Mr Hand you typed a lot more than I was willing to do. Well done.
qts: there isn’t always an adult supervising a child, as that just isn’t practicable. Do you think there should be constant adult supervision, 24/7? For babies and toddlers, sure. But I think a 7 or 8 year old kid should be able to ride his bike down the neighborhood street without his parents supervising him. The parent should have told the children not to eat/touch fruit/flowers/anything on other people’s property. Same with playing with a ten ton turntable on a railroad track. Constant supervision isn’t the problem; inadequate parenting is. But since universally competent parenting isn’t going to happen with homo sapiens anytime soon, the cheapest cost avoider is the person in charge of the attractive nuisance. If you have a nice shiny pit of broken glass on your property, put a fence around it to keep kids out. Kids are naturally attracted to dangerous things. Part of the curiosity of growing up. There are too many dangerous things in the world for even a good parent to say “don’t go near that.” So, we put the responsibility on those who own and have control over the attractive nuisance to make it reasonably safe from children. I recall a case where Cardozo explained this much better than I ever could.
How far can you take the “attractive nuisance” idea? Say I have a fine old oak tree on my property. If some kids climb it and fall, am I liable? Suppose they fall because a branch broke? Am I criminally negligent for not trimming my tree? Suppose I surround my old oak with a beautiful wrought iron fence and a child climbs my fence, climbs my tree, falls out of said tree and impales himself on my fence. Could I have reasonably forseen this? Do I need to cut down all of the trees in my yard?
First thing to notice is that it doesn’t matter if the children are trespassers (the theory is that the attractive nuisance itself caused the trespass). You have to use ordinary care in keeping kids away from the attractive nuisance if you have reason to believe that kids would come to it and get hurt by it and if the utility of the condition was minor compared to the likelihood of injury. Put a fence around your pool. Don’t let your pitbull roam around; a kid might want to pet it.
As for an ordinary tree, it would be hard, if not impossible, to argue that it’s an attractive nuisance (maybe if it’s the only tree for hundreds of miles and it looks like so much fun to climb). You wouldn’t be criminally negligent for any of this, but rather civilly liable. Putting a fence around something is usually good enough (keep the gate locked!) to negate an attractive nuisance claim against you. The prima facie attractive nuisance case is “my child got hurt on your dangerous thing because you didn’t have a fence around it.” Anyway, none of this attractive nuisance stuff has anything to do with the OP. Again, IANAL so if someone sues you for attractive nuisance, go get a lawyer.
Reasonable care is not the issue. There’s absolute liability in these cases, and a fence and a lock won’t exonerate you. I vaguely remember a case from law school (that’s 40 years ago) where someone had a fence around a water hole, and a lock on the gate, and had taken other measures to prevent a child from entering. In addition, IIRC, there was another fence and another lock on the gate to the premises. A child found a way to get in and the landowner was liable.
IMHO an old oak tree can be an attractive nuisance. More than reasonable care to trim old branches is needed. I guess what it amounts to is that if a child gets on your property, climbs the tree, and gets injured, you are liable. Good idea to get homeowner’s insurance.
bartitu8, that’s incorrect. There’s no strict liability for attractive nuisances; it’s still a negligence rule. The attractive nuisance rule is an exception to the general rule that landowners do not have a duty to protect trespassers against harm beyond the duty to refrain from willful and wanton behavior.
The attractive nuisance doctrine works as follows. A landowner is liable for harm to children trespassing on his or her land caused by an artificial condition thereon if:
the place where the condition exists is one the landowner knows or has reason to know that children are likely to trespass;
the condition is one of which the landowner knows or has reason to know about;
the landowner knows or has reason to know that the condition involves an unreasonable risk of death or serious bodily harm to children;
the children, because of their youth, do not discover the condition or realize the risk involved in intermeddling with it or coming within an area made dangerous by it;
the utility to the landowner of maintaining the condition and the burden of eliminating the danger are slight as compared to the risk to the children involved; and
the landowner fails to exercise reasonable care to eliminate the danger or otherwise protect the children.
The above is my paraphrase from section 339 of the Restatement (2d) of Torts. Note, bartibu8, that section 339 is within division 2 of the Restatement – the negligence section. Indeed, the Restatement carves out an exception to the strict liability rule for abnormally dangerous activities for trespassers. Section 520B provides that “[a] possessor of land is not subject to strict liability to one who intentionally or negligently trespasses on the land for harm done to him by an abnormally dangerous activity that the possessor carries on upon the land, even though the trespasser has no reason to know that the activity is conducted there.”
Now let’s talk about the applicability of the attractive nuisance doctrine to trees, shrubs, and the like. For Dopers with Lexis access, the caselaw is summarized by 59 A.L.R.3d 848. The following states provide that trees and the like are not, by themselves, attractive nuisances (e.g., wouldn’t permit recovery for trespassing kids who climb trees and then get injured by falling): Alabama, Arizona, Connecticut, Florida, Georgia, Illinois, Kentucky, Minnesota, Mississippi, Utah, and Washington. Louisiana courts have also been hostile to these claims. (Other states’ law is not examined by the annotation.) However, when the tree or whatever was in combination with an artificial condition, it may be an attractive nuisance. For example, picture a tree with power lines going through the foliage.