Your young child trespasses on a neighbor’s property one night. The neighbor is not home. They just put in a new below-ground pool for the summer, and that’s what drew your child to the property.
After all, this is not just a pool. It has beautiful landscaping, making it look like a Caribbean resort. The pool has underwater lights that your neighbor leaves on all the time, lighting it up and making it look stunning when the sun goes down. The complex has a pool house, two diving boards, a hot tub and a water slide. It seems like a dream come true for children.
A nightmare for parents
When your 5-year-old wanders onto the property and falls into the pool, another neighbor sees the splashing. By the time anyone gets there, though, your child is underwater. Emergency crews respond and get the child breathing again, but there’s a potential for brain damage, sky-high medical bills and many other costs.
Your neighbor claims not to be at fault
Topping it all off, your neighbor says he or she isn’t paying. The neighbor’s insurance company says your child trespassed and should never have been on the property anyway. It’s not your child’s pool. You’re responsible.
Is that true? Possibly, but it could be that the pool itself is an attractive nuisance.
The attractive nuisance doctrine
Essentially, an attractive nuisance is something that poses a threat to children, is inherently dangerous, and will draw children to it. The property owner knows or should know that it is dangerous but does not take proper steps to keep those children safe.
It does not matter, in many cases, if the children had permission to be on the property. Adults must recognize that children make poor choices at a young age and cannot, on those grounds, act negligently on their own. They honestly did not know any better.
Were safety features in place?
Was there a fence around that pool? Did it have proper gates so that children could not open them?
If so, your neighbor may not bear responsibility. He or she tried to keep the kids out and took all reasonable steps to do so. This may not prevent all accidents — perhaps your child climbed the fence — but your neighbor made an effort.
However, if there was no fence or gates, then the liability for the accident may fall on your neighbor. They had to know that the pool complex would draw children in and did nothing to stop it. That led directly to the near-drowning incident.
As you can imagine, these kinds of cases can be complex and are often hotly contested by those who own the attractive nuisances. It is important to know your legal rights.