Premises Liability and Attractive Nuisance

There are various legal theories under which a property owner or possessor can be held liable for injuries occurring on their property.  This is generally called premises liability.  One theory of liability is simple negligence.  A property owner has a duty to maintain reasonably safe conditions for people coming onto the property.  The elements of negligence are:

• The defendant owes a duty to the plaintiff;
• The defendant breaches that duty;
• The defendant's breach caused the plaintiff's injury;
• The plaintiff was actually injured.

These basic elements of negligence can be applied to injuries occurring on both commercial and residential properties.  On commercial properties, property owners or possessors usually owe an even higher duty of care to their customers.  This is the basis of claims made against supermarkets when a customer slips on a wet floor and is injured.  It is also the basis of claims made against bars and other commercial venues when a patron is assaulted and there is inadequate security to protect them.  The degree of care owed depends in part on whether the injured plaintiff was an invitee, a licensee, or a trespasser.  However, even trespassers can be owed a duty of care.  One prime example of this is the attractive nuisance doctrine.

The Attractive Nuisance Doctrine

The attractive nuisance doctrine allows property owner/possessor to be held liable for injuries to children resulting from dangerous conditions on their land under the following circumstances:

• The property possessor knows or has reason to know that children are likely to trespass;
• The property possessor knows or should know that the condition could cause unreasonable risk of death or serious injury to such children;
• The children, because of their youth, do not discover the condition or realize the risk involved in intermeddling with it or entering the area made dangerous by the condition;
• The utility to the property possessor of maintaining the condition and the burden of eliminating the danger are slight as compared to the risk to children;
• The property possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children;

Usually, this applies to man-made features.  Swimming pools are a classic example, but septic tanks like the one in which a young Arizona boy was killed also qualify.  Septic tanks may be abandoned or under repair, but precautions must be taken to ensure that they are safe.  An unsecured board loosely covering an open tank just doesn't cut it.  Septic tanks are especially hazardous because they are unsanitary, contain dangerous chemicals and gasses, and can collapse.  Falling into a septic tank can easily be fatal for humans or animals.

No child should be injured or killed in so a horrific manner as falling into a septic tank, or any other dangerous condition for that matter, particularly when it would have been so easy to seal or secure.  Unfortunately, people are not always thoughtful or careful and terrible accidents happen.  This is why homeowners have homeowners insurance policies and commercial establishments have commercial insurance policies.  Although no amount of money can ever compensate someone for a life changing injury or the loss of a loved one, a civil suit is often the only kind of justice available.  If nothing else, a large settlement or verdict can increase awareness, deter future negligence, and help a person or family recover financially and emotionally.

* The Arizona Injury Blog is published by Tucson lawyer Nathan D. Leonardo, who focuses his practice on Personal Injury, Criminal Defense, and DUI Defense. Nothing on this website is intended to create an attorney-client relationship. The information provided herein does not constitute legal advice, but is for general information purposes only. If you have a legal question, you can contact us online or call (520) 314-4125.