attractive nuisance

Question 1

what is attractive nuisance?

Answer 1

a form of landowner negligence liability to a plaintiff-trespasser who is a minor. The conjunctive elements of the doctrine supersede the standard-of-care test for trespasser liability.

Question 2

The age of child- do not discover cuz of youth

Answer 2

State statutes may specify the maximum age of the child-plaintiff who may take advantage of the doctrine, e.g. 14. Regardless, though, note that element (c) effects a sliding scale where the older the child, the less likely he or she will be able to take advantage of the doctrine.

Question 3

elements

Answer 3

0) (preconditions) a child-trespasser-pl. enters on def.’s real property, and thereon encounters a highly dangerous and artificial condition;
(1) as to the place, the landowner knows or has reason to know that children are likely to trespass there;
(2) as to the condition, the landowner knows or has reason to know of an unreasonable death-risk with which children are likely to meddle;
(3) the children do not discover the risk because of their youth, and they do not realize the risk of entering into the dangerous area;
(4) the utility of the condition and the burden of eliminating the risk are outweighed by the high risk of the condition to children;
AND
(5) landowner fails to exercise reasonable care to make safe or warn.

Question 4

majority rule

Answer 4

condition must be artificial, according to majority rule. Water and fire are not artificial conditions, even if they collected or initiated by artificial means.

Question 5

must the dangerous condition be what attracted child to property?

Answer 5

NO

Question 6

where the test requires “knows or has reason to know”

Answer 6

imposing no duty of investigation to ascertain facts not subjectively known already.

Question 7

(3) the children do not discover the risk because of their youth, and they do not realize the risk of entering into the dangerous area

Answer 7

is stated as a subjective test, but that element’s variability with the age of the child hints at an objective “check”–we might readily disbelieve the 14-year-old who claims to have been ignorant of the danger of a blasting cartridge, if we conclude that the ordinary 14-year-old would have been better informed

Question 8

mass

Answer 8

MASSACHUSETTS courts long refused to recognize attractive nuisance at common law. However, the legislature adopted attractive nuisance by statute, MA ST 231 s 85Q, in 1977. The statute tracks the multistate approach. The Commonwealth furthermore allows a defendant in attractive nuisance to plead comparative fault