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Personal Injury Law and the Attractive Nuisance

Personal injury law and the attractive nuisance

Attractive nuisance is a doctrine applied in tort law that acts as a defense to trespass by children. The doctrine of attractive nuisance is based on the premise that someone who maintains a dangerous condition which is likely to attract children on their property is under a duty to post a warning or take affirmative action to protect children from the dangers of that attraction. It imposes a duty on the property owner to be mindful of potentially dangerous conditions which are likely to attract children. The attractive nuisance doctrine generally does not apply to adults. However, if a child is in danger because of an attractive nuisance and an adult attempts to rescue that child, the attractive nuisance doctrine may hold the landowner responsible for the rescuer’s injuries in addition to the child’s injuries.

The attractive nuisance doctrine came about as an exception to the general rule that property owners have no duty to protect someone who is trespassing on their land from harm. However, something like a swimming pool can be an irresistible attraction to a young child. For the doctrine to apply, the property owner must have created the dangerous condition. For example, a lake would not be considered an attractive nuisance.

A property owner’s liability under the attractive nuisance doctrine is determined by several factors. Generally, a plaintiff has to show the following:

  • the property owner knew or had reason to know that children were likely to trespass onto the property
  • the property owner knew or had reason to know that there existed on the property an unreasonably dangerous condition that could cause death or serious bodily harm
  • that children would be unable to discover or appreciate the risk posed by the dangerous condition
  • that the utility of maintaining the condition and the burden of eliminating it altogether are less than the potential risk to children
  • that the defendant failed to reasonably care for and maintain safe conditions on the property

Nevada state law essentially follows the above 5 elements.

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