Attractive Nuisance

Remember when we were kids? Carefree, playing in areas we would not dream of allowing our children to play in now.

When I myself was a child, 10-13, my buddies and I used to play in the construction areas, where new homes were being built, climbing to the top of the rough framed-out homes, getting the birds eye view, and acting tough. Should we have been doing that? No. Were we warned by our parents/aunts/uncles not to do this? Yes. Did we do it anyway? Yes

Why do kids, like I was 45-50 years ago, do stupid things like this (not to mention the other stupid things kids do, like underage drinking, or using drugs)? We have always known that kids do stupid things, but the science on the subject is still evolving, and has not fully developed. Here is an article from the University of Rochester (NY) Medical Center, summarizing some of that research. Here is another, more scholarly article on the subject, from the National Institutes of Health. In short, the science says that the human brain is not fully matured, until we reach our mid-20’s.

That is why the law in most states recognize the doctrine of “attractive nuisance”; the law recognizes that by virtue of their lesser maturity, children are drawn into unsafe situations, that adults would know not to get involved in.

Under the Michigan Supreme Court case of Rosario v City of Lansing, a landowner is liability for the harm caused by artificial conditions on their land, that are highly dangerous to trespassing children. This language from the Rosario decision, makes clear generally what Michigan law would describe as an “attractive nuisance”:

“Children, wherever they go, must be expected to act upon childish instincts and impulses; and others who are chargeable with a duty of care and caution towards them must calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken.”

OK. There’s a lot of legal mumbo-jumbo, but you want to know how is it that you are going to know whether your child was injured by an “attractive nuisance”?

In short, it will be a fact-specific, case by case matter. You will just have to speak with me, or with another attorney on the subject; however, make sure it is someone who has litigated and dealt with this issue previously.

Once the Plaintiff (the one suing for their child’s injuries) establishes an “attractive nuisance”, they must then prove each and every one of the following elements, in order to not be thrown out of court:
1. The possessor knows or has reason to know that children are likely to trespass on the place where the condition exists.

2. The possessor knows or has reason to know that the condition involves an unreasonable risk of death or serious bodily harm to such children.

3. The children, because of their youth, do not discover the condition or realize the risk involved.

4. The utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk to children that is involved.

5. The possessor fails to exercise reasonable care to eliminate the dangers or to otherwise protect the children.
(Michigan case law supporting this: Gilbert v Sabin, Murday v Bales Trucking, Inc,; see also Rand v Knapp Shoe Stores.)

The landowner need not have actual notice/knowledge that the child is trespassing; it is enough that the landowner knows that children are likely to trespass. Also, importantly, under Michigan law, a landowner who knows, or should know that there is a hazardous condition on his/her property cannot escape liability/responsibility by trying to shift blame to the child, for the child’s use of the property.

Two Real “Attractive Nuisance” Situations

Case No. 1

Some years ago, I represented the family of a 5 year-old child, whose eight fingertips (all but the thumbs) were sliced off on the cast iron wheel/guides, upon which a rolling gate would open and close. This gate was not controlled by remote/machine control, as many of these gates are, and were at the time. All one had to do, in order to open/close the particular gate involved in this case, would be to push the gate one way, or the other.

The neighborhood children, especially the younger ones, would ride the gate, as it rolled to the left or right, holding onto the gate. “Wheee!!” My client-child was holding onto the top of the gate, where it would roll under large thick cast iron guides. His fingers came under the guides and all eight fingertips were lost.

This particular gate was located on a property, which had frontage on a main street in the Detroit metro area; the gate was on the other, rear side of the property, which ran along a residential street. In other words, if one wanted to get into the parking lot, one would turn down the side street, take a left onto the residential street, and enter through the gate, on the residential street at the rear of this property, where my client was injured.

There was a school nearby, so the landowner could not claim he/she could not have foreseen the presence of children. A simple cheap metal guard could have been placed over each of the wheel-guides, that would not have obstructed the movement of the gate, but would have prevented a child’s fingers from getting caught in there. Certainly, children of my client’s (then) young age could not have begun to realize the danger posed by holding onto the gate, near the top, as my client tragically did.

I obtained a significant six-figure recovery for this trespassing child and his family.

Case No. 2

More recently, I represented the family of a nine year-old child, who was injured when he and his buddies entered an apartment gym complex; my client got onto a treadmill he did not know how to use, he fell, and sustained some minor injuries. In order to access the particular gym complex involved, one would have to walk past the main office for the apartment complex, suggesting that the management of the apartment complex should have been able to prevent youngsters from entering.

At the very least, the closeness of the apartment office to the gym, suggested some level of notice or knowledge; the management either knew that unsupervised kids were getting into a gym that had potentially dangerous workout machines, or management should have known this.

There was evidence that the apartment complex management had previously been more strict about keeping the gym door locked, but shortly before my client’s accident, they had let up on that restriction. In any event, the door was not locked on the date of my client’s injury, and his fellow 9-10 year-old buddies goaded him into getting on this treadmill, that he fell off of.

While Michigan law makes clear that a landowner cannot shift blame for an attractive nuisance to the child, the defense attorneys in my case did just that. While I knew this was a losing argument for them, I was more troubled by the weak “damages” evidence from my client’s doctor, who characterized the residual scarring/discoloration as minimal, and for which he never treated my client.
There was also an intervening accident, resulting in a much more significant and obvious scar; there was no doubt that this later event happened inside of the home, and accordingly, “there was no one else to blame”. My child-client’s parents’ silence on this other incident would not have played well in front of a jury; one would wonder why they made such a seemingly big deal out of a less serious claim (with a potentially responsible deep-pocketed third-party), while ignoring a more serious matter, when they had only themselves to blame.

There was also a “fault allocation” issue. Under Michigan law, fault is allocated “severally” and no longer “jointly and severally”. Under “joint and several liability”, if the acts of two or more wrongdoers combine to create one injury, then the injured person can collect as against any of those wrongdoers. This could be key, if one of the wrongdoers had most of the fault, but had no money and no insurance.

Under “several only liability”, a wrongdoer whose acts combine with those of someone else, to produce a single injury, is responsible only for that portion of the injury they caused. While that sounds intuitively fair, it leaves completely innocent injury victims without an avenue for compensation. Too bad, according to Michigan law.

In this case, my young client’s mother, was a single head of household; at the time of the accident, she was working to support her family, and had left her child (and two siblings) in the care of a adult, whom she thought to be responsible. The children got away from this adult, and that was when the accident happened.

In turn, this enabled the landowner and management company I was suing, to argue that there was an element of fault that was not theirs, no matter how unguarded the gym.

Between the weak damages case and the fault allocation issues, my client wisely instructed me to settle the matter, and I did so.

“Attractive Nuisance” cases are tough and complicated. Let me know if I can be of help, in any situation involving an injured youngster.