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Attractive Nuisance

On Behalf of | Feb 25, 2020 | Personal Injury

Attractive Nuisance

by Amy S. York, Esq.

When my daughter was about three years old, we took her to Disney World. We brought our trusty stroller, but she was in the “me walk” phase, so she spent a lot of time out of it as well.

She was little, she was quick, she was impulsive, and I was exhausted! She had this uncanny knack of running off just as I was finally at the head of the line to order our food so that I had to abandon my place in line to go chase her down. She could dart in and out of crowds much faster than I could and my heart would race not only from the chase but from the fear of her getting lost or hurt.

When my fabulous sister-in-law arrived a few days later to join us on vacation, she brought me a kid-leash. I admit, I used the kid-leash. It was glorious. (Note: Opinions may vary. My daughter probably didn’t think it was as terrific as I did.) I could prevent The Great Escape while in food line or ride line or just walking around!

Being a parent is tough and one of the reasons is simply that our kids are often too young to appreciate danger, have situational awareness, or possess enough self-control to avoid endangering themselves! But we can’t keep them on leashes all the time.

The Texas Supreme Court recognized this when it adopted the doctrine of attractive nuisance. Attractive nuisance is somewhat misnamed, as it has nothing to do with nuisance and does not require attraction.[1] Instead, the concept requires landowners to take extra precautions to protect trespassing tykes.

A trespasser is someone who comes on to your land uninvited.[2] Under normal conditions, your only duty to a trespasser is to avoid injuring him “willfully, wantonly, or through gross negligence.”[3] Where a child is involved, however, the rules change.

Under certain circumstances, a trespassing child may be considered an “invitee” instead of a trespasser.[4] Unlike the minimal duty owed to trespassers, landowners owe a greater duty to those they have invited: the landowner must take care to avoid unreasonable risks of harm that the landowner knows or should know exist on the property.[5]

Children[6] may be considered invitees instead of bare trespassers under certain circumstances – this is the doctrine of attractive nuisance. The doctrine applies where:

  • there exists an artificial condition upon the land;[7]
  • the landowner knows or should know that children are likely to trespass;
  • the landowner knows or should know and realizes or should realize that the condition involves an unreasonable risk of injury or death;
  • children, due to their youth, are unlikely to appreciate the danger;
  • the usefulness of the condition and burden of making it safe are small compared to the risk; and
  • the landowner fails to take appropriate measures to avoid the danger to children.[8]

A plaintiff must prove each element for the doctrine to apply[9] and seemingly similar cases can have very different results.[10]

[1] Robertson v. Centennial Properties of Austin, 392 S.W.2d 577, 579 (Tex. App. – Austin 1965, n.r.e.) (A condition’s particular attraction to children may tend to show that a landowner should have anticipated young trespassers, but is not necessary to prove a plaintiff’s case.).

[2] Brown v. Traditions Oil & Gas, LLC, No. 07-18-00242-CV, 2019 Tex. App. LEXIS 8324, at *4 (Tex. App. – Amarillo Sept. 13, 2019, pet. filed Oct. 29, 2019) (citing State v. Schumake, 199 S.W.3d 279, 285 (Tex. 2006)).

[3] Entergy Gulf States, Inc. v. Isom, 143 S.W.3d 486, 490 (Tex. App. – Beaumont 2004, pet. denied) (citing Tex. Utilities Elec. Co. v. Timmons, 947 S.W.2d 191 193 (Tex. 1997)).

[4] Brown, No. 07-18-00242-CV, 2019 Tex. App. LEXIS 8324, at *4.

[5] Id.

[6] The doctrine is commonly applied to children under the age of about fourteen, but may be applied to older children who lack the maturity or intellect of their peers. Soledad v. Lara, 762 S.W.2d 212 (Tex. App. – El Paso 1988, no pet.) (applying doctrine to incident involving 16-year-old due to child’s “mental deficiency and lack of discretion”); see also Massie v. Copeland, 233 S.W.2d 449, 327 (Tex. 1950) (regarding age ranges for application of doctrine).

[7] The doctrine does not apply to injuries due to natural or common conditions, such as domesticated animals, railroad trestles, and streams. Hall v. Edlefson, 498 S.W.2d 514, 516 (Tex. App. – Waco 1973) (Shetland pony); Brownfield v. Missouri P.R. Co., 794 S.W.2d 773 (Tex. App. – Houston [14th] 1990, rehearing overruled) (railroad trestle); Woolridge v. E. Tex. Baptist Univ., 154 S.W.3d 257 (Tex. App. – Texarkana 2005, rehearing overruled) (stream).

[8] Isom, 143 S.W.3d at 490-91 (Listing factors and noting that the facts of each case must be weighed to determine whether it is appropriate to shift responsibility for a child’s safety from the parents to strangers.).

[9] Stimpson v. Bartex Pipe Line Co., 36 S.W.2d 473, 476 (Tex. 1931) (“We think it a salutary rule which imposes the duty to guard a child of such immaturity as to be able to appreciate patent and unconcealed dangers upon the parent instead of the landowner.”).

[10] Montgomery Ward & Co. v. Ramirez, 127 S.W.2d 1034, 1035 (Tex. App. – San Antonio 1939) (doctrine applied to 11-year-old boy injured in wringers of gasoline-powered washing machine left running in store’s back lot); Brown, No. 07-18-00242-CV, 2019 Tex. App. LEXIS 8324, at *1 (doctrine did not apply to 11-year-old girl killed while riding pump jack like horse); Burk Royalty Co. v. Pace, 620 S.W.2d 882, 883-86 (Tex. App. – Tyler 1981, rehearing denied) (doctrine applied to young boy injured while riding pump jack like horse); Robertson, 392 S.W.2d at 586 (doctrine applied to drowning death of 8-year-old boy in man-made waterhole); .