While the term Attractive Nuisance sounds like a strange oxymoron, the longstanding “attractive nuisance doctrine” of premises liability law has been deemed to be sound in principle and humane in policy by the North Carolina Supreme Court. Basically, the doctrine holds that a real property owner or tenant can be held liable for an injury to a child that was trespassing on the owner or tenant’s property, if the injury was caused by a dangerous condition that was likely to attract children who were incapable of appreciating the risk imposed by the condition. The following is a general outline of how the Attractive Nuisance Doctrine applies in North Carolina. This blog is not to be construed as legal advice.
Generally, a landowner or tenant (landowner) has no duty to warn of, or make dangerous conditions on their property safe for a trespasser (one who enters the property without permission or right). The landowner need only refrain from willful or wanton infliction of injury. Basically, the landowner can be held liable for a trespasser’s injuries if the landowner is found to have engaged in activity that constitutes “willful injury” being actual knowledge of a danger combined with a design, purpose, or intent to do wrong and to inflict injury. A landowner can also be held liable for a trespasser’s injuries if the landowner is found to have engaged in activity that constitutes a “wanton act”, which is performed intentionally with a reckless indifference to the injuries likely to result.
The law imposes a greater duty of care on landowner’s to protect child trespassers from harm. This duty imposed through the Attractive Nuisance Doctrine is much greater than the duty owed to adult trespassers, which generally requires landowners to not intentionally create conditions on their property that are intended to harm such trespassers. A frequently cited example of where Attractive Nuisance came into play was an out-of-state case involving a utility company that failed to install adequate fences to keep local children out of the company’s electrical substation. Here, the power company was aware of a hole in its fence, but it failed to repair the hole. As a result a child entered the substation through the hole in the fence and was electrocuted while playing on the substation. The law found the utility company liable for the child’s medical expenses, pain and suffering and permanent disability. Other examples might include where trespassing children incur injuries while trespassing on property with broken playground equipment and unsecured construction sites. However, the application of the doctrine can be limited, like when a landowner was unaware of a child trespasser and the presence of child trespassers was not reasonably anticipated. The North Carolina Supreme Court summarized to doctrine in Briscoe v. Henderson Lighting & Power Co., 148 N.C. 396, 62 S.E. 600, (N.C. 1908): One who maintains dangerous implements or appliances on unenclosed premises of a nature likely to attract children in play, or permits dangerous conditions to exist thereon is liable to a child who is so injured, though a trespasser at the time when the injuries are received; and, with stronger reason, when the presence of a child trespasser is actually known to a party or when such presence would have been known had reasonable care been exercised. But when, under the circumstances, the presence of children on the premises was not reasonably to have been anticipated, there is, of course, no duty as to such persons to presence of children on the premises was not reasonably to have been anticipated, there is, of course, no duty as to such persons to have the premises safe.
One additional consideration in apportioning liability in a case involving the attractive nuisance doctrine is the age of the injured child. North Carolina has developed the “Rule of Sevens” that is applied when determining whether a child is contributorily negligent, in incurring their injuries as a trespasser. Generally, a finding of contributory negligence is a complete bar to a plaintiff’s recoveries for personal injuries in North Carolina. (Read our Contributory Negligence Blog for more information.) However, contributory negligence may be inapplicable to a child plaintiff, depending on the age of the child plaintiff. This determination is made in part based on three distinct age groups of the Rule of Sevens.
Children Under Seven:
Children in this age group are legally incapable of negligence under North Carolina law.
Children Between Seven and Fourteen:
There is a legal presumption that children in this age group are incapable of negligence. A plaintiff can overcome this presumption by providing sufficient evidence that the child did not use the care, which a child of their age, capacity, discretion, knowledge, and experience would have exercised under the same or similar circumstances. Thus children in this age group can be contributorily negligent.
Children Between Fourteen and Eighteen:
Children in this age group, like the previous age group are held to the standard of care of their age. The law presumes that children in this age group have sufficient capacity to be sensible of danger and to have the ability to avoid danger. A defendant can overcome this presumption by providing clear proof of the absence of such discretion. The children in this age group can also be contributorily negligent.
We strongly encourage you to seek the advice of a licensed North Carolina Personal Injury Attorney if your child has been hurt on another’s property before you decide whether or not to pursue a claim for your child’s injuries where you could potentially recover damages for medical expenses, pain and suffering, future disability and others. To schedule a consultation today, contact Biazzo & Panchenko Law, PLLC. This blog is not to be construed as legal advice.