This is not dating advice. In fact, despite having one of the more amusing names in legal literature, attractive nuisances have had some very unfunny consequences. Every homeowner and every parent should take a moment to consider the long-standing and important legal doctrine of the attractive nuisance.
The world's most dangerous merry-go-rounds
The idea of the “attractive nuisance” came to the United States in the 1870s with cases involving the way railway cars were turned around to face the way they came. A merry-go-round was built beneath the tracks and the car was just spun around 180 degrees.
Young people played on these “railway turntables” and horrendous injuries and deaths resulted. In an 1875 ruling, a Minnesota judge plainly laid out the principles still used in attractive nuisance cases today.
Although the injured children were trespassing and misusing the equipment, children are children and they will play with things that appeal to them. While the railroad company didn’t provide the turntables just to hurt children, they knew children loved the terribly dangerous equipment and did nothing to make it safer.
What courts look for in an attractive nuisance
When someone, frequently a child, is injured or killed on public or private property, courts may examine several questions to decide if an attractive nuisance was to blame.
- Did the hazard pose an unreasonable risk to people near it?
- Did the landowner have reason to know that people might be able to access the hazard?
- Can people, even children, be expected to understand the risk?
- Does the landowner really need the hazard and would it be unreasonable to expect the landowner to have eliminated the risk?
- Did the landowner take reasonable precautions to prevent harm to others?
No strict formula for how many or which of these questions is required to identify an attractive nuisance.
Not just for children anymore
The doctrine of the attractive nuisance has gradually become more common, and you’ll sometimes see it raised casually and where no injuries or children are involved.
The city council of Santa Barbara voted to have two fountains removed from the city’s downtown. Built in 2007, they were converted to planters in 2014, and have since been used illegally as garbage cans, toilets and skateboard ramps. An historic hotel on the same block argued that they had become an “attractive nuisance.”