attractive nuisance Flashcards
what is attractive nuisance?
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.
The age of child- do not discover cuz of youth
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.
elements
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.
majority rule
condition must be artificial, according to majority rule. Water and fire are not artificial conditions, even if they collected or initiated by artificial means.
must the dangerous condition be what attracted child to property?
NO
where the test requires “knows or has reason to know”
imposing no duty of investigation to ascertain facts not subjectively known already.
(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
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
mass
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