Injuries to children – attractive nuisance doctrine
The attractive nuisance doctrine was developed by courts long ago. It follows the intuitive concept that children, due to their youth and impulsive behavior, are instinctively drawn to certain objects and are thus prone to placing themselves in danger. For this reason, the doctrine imposed a duty on landowners to protect all children from certain attractions on their land, whether they entered the land through trespass or invitation.
The earliest articulation of the attractive nuisance doctrine in the United States appears in Sioux City & P.R. Co. v. Stout, 84 U.S. 657 (1873) (commonly dubbed the “Turntable Case”). In that case, a six-year-old boy wandered onto a railroad company’s property and injured his foot on a turntable. The U.S. Supreme Court, considering the boy’s age, held that the railroad company could be found negligent,noting that while a railway company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers, it is not exempt from responsibility to such strangers for injuries arising from its negligence. Thus, although the Court recognized that the boy was a trespasser, that fact did not underpin its holding. Rather, the critical factor was that the boy, in being attracted to the turntable, behaved as children typically do.
Colorado’s pattern instructions for jury trials set out these elements of a claim proving attractive nuisance:
The plaintiff (was attracted onto the premises by the [activity] [or] [condition]) (or) (was on the premises with the express or implied consent of the defendant);
The (activity) (or) (condition) was unusually attractive to children;
The (condition) (or) (activity) created an unreasonable risk of injury to children which the defendant knew, or, as a reasonably careful person, should have known;
The plaintiff was too young to appreciate or realize the risk of injury to (himself) (herself) from the (activity) (or) (condition); and
The defendant failed to exercise reasonable care to protect persons like the plaintiff from injury.
If a child is over age 14, there can still be an attractive nuisance claim, but Colorado law presumes a child over age 14 is capable of understanding the risk of harm. The presumption may be rebutted if the facts are sufficiently compelling.