Children on Property – Attractive Nuisance

Florida premises liability law generally seeks to hold property owners immune from damages for injuries suffered by trespassers, aside from those induced by willful or wanton acts. There is one key exception, however: young children.

Veteran premises liability attorneys at Associates and Bruce L. Scheiner, Attorneys for the Injured, know that this stems from the recognition that because of their youth and immaturity, children lack the understanding or appreciation of certain dangers. In premises liability law, this principle is referred to as the “attractive nuisance doctrine,” and Florida is one of many states that adhere to it.

Essentially, the common law duty owed by a property owner to a child trespasser is sometimes different than what is owed to an adult trespasser, as noted in Florida Statute 768.075. In general, a property owner who fails to guard against a dangerous condition that attracted a child onto a property can be held liable for injuries that resulted.

The doctrine generally only applies in situations when the presence of young children is reasonably anticipated, and when measures to protect children can be implemented without placing an unreasonable burden on the property owner.

Florida courts weighing an attractive nuisance claim will consider whether the child was attracted onto the property by an instrumentality, usually a machine, appliance, swimming pool or some other item – natural or man-made – that is dangerous to them, but because of their youth, they are unable to understand that danger.

Florida Statute 823.08 specifically indicates the following abandoned or discarded items as attractive nuisances to children:

• Iceboxes;
• Refrigerators;
• Deep-freeze lockers;
• Washer;
• Dryer;
• Similar airtight units from which the doors have not been removed.

Attractive nuisances, however, are not limited to this list. In Florida, swimming pools are one of the most common attractive nuisances, which is why legislators have required property owners to install certain protections, per Florida Statute 514.0315 (for public pool owners) and Florida Statute 515.27 (for residential pool owners).

Other potential attractive nuisances might include trampolines, lawn tractors or unattended power tools that are left open and visible in the property owner’s yard.

In determining potential liability, courts have leaned on the reasoning of the 1954 Florida Supreme Court case of Carter v. Livesay Window Co. Inc. In that case, a 4-year-old died after a precast concrete window frame fell on him while he was playing in and around a home under construction. The subcontractor had put the frame in position prior to the end of a Friday and left it there, knowing no crew members would be on site that day. However, the child entered the property and pulled one of the frames on top of himself.

The state high court held that whether the child was trespassing was not material to the question of liability. The applicable test was instead whether a reasonably prudent person should have anticipated the presence of children where there was an inherently dangerous condition or dangerous instrumentality. This particular job was in a residential neighborhood, and the court noted, “It is common knowledge that children are as prone to play around houses under construction as monkeys are prone to climb trees.”

The general test of whether the attractive nuisance doctrine is applicable is as follows:

• A condition or instrumentality existed on site that was dangerous and likely or probable to cause injury to those who came in contact with it;
• The condition was attractive or enticing to young children;
• The child was incapable, due to his age, of understanding the danger involved;
• The condition was left unguarded and exposed at a place where young children might go for play, amusement or to satisfy youthful curiosity;
• The burden to eliminate the risk was slight in comparison to the risk posed to children.

The standard for determining whether a child is incapable of understanding the risk was outlined in the 1966 Florida Supreme Court case of Idzi v. Hobbs. There, the court held a child’s age is only one factor to be considered in determining the applicability of the attractive nuisance doctrine. Others include maturity, intelligence and capacity.

Further, the court concluded that just because a child received warning about a particular danger (in that case, fire) “does not necessarily mean that he realized the risk involved.” Therefore, a child can only be expected to conform to a standard of conduct reasonably expected for someone of his age, intelligence and experience under like circumstances.

At Associates and Bruce L. Scheiner, Attorneys for the Injured, our personal injury attorneys are committed to assuring that child victims and their parents are well represented in the wake of serious injury.

If you or a loved one has been injured in Southwest Florida, contact Associates and Bruce L. Scheiner, Attorneys for the Injured, for a free and confidential consultation to discuss your rights. There are no fees or costs unless we win. Offices in Fort Myers, Cape Coral, Naples and Port Charlotte.