Attractive Nuisance and Injuries to Children

As parents, there is nothing worse than seeing your child suffer or losing a child. When it happens due to the negligence of a property owner, there must be accountability.

When it comes to premises liability law in Florida, children are entitled to special legal protections not afforded to adults. Specifically, our Fort Lauderdale child injury lawyers are talking about the legal doctrine of attractive nuisance.

The general idea is that while property owners don’t typically owe much duty of care to those who trespass (beyond not intentionally setting traps for them), it’s different when there are dangerous conditions on site that could foreseeably attract young children. Owing to their youth and inexperience, they are unable to discern the potential danger of a situation.

At The Ansara Law Firm, our injury attorneys are committed to you and your family and working toward a just outcome. We understand no amount of money is going to take away the pain your child suffered or return life to the way it once was. However, we can work toward holding careless property owners responsible for the harm they have caused.

The legal principle upon which owners, occupiers and lessees of property may be held liable for injuries that occur on their property is known as premises liability. The bulk of these cases will be decided on whether the property owner was negligent, which means first establishing the owner had a duty of care. From there, the child injury attorneys at our Fort Lauderdale firm must show the duty of care was breached and finally that this breach caused plaintiff’s injuries.

The question of “duty” in premises liability law is predicated on that status of the visitor. That is, what purpose did the visitor have to be on site? Those invited on site for the profit of the landowner/ occupier will be owed the highest degree of care, while those who are trespassing will be given the lowest.

One major exception to this is children. It is well known that firstly, children don’t always grasp the concept of trespassing, and further they do not understand when something that looks fun or interesting might also be dangerous.

F.S. 768.075 specifically grants immunity for injury that occurs to trespassers on one’s property. However, the statute goes on to say that the law “shall not be interpreted or construed to alter the common law as it pertains to the ‘attractive nuisance doctrine.’ “

Florida courts, in considering what may be an attractive nuisance, look at whether the child was attracted to the property by an instrumentality – manmade or natural – that because of their youth, they were unable to recognize the danger.

F.S. 823.08 specifically lists some attractive nuisance items as those that might be abandoned or discarded on a site, such as:

• Iceboxes
• Refrigerators
• Deep-freeze lockers
• Clothes washers
• Clothes dryers
• Any similar airtight units

These are units where the doors haven’t been removed and that are deemed a “menace” due to the health and safety risks that arise when they are accessible, regardless of whether the children are trespassing.

However, this list is not exhaustive. For example, a trampoline may be considered an attractive nuisance. So too might an old vehicle or treehouses or dogs. For example, while F.S. 767.04 does impose strict liability for dog owners whose dogs bite – regardless of evidence of previous viciousness – there is an exception if the individual is trespassing – except if the trespasser is a child under the age of 6.

Also, our Fort Lauderdale child injury attorneys know that unsecured swimming pools are one of the most common conditions from which attractive nuisance claims arise.

According to the a Survey of Residential Swimming Pools, as conducted by researchers at Florida State University, there are nearly 1.1 million residential swimming pools in the state. That figure only includes 61 of 67 counties, and it doesn’t include commercial and public pools, where 40 percent of drownings occur annually.

This state has the highest drowning rate in the nation for children under 5, and 60 percent of these occur in residential swimming pools. Two factors are most commonly-cited in these cases:

• Lack of adult supervision;
• Lack of pool safety features, as mandated by law.

That law is the Residential Swimming Pool Safety Act, codified in Florida Statute Chapter 515. The statute requires pools must:

• Be isolated from access to a home by an enclosure that meets the pool barrier requirements (as outlined in F.S. 515.29, which requires barriers to be at least 4 feet high on the outside and not having any gaps/ openings/ protrusions that could allow a young child to crawl under or squeeze through).
• Be equipped with an approved safety pool cover.
• Have any doors providing access from the home to the pool be equipped with an exit alarm or self-closing, self-latching devices with a release no lower than 54 inches off the floor.

Some examples of safety feature that could also be deemed “reasonable,” depending on the type of property and the likelihood of children being present or nearby:

• No trespassing signs;
• Fences and pool gates;
• Alarms to indicate when the pool gate has been opened;
• Automatic closing patio doors.

If your child has been injured on someone else’s property, you may have grounds to seek damages with the assistance of a child injury lawyer in the Fort Lauderdale area. Premises liability lawyers at The Ansara Law Firm can help.

If your child has been injured in Fort Lauderdale contact the personal injury attorneys at The Ansara Law Firm by calling (954) 761-4011 or (954) 761-3641.