It's no secret that any time a law firm discusses a tragic event in the news, people will invariably accuse that firm of attempting to profit from a tragedy. However, when the reaction of most people is that "the victim's family is going to make a ton of money," it illustrates a lack of knowledge about how our system works that can partially be blamed on the reluctance of those who know about the law to speak up about how it works.
At the end of the day, those who work in the legal field face a choice: Share what they know even though it may come off sounding crass, or keep silent and let ignorance of the law persist. When we choose to remain silent, we obfuscate the very law that is designed to allow people to seek justice. Over time--and I think you can see it with the vast majority of people in our country--the law becomes mythical and unapproachable, instead of being an instrument of ordered liberty it is intended to be.
With that said, it is never more difficult to discuss the law as when its topic is the death of a child. In the aftermath of a recent incident where it appears that a child lost his life due to a dangerous property, one of the officers on the scene summed up the tragedy by saying that the accident was "Just very tragic...I simply think he lost sight of his parents and panicked, and found himself in that situation. A small child doesn't know what to do in those moments." While I doubt applicable laws were even on his mind at the time, the officer's feelings perfectly sum up why we have a legal doctrine known as Attractive-Nuisance Doctrine.
*Note: Premises liability law, like many others, differs significantly from state to state. Georgia law varies in some elements from Texas law, which is more my purview. Because of this, I'll relate a few of the unfortunate details of the Atlanta incident for context, but I'll be discussing Attractive-Nuisance Doctrine through the lens of Texas law, even though it would not apply specifically to the case at hand.
Atlanta, GA: April 14, 2017
5-year-old Charlie Holt was visiting Atlanta with his family on Friday when they decided to eat at the Sun Dial rotating restaurant, situated on the top floor of the Westin Peachtree Plaza Hotel. The restaurant rotates slowly as patrons dine, affording a 360 degree panorama of the city; it is a popular tourist attraction.
Authorities say that young Charlie had wandered away from his table, playing during the restaurant's lunch hours. At some point, Charlie's head became stuck between the edge of the restaurant's rotating floor and its outermost wall. Unable to escape, Charlie suffered a serious cranial injury as the restaurant continued to move. As soon as the staff realized the situation, several attempted to rescue him while one manually stopped the floor's rotation, but regrettably their efforts were in vain. Charlie died of his injuries a short while later at a nearby hospital.
Premises Liability Law and the Attractive Nuisance Doctrine
If we recall the Atlanta police officers statement for a moment and focus on his statement that "A small child just doesn't know what to do in those moments," we have the genesis of Attractive Nuisance Doctrine.
By virtually every legal standard in Texas, small children cannot be considered liable for negligence. They are young and impressionable, and may not know enough about a given situation to make good decisions. Many laws are crafted to protect them based on this naïveté, including Attractive Nuisance Doctrine.
In essence, an argument for Attractive Nuisance claims that something on the defendant's premises was interesting enough to catch the eye, and therefore the interest, of a minor. The attraction is understood to be inherently dangerous, but is not adequately safeguarded against curious children. In such an event, a child might be expected to go investigate the hazardous element, which can cause serious injury.
Pools, lawnmowers, and even trains are all things that excite the curiosity of small children who cannot appreciate their dangers. That is why we expect people to have fencing around pools, so that kids can't just wander close to them and fall in. It's also way we expect people to keep dangerous tools and machinery like lawnmowers secured in a shed or garage and not strewn across their property. Protecting children is also why most train-yards are fenced off. In short, if something is dangerous, but likely to be of interest to a child, measures have to be taken to safeguard inquisitive young minds from harm.
Much of the precedent for Attractive Nuisance Doctrine can be found in the resolutions of several cases in which children were injured or killed by large attractions on various premises. One such case is Texas Utilities Electric Company v. Timmons, in which a young teen tried to climb a 90-foot electric tower on company-owned property. Despite its being surrounded by a large barricade topped by barbed wire, children found a way to enter the enclosure and would occasionally play on the tower. Young Billy Byrum was engaged in such activity when he climbed too close to the live wires at the top, allowing a large current of electricity to arc into his body. He fell from the tower and died.
From cases like Timmons, specific elements were gradually refined into the requirements for a valid Attractive Nuisance argument. Per O'Connor's Texas Causes of Action, those requirements look like this:
- The plaintiff, a child, trespassed on the premises (i.e., the child entered the defendant's land without the defendant's knowledge and for the child's own benefit.)
- The defendant was the possessor of the premises.
- The defendant knew or should have known there was an artificial condition on the premises.
- The defendant knew or should have known that children were likely to trespass in the area around the artificial condition.
- The defendant knew or should have known the artificial condition posed an unreasonable risk of death or serious bodily harm to children.
- The plaintiff, because of her youth, did not discover the artificial condition, realize the risk involved in meddling with it, or realize the risk involved in coming within the area made dangerous by the condition.
- The utility to the defendant of maintaining the artificial condition and the burden of eliminating the danger were slight as compared with the risk to children.
- The defendant did not exercise reasonable care to eliminate the danger or otherwise protect the plaintiff.
- The defendant's breach proximately caused the plaintiff's injury.
An astute reader would note that under Texas law, the death in Atlanta would likely not fall within the parameters of Attractive Nuisance litigation. As paying patrons of the Sun Dial restaurant, the Hunt family would legally be considered invitees of the business. Invitees are given the most protection under premises liability law. Property owners have a duty to seek out and remedy any dangerous condition on the property. For example, this is why retail and restaurant locations quickly clean up spills and then place the ubiquitous "wet floor" sign to alert customers of a potential danger.
Attractive Nuisance relates primarily to instances where children trespass onto properties with dangerous materials on them, like construction sites. Since they were not trespassing upon the property and the restaurant could not reasonably have anticipated the circumstances of the accident (thereby prompting them to take relevant precautions), this theory of liability does not appear to apply as Texas courts interpret it.
One other crucial aspect of Attractive Nuisance Doctrine is that the dangerous condition has to be artificial, or man-made. So while trees may be attractive to children and entice them to trespass on to a property in order to climb one, trees are not artificial and would fail to meet that requirement for Attractive Nuisance to apply.
Why Attractive Nuisance Doctrine is So Important
Some might consider this branch of legal doctrine an unnecessary complication to premises liability, or a method to punish honest business owners whose premises were trespassed upon. Such doubters mistakenly believe that children should be held to the same standard of care that society applies to adults. The old adage about only needing to burn yourself once on a hot stove applies in a broader sense to the entire world--we require more of adults because they've had time to make mistakes and learn from them. A child doesn't implicitly know everything about safety and self-preservation; that innocence in the face of danger is one of the things that makes parenting so maddening.
That statement sums up the need for Attractive Nuisance Doctrine. The law strives to protect children from experiencing some of the worst the world has to offer, because they don't know enough to avoid those pitfalls on their own. A 90-foot utility tower, a construction site, and even the dining area of a popular tourist attraction can all look like playgrounds to boisterous children. Parents try hard to keep their kids safe from possible harm, but property owners must do what they can to safeguard these places--especially for times that a child might elude supervision for even a short while.
There is a reason that we don't let children vote, drive cars, or serve in the military. We recognize that they lack the judgement to perform these activities. While some may view Attractive Nuisance Doctrine as carving out special protections for children, its real purpose is to harmonize what the rest of the law already says about kids--namely, that they lack the judgment to be held fully accountable for their actions. As the officer so succinctly put it, "A small child just doesn't know what to do in those moments."