Summary: “Attractive nuisance” is a term well known within the insurance industry; it is something hazardous that is tempting and can be harmful to children. It is something that would draw children into an unfenced yard because the object looks like fun or is fascinating, something a child might want to investigate. Many homeowners overlook or are unaware of this risk of items commonly found in backyards throughout the country, although carriers are well aware of this issue.

Topics:
Introduction
Trampolines
Swimming pools
Playground equipment
Appliances
Abandoned cars
Construction debris

Introduction

Before we get to attractive nuisances, we need to talk about duties owed to trespassers on an insured's property. The general rule is that a landowner owes no duty to a trespasser other than to refrain from causing willful and wanton injury. If a landowner has a fish pond on the property, he has no duty to warn trespassers of the pond, that he has dug a row of holes to plant trees in but tired out before getting the trees planted, or of any other hazard on the property. This makes sense, since a trespasser is someone who has gone onto someone's land without permission. That is all well and good when applied to adults; however, when it comes to children, things differ.

In R.R. Co. v. Stout, 84 U.S. 657 (U.S. 1874), a six-year-old child and some friends wandered over to a railroad turntable near the neighborhood. Two of the children had played there before while one had not. They had been told not to play there by an employee of the company, but the employee had not reported the incident to those in charge of the turntable. As the boys tried to move the turntable, the foot of one boy got stuck between the rails and was crushed. This boy had not played at the turntable before. The parents sued the railroad company, who in its defense stated that the parents or the child himself was negligent, but the company was not. The court found that the turntable was a dangerous machine and that children cannot be judged the same as adults. The family was awarded $7,500. The court held that the company knowing children played on the turntable was sufficient to establish liability, even though the children were technically trespassers.

The doctrine of attractive nuisance is that instrumentalities that lure or attract children of tender years are equivalent to invitations for the children to play on the dangerous item. The elements of the doctrine are that a condition exists that is dangerous in and of itself and would cause harm to those coming in contact with it, that the condition or item is attractive to children, that the children are incapable of understanding the inherent danger therein, that the item or condition was left exposed in an area that children were accustomed to play or satisfy their curiosity, and that the injury could have been prevented without inhibiting the use of the item or condition. Basically, an attractive nuisance is something that attracts children's curiosity, yet can cause them harm if they explore or play on it.

Trampolines

Trampolines are often used as a prime example of an attractive nuisance. They are large and fun, and there are even trampoline parks now where people can bounce from one trampoline to another to another. However, the space is enclosed and the spaces between trampolines is padded, as are the walls. Facilities require participants to sign a waiver acknowledging the risk of injury or even death, and it includes a hold harmless agreement for the facility.

A trampoline in a backyard is a different story; it is an enormous risk. Even with netting surrounding the trampoline, safety is a huge issue and the risk of serious injury is possible. Years ago trampolines were used in gym classes with students spotting each other and seen as fun backyard equipment. The American Academy of Pediatrics states that common injuries include broken bones, some of which may require surgery, sprains, concussions, head and neck injuries that can lead to permanent paralysis. Injuries are commonly caused by landing wrong while jumping, or performing flips or somersaults or other stunts, and hitting another person and falling off the trampoline.

While some trampolines are surrounded by netting, there are many photos on the Internet of people jumping above the net, so they may provide a false sense of security. The Academy recommends that mini and full-sized trampolines never be used at home, in gym classes, or on playgrounds. They should be limited to supervised training programs for gymnastics, diving, or other competitive sports, and only one person should be on the equipment at any given time. Statistics show that as many as 92,000 emergency room visits are due to injuries from trampolines.

The Academy recommends that if an individual is going to have a trampoline, that there be adult supervision at all times, only one jumper on the equipment at a time, no somersaults are allowed, adequate protective padding is in place and that the trampoline is in good condition and placed in a safe location in the yard. Remember however that the Academy recommends not having one at home.

Because of these risks, insurance companies strongly frown on trampolines. Few are deliberately fenced the way pools are, so any child can wander into the yard and get on the equipment. Owners generally are not giving safety briefings before use and may not maintain the equipment the way it should be. The risk of injury, and even paralysis, is enormous, and the homeowner has a huge liability exposure. Carriers do not want to accept the risks inherent with an unattended trampoline open for anyone to wander by and use. Many carriers will not write a property if a trampoline is on premises due to the high risk of injuries.

Swimming Pools

Swimming pools are another classic attractive nuisance. Most children love to play in water, but it is exceedingly dangerous. Drowning is the number one cause of death for children between the ages of one to four according to the Centers for Disease Control (CDC). The annual average of drownings is 390 for children up to fourteen-years-old, with 66 percent of those deaths children under five. Seventy-five percent of deaths occur at a residence, with fifty-eight occurring in in-ground pools. On top of deaths, 4,900 pool- and spa-related drowning injuries occur annually. In addition, most children were being supervised by parents when the accidents happened. The children had last been seen in the house, on the patio, in the yard, or near the pool. Sixty-nine percent were not expected to be at or in the pool but were found in the water, and most had been missing five minutes or less.

Carriers are adverse to swimming pools as well as trampolines. However there are ways to safely maintain a pool and insurance coverage. Carriers generally require locking fences of certain heights to surround the pool so that no one can enter without authorized access. If the pool is in an unfenced backyard, a carrier may deny coverage; with proper protection, coverage may be granted.

There are number of safety measures that can be taken to help lessen the risk of an accident at the pool. Many insureds use pool alarms, although carriers will still require a fence—an alarm that sounds when no one is around does not save a life. Alarms may react to motion, water displacement, or wave action. Some sound an alarm both at the pool and inside the house. Some alarms will sound when someone opens a gate to access the pool or removes the pool cover. Some alarms sound when removed from the pool so the owner knows if someone is tampering with the pool. Some states require pool alarms on pools without an automatic cover. Some pool covers are locking. Wristbands are available that can be put on children that sound an alarm when it gets wet, so a parent knows a child has entered the pool. There are underwater sonar alarms that are less apt to sound false alarms due to wind, and they detect items entering the pool starting at fifteen pounds. However, even with alarms, carriers will require a fence in order for the pool to be insurable. States may also require fencing around backyard pools.

In a 2001 Ohio case the child of a neighbor crawled through a hole in the fence and fell into the neighbor's pool that was partly filled with rainwater. While the son was drowning the mother jumped in to save him, but they both drowned. The estate sued, and the court found for the pool owner. After appealing, the court found that an attractive nuisance existed and a different duty of care was owed to children. The case is Bennett v. Stanley, 748 N.E.2d 41 (Ohio 2001).

Along with swimming pools, ponds and fountains pose similar hazards. A child can drown in a small amount of water, and a pond with fish or a fountain splashing water are attractive to children, especially on hot summer days. However, it is not practical to require a fence around a fountain as it is supposed to be seen, although it is still a hazard.

Playground Equipment

Since playground equipment is designed for children, the natural tendency is to think it is safe. However, that is not necessarily the case. More than 200,000 children end up in the emergency room due to injuries from playgrounds. Children can readily fall off the equipment and receive a concussion, sprain, broken bone, or even death from hanging. Some of the worst falls occur from swings. More than half of playground deaths occur on play sets in the backyard. If the equipment is not properly maintained, injuries are even more apt to happen. While most injuries related to playground equipment occur in public parks or other settings, 22 percent occur on equipment designed for home use. Swings cause the most injuries from play sets at home.

Play sets should always be anchored firmly to the ground. Children like to swing high, and while they may think it is fun to make the supports lift off the ground, it is exceedingly dangerous. A play set not firmly anchored to the ground is more likely to tip over and cause injuries.

Swings should be spaced two feet apart. Rope swings and ropes hanging from the set are particularly dangerous. Children's drawstrings or belts on clothing may get caught in the equipment as well. Ladders should have rungs spaced far enough apart that children's heads cannot be caught. A foot of mulch, wood chips, or shredded rubber should be under the play set in order to break falls.

Related to playground equipment are skateboard ramps and tree houses. Skateboard ramps are often readily accessible since they are sizeable and may not be fenced in. They are also solid surfaces, more likely to cause scrapes and serious injury if a child falls and lands on wood or nearby concrete. Tree houses are likely to lead to fall injuries, especially if the access to the house is not particularly sturdy.

Appliances

One would think it highly unlikely for a child to encounter old appliances such as refrigerators, but it can still happen. In the 1950s if a child got into an abandoned refrigerator he could not get out; the doors only opened from the outside. Between 1956 and 1964 there were 163 refrigerator deaths reported. Between 1960 and 1981 there were eighty-four refrigerator deaths. In 1956 the Refrigerator Safety Act was passed and required a change in the way refrigerator doors stay shut. A magnetic mechanism is now used instead of a latch, so that if a child gets into a newer refrigerator he can push on the door and get out. However, if a nonworking refrigerator is anywhere someone can access it the door should be removed in order to avoid any mishap.

Refrigerators are not the only dangerous appliance. Freezers, clothes dryers, combination washer/dryer units, picnic coolers, and ice boxes in campers are all dangerous products that a child can crawl into and be suffocated. These items should never be left where a child can crawl into them and suffocate. Many states have regulations that doors be removed from refrigerators that are no longer in use.

Abandoned Cars

While not attractive to the neighbors, there are people with old cars on the property that fall into the category of attractive nuisance. They could be hobbyists restoring old vehicles or simply repairing vehicles on the side. At any rate, an unattended vehicle can be an interesting object to a child. Older vehicles may have unique body styles a child finds interesting, and the child may get trapped in the trunk or hurt some other way. A child could accidently set the vehicle in motion and then be caught under the wheels. Any car on premises should have all doors hatches, windows, and trunks closed and locked at all times.

Construction Debris

If an insured is remodeling or adding on to the house or even simply replacing the roof, the construction debris can be fascinating and a hazard to children. Children do not often get to see such materials in raw form and can find them fascinating but can be injured by roof nails, bricks, lumber, or anything used in construction that is being prepared for use or has been removed from the house and is being disposed of. Such material or debris should be kept in a dumpster if possible or covered with a tarp with warnings on it.

Summary

The items discussed in this article are not the only attractive nuisances, although they are among the most common. Anything that would pique a child's curiosity enough that he comes onto the property to investigate it can become an attractive nuisance if injury is possible. A dog in a fenced in yard can be an attractive nuisance. A child could easily come up to the fence and put his fingers through, resulting in a dog bite. In that situation a fence, unless it is made of boards that cannot be breached, does no good. Beware of Dog signs provide a warning and remove some of the liability from the insured as the sign warns others of danger.

Tools left in the yard while an insured is taking a break indoors can be hazardous. Saws, hammers, ladders, drills, and other power tools are interesting, and a curious child may want to see how it works or play with it pretending it is something else. Any of these items can cause injury when used improperly. Even gazebos, rock gardens, tire swings, and other common backyard items can be an attractive nuisance. Agents need to bear this in mind when talking to potential applicants and be sure to advise them of any possible hazards.