Recent Colorado case defines Attractive Nuisance

SW, a minor v. Towers Boat Club, Inc., 2012 COA 77; 2012 Colo. App. LEXIS 642

If the child is already on the property, there is no attractive nuisance.

In this case an eleven year old boy was on property playing in a rented inflatable structure. The structure had been rented by the landowner. The structure blue into the air injuring the child.

The parents claimed the landowner was negligent and the landowner was liable under Colorado’s premises liability statute. The trial court granted a motion for summary judgment on both claims and the plaintiff appealed the issue of the statutory premises liability claims.

Colorado like most states divides people on the land as one of three types, trespassers, licensees or invitees. The landowner owes different levels of protection or owes greater liability protection based on how the person is on the land.

A trespasser may recover only for damages willfully or deliberately caused by the landowner.

(b) A licensee may recover only for damages caused:

(I) By the landowner’s unreasonable failure to exercise reasonable care with respect to dangers created by the landowner of which the landowner actually knew; or

(II) By the landowner’s unreasonable failure to warn of dangers not created by the landowner which are not ordinarily present on property of the type involved and of which the landowner actually knew.

An invitee may recover for damages caused by the landowner’s unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known.

The parties and the court concluded that the plaintiff was a licensee. As such the landowner had a duty to exercise reasonable care with respect to the dangers created by the landowner.

The plaintiff argued that the landowner owed a greater duty because of the attractive nuisance doctrine.

The attractive nuisance doctrine was developed to:

…provide legal relief to certain trespassing children who otherwise would be barred from recovery because of Colorado’s rule that a landowner owes no duty to make or keep premises safe for a trespasser.

A landowner was liable for injuries to children (minors under the age of fourteen) if something on the land or maintained on the land by the landowner attracted the minor to become a trespasser and consequently injured the trespassing minor.

…plaintiff may recover on a claim for attractive nuisance if, among other things, the plaintiff “(was attracted onto the premises by [an unusual activity being carried on, on the premises] [or] [by an unusual condition, other than a natural condition, existing on the premises]) (or) (was on the premises with the express or implied consent of the defendant)”

..attractive nuisance doctrine “imposes a duty of care on landowners to prevent serious harm to trespassing children

So?

The analysis was lengthy but very simple. The child was already on the land, so therefore the attractive nuisance doctrine did not apply. “The doctrine consists in maintaining an attraction which entices to trespass, not merely entices one after he has become a trespasser…”

The doctrine only applies if the child was a trespasser. Consequently the child was not a trespasser by definition of the statute and because the child was already on the land.

So Now What?

This takes a possible claim away from injured minors who are already on the land. The attractive nuisance doctrine did not give a lot of latitude to the landowner in possible defenses. If the child was a trespasser, was attracted to something on the land and was injured, the landowner was liable.

What do you think? Leave a comment.

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