.
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