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What is an "attractive nuisance" under New York law?

The importance of the attractive nuisance doctrine is that if the plaintiff is successful in establishing its elements then the ordinary defenses of property owners or occupiers with regard to trespassers do not apply. As you may expect, proving all of these elements can be challenging in that considerable factual investigation will be required, which is something that an experienced personal injury attorney can help you with.

Children are by nature curious, and sometimes their curious nature can get the better of them, in the form of their going to places and doing things that an adult would know better not to. As a public policy the law only holds minors to adult standards in a few circumstances, such as when they commit certain types of violent crimes. One area in which New York law establishes a separate standard for children is in premises liability via the “attractive nuisance” doctrine.

The attractive nuisance doctrine holds property owners and occupiers to a standard of care to protect children from dangerous conditions, even if those children are trespassing onto the property. It consists of the following elements: 

  • The property onto which the child entered must have on it an artificial condition, like a building, an open pit, or abandoned equipment.
  • The property owner or occupier must have known, or had reason to be aware, of the likelihood that children will trespass onto the property. 
  • The owner or occupier either knew or should have known that the artificial condition posed a risk of death or serious injury to children that was unreasonable under the circumstances.
  • Children because of their inexperience and young age could not have been expected to have been aware of the condition or to realize the risks that it posed.
  • The benefit to the owner or occupier of keeping the artificial condition on the property, as well as the burden of eliminating the danger that condition posed to children, were minor compared to the risk that the condition posed to children.
  • The property owner or occupier failed to exercise reasonable care to remove the danger that the artificial condition posed to children, or to protect them from it.

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