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Tuesday, 25 September, 2018
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An Attractive Nuisance

Date: 15 May, 2006

By: Chief

Image what?

You heard me correctly the first time. An attractive nuisance. And guess what? If you are a property owner or even property renter you may have one.

Well, just what in the Sam Thump is an attractive nuisance? Is it that really cute girl next door who is all legs, a belt, tits and teeth?

No.

An attractive nuisance is a legal doctrine which says:

"[A] person who has an instrumentality, agency or condition upon his own premises, or who creates such condition on the premises of another, or in a public place, which may reasonably be apprehended to be a source of danger to children, is under a duty to take such precautions as a reasonably prudent man would take to prevent injury to children of tender years whom he knows to be accustomed to resort there, or who may, by reason of something there which may be expected attract them, come there to play" (quoting Black's Law Dictionary)

Okay. Now just what in thunder does that mean? Well it appears to have something to do with property, kids and liability. I think we ought to try this one more time — in English, or close to it, instead of legalese. With that said here it is:

"There is normally no particular care required of property owners to safeguard trespassers from harm, but an attractive nuisance is an exception. An attractive nuisance is any inherently hazardous object or condition of property that can be expected to attract children to investigate or play (for example, construction sites and discarded large appliances). The doctrine imposes upon the property owner either the duty to take precautions that are reasonable in light of the normal behavior of young children--a much higher degree of care than required toward adults--or the same care as that owed to "invitees"--a higher standard than required toward uninvited, casual visitors" (quoting Rupp's Insurance & Risk Management Glossary)

Ah, it makes so much better sense now. And, as I wrote earlier, if you are a property owner or even a renter and there are kids roaming around you just might end up screwed.

Here is an example of what I am talking about. You own property, a house and land let's say, and on your property you have a swimming pool. If you do not have a fence or some other barrier around the swimming pool (or your entire property) you may just have an attractive nuisance.

But why is my swimming hole an attractive nuisance?

According to the legal doctrine of attractive nuisance, kids left unattended or without adult supervision would be hard pressed (according to the doctrine) not to trespass upon your property and go for a dip in your swimming hole.

Then should said trespassing kid get injured or die while taking an afternoon dip in your swimming hole — that you did not give him or her permission to do — you, the owner of said property are liable under a tort claim for the kid's injury or death.

In other words — it becomes your (the property owner's) fault that some spoiled brat:

So, some kid commits a criminal offense and the property owner is hung out to dry.

That sucks. It really does. Not only that it is wrong. It is flat out wrong and needs, as in the worst way, to be done away with. Once and for all. Permanently.

People do tend to have kids and there isn't anything inherently wrong with that. I have three sons (it ain't the water, I'm sure of that). However, it seems to me that if a couple desires to make the change from couple to parents then they — not me — have the inherent, sole and direct responsibility of raising and looking out for the little blighters that they, the couple, copulated and created. Not me.

If I am not baby sitting Little Johnny or Little Susie why should I, as a property owner, be penalized or held liable for the actions of Little Johnny or Little Susie? I should not be.

Furthermore, why aren't the parents held responsible for their:

It is or — er — was their kid. Not mine.

Consider that one of the first words a kid hears once they can start really moving around is the word no. A few 'nos' later a hand gets slapped. If that did not get the little rug-rat's attention a few more 'nos' later a butt gets blistered (or should get blistered). Believe it or not, there really is a direct connection between butt and brain. And after a while the little rug-rat should have learned the meaning of the word 'no'.

Hence, while some kids, possibly most kids, may not know the meaning of the phrase 'No Trespassing', they sure as shootin' know what the meaning of the word 'no' is. Sore butt comes quickly and vividly to mind.

A phrase which I learned at a very early age and has stuck with me (one or two butt blisters later, I was a slightly stubborn kid) was the phrase "if it ain't yours, don't touch it." Translated that means — do not touch other people's property.

Now put those two together, 'no' and 'don't touch other people's property'. What do you end up with? You end up with a kid who respects other people's property. That is what. I do not give a hoot if the other person's property is a pencil, a poster, a video game or a property owner's swimming hole. A kid who has been raised properly will not violate the other person's property rights. It is that simple.

Parents — should not even attempt to hold a property owner responsible for their failings because it is wrong. I will tell you this much, if some parent tried that crap on me (as the property owner) I'd laugh in their face and then spit in their eye.

As I stated earlier an attractive nuisance is a legal doctrine. It is normally not law, though you would need to review your state's civil law statutes. It is merely a way to state a tort claim against an innocent property owner.

Okay, now just what in the world is a tort?

Here is the definition (courtesy of the Stanford Encyclopedia of Philosophy):

"A tort is a legal wrong. Tort law is a branch of the civil law; the other main branches are contract and property law. Whereas in criminal law the plaintiff is always the state and the defendant, if found guilty of a crime, is punished by the state, in civil law the dispute is typically between private parties (though the government can also sue and be sued). In the case of torts, the plaintiff is the victim of an alleged wrong and the unsuccessful defendant is either directed by the court to pay damages to the plaintiff (the usual remedy) or else to desist from the wrongful activity (so-called "injunctive relief"). Examples include intentional torts such as battery, defamation, and invasion of privacy and unintentional torts such as negligence. Most contemporary tort theory focuses on the legal consequences of accidents, where the relevant forms of liability are negligence and strict liability."

Fine. So what can property owners do? Well if attractive nuisance is strictly a legal doctrine within your state, contact your state representative and have them author a bill which would proscribe the doctrine in any and all claims and in any and all jurisdictions within your state. If your state has a statute for attractive nuisance then, again, contact your state representative and have them author a bill repealing said statute.

Good luck. The trial lawyers will do everything they can possibly do to prevent either from happening. It is in their scum sucking interest to do so. It would cost them money.

Trespassing kids — an unattractive nuisance.

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