Attractive Nuisance Doctrine

The attractive nuisance doctrine modifies the traditional common law rule that landowners owe no duty of care to trespassers. Under this doctrine, a landowner may be liable for physical harm to trespassing children caused by an artificial condition on the land if certain requirements are met.

Under the Restatement (Second) of Torts Section 339, the landowner is subject to liability if: (1) the landowner knows or has reason to know that children are likely to trespass in the location of the condition; (2) the condition is one the landowner knows or should know involves an unreasonable risk of death or serious bodily harm to children; (3) the children, because of their youth, do not discover the condition or realize the risk involved; (4) the utility of maintaining the condition and the burden of eliminating the danger are slight compared to the risk to children; and (5) the landowner fails to exercise reasonable care to eliminate the danger or protect children.

The doctrine recognizes that children are fundamentally different from adults in their ability to appreciate danger. A child who sees an unfenced swimming pool, an abandoned refrigerator, or an open construction site may not understand the risks that would be obvious to an adult. The law places the burden on the landowner — who created or maintained the dangerous condition — rather than on the child.

The doctrine applies only to artificial conditions, not natural conditions of the land. Common examples include swimming pools, machinery, excavations, and rail yards. The "attraction" element is sometimes overstated — the doctrine does not require that the condition literally attracted the child to the property, only that the landowner should have foreseen that children might trespass.

On exams, attractive nuisance is triggered whenever a child is injured by a dangerous condition on someone else's property. The analysis should address each element of the Restatement test.