How To Prove A Florida Attractive Nuisance Claim
In Florida, a claim of Attractive Nuisance is defined as:
An attractive nuisance is a law in which a landowner can be held liable for injuries to children trespassing on their land if the injuries are the result of an object or condition likely to attract children.
It simply means:
You can be sued if a child is hurt on your property because you didn’t attempt to keep them away from objects like swimming pools, trampolines, containers, etc.
There are 6 elements of the claim:
- Element 1. There was an attractive nuisance (condition) on the defendant’s property. An attractive nuisance is something on a property, like a pool or playground, that is appealing to children and could lead to them getting hurt, making the property owner responsible for ensuring it’s safe or properly secured to prevent accidents.
Facts that might support this element look like:
* The defendant’s property contained an unguarded swimming pool that was easily accessible to children in the neighborhood.
* There were no fences or barriers surrounding the pool, making it an inviting area for curious children.
* The defendant had previously observed children playing near the pool without supervision.
* Brightly colored toys were left around the pool area, further attracting children to the dangerous condition.
* The defendant failed to take reasonable steps to secure the pool despite knowing it posed a risk to children. - Element 2. The place where the condition exists was one upon which the owner knew or had reason to know that children are likely to trespass. This means that the property owner was aware or should have been aware that kids might wander onto their land, making it their responsibility to ensure that any dangerous features, like a pool or abandoned equipment, are safe or properly secured to prevent accidents.
Facts that might support this element look like:
* The property is adjacent to a public park where children frequently play, increasing the likelihood of trespassing.
* The owner has observed children playing near the property on multiple occasions, indicating awareness of their presence.
* The property contains a swimming pool that is easily visible from the street, attracting children’s attention.
* The owner has received complaints from neighbors about children entering the property to access recreational features.
* The area surrounding the property is known for its high population of families with young children, suggesting a reasonable expectation of trespassing. - Element 3. The condition was one of which the owner knew or had reason to know and which he realized or should have realized would involve an unreasonable risk of death or serious bodily harm to such children. The owner was aware, or should have been aware, that their property had something dangerous that could seriously harm children, and they understood that this danger posed an unreasonable risk to those kids playing nearby.
Facts that might support this element look like:
* The property owner had previously received complaints from neighbors about children frequently playing near the hazardous condition, indicating awareness of the risk.
* The owner had installed a pool without proper fencing, which is a known safety requirement to prevent access by children.
* The property owner had observed children trespassing on the property to access the attractive nuisance multiple times prior to the incident.
* The owner was aware of local ordinances requiring safety measures for potentially dangerous features on residential properties.
* The condition in question, a dilapidated treehouse, had visible signs of decay and instability, which the owner should have recognized as dangerous to children. - Element 4. The children because of their youth would not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it. Children, due to their young age and lack of understanding, may not recognize the dangers of a hazardous situation or object, making them more likely to accidentally get hurt while playing nearby, which is a key factor in an Attractive Nuisance Claim.
Facts that might support this element look like:
* The children, aged 5 to 10, were playing in the vicinity of the property and were naturally drawn to the brightly colored equipment left unattended.
* The dangerous condition, a deep swimming pool without a fence, was not visible from the street, making it unlikely that the children would recognize the risk.
* The children had no prior experience with swimming pools and lacked the understanding of the potential dangers associated with water.
* The property owner had previously observed children playing near the area but failed to take any precautions to secure the dangerous condition.
* The children were not accompanied by adults who could have warned them about the risks associated with the hazardous area. - Element 5. The utility to the owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved The owner’s effort to keep their property safe and the cost of removing potential hazards are minimal compared to the serious risk posed to children, which is a key factor in determining liability in an Attractive Nuisance Claim.
Facts that might support this element look like:
* The property owner has a fenced yard that effectively prevents children from accessing the swimming pool area.
* The cost of installing additional safety measures, such as a pool cover, is minimal compared to the potential risk of injury to children.
* The property owner has taken reasonable steps to warn children about the dangers of the pool, including signage and barriers.
* The swimming pool is rarely used, making the burden of maintaining its condition negligible.
* The risk of children trespassing and being injured is significantly higher than the inconvenience of implementing further safety precautions. - Element 6. The owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. This means that the property owner did not take proper steps to remove or reduce a dangerous condition that could harm children, even though they knew kids might be attracted to it and could get hurt.
Facts that might support this element look like:
* The property owner was aware that children frequently trespassed onto the property to access the swimming pool but took no steps to secure the area.
* The owner failed to install a fence around the pool, despite local regulations requiring such safety measures for residential pools.
* The property had multiple hazardous items, such as broken glass and sharp tools, left unsecured in areas accessible to children.
* The owner received complaints from neighbors about children playing unsupervised on the property but did not take any action to address the situation.
* The owner neglected to maintain the property, allowing overgrown vegetation to obscure dangerous features like a steep drop-off near the pool.
(See Martinello v. B & P USA, INC., 566 So. 2d 761 – Fla: Supreme Court 1990.)
If you’re in court without a lawyer and plan to assert a Claim of Attractive Nuisance, having a Personal Practice of Law at Courtroom5 is essential. You’ll need to make informed decisions about what to file at each phase of your case and prepare legal documents that are supported by thorough legal research and a strong analysis of the facts. Our resources can help you navigate this complex process effectively.
Prove Your FL Attractive Nuisance Claim
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