Attractive Nuisance & Florida Premises Liability Law

Normally, when a trespasser walks onto someone’s property, the owner has very little duty to exercise care toward that trespasser – Florida law only requires that an owner refrain from intentionally injuring the trespasser. However, when the trespasser is under the age of 18, the duty shifts drastically. Minor children are presumed to not be able to accurately assess danger to themselves in these situations, and because of this, property owners are required to take more precautions to safeguard them from danger. The doctrine of ‘attractive nuisance’ fits into this heightened obligation to protect.

An Owner’s Duty Of Care Shifts

At common law, Florida law recognizes three types of visitors that may come to someone’s premises: invitees, licensees, and trespassers. The presence of an invitee requires a property owner to take steps to make their property safer, and if it cannot be done, to warn the invitee of any potential hazards they might discover. Licensees and adult trespassers are owed only the duty to refrain from intentional injury – but child trespassers are seen as a special exception to that lack of duty on the part of the property owner.

Adult trespassers can, in theory, appreciate that their actions are wrong – but children under a certain age may have no idea. Because of this, the onus is placed on the property owner to help protect children from injury – and if they fail to do so, the owner can be held liable for a child’s injuries because they are presumed to be more aware of the potential hazards on their land. An attractive nuisance on a person’s land must be made as safe as possible, and a failure to do so can invite liability.

Was Reasonable Care Taken?

Florida defines an attractive nuisance as something that may be dangerous to children, but children may not appreciate the danger due to their youth. Florida law specifically lists examples of attractive nuisances, such as iceboxes, refrigerators, clothes washers or dryers, and “similar airtight units” – but case law has also cited other potential hazards such as swimming pools, trampolines, lawn or construction equipment, and certain types of landscaping. If there is a feature on someone’s land that a child would see and be attracted by, despite it potentially being dangerous to them, it may qualify as an attractive nuisance, leading to liability for the property owner.

In general, the attractive nuisance doctrine applies when (1) the property owner knew (or should have known) of a potential attractive nuisance on their land and the possibility that a child could be injured when interacting with it; and (2) despite that knowledge, the owner did not take ‘reasonable steps’ to warn of or mitigate the potential risk to children. While a court will entertain several considerations before making their decision (such as the age and capability of the injured child), these two points are the cornerstone of any premises liability allegation, and must be dealt with appropriately in order to avoid liability.

Contact A Tampa Premises Liability Attorney

An injured child on your property can be a legal nightmare, especially if you failed to take steps to mitigate the harm of a potential attractive nuisance. If you have questions or concerns about the attractive nuisance doctrine, contacting a Tampa premises liability attorney from the Rinaldo Law Group may help to get them managed. Call our office today for a free consultation.

Source:

leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0800-0899/0823/Sections/0823.08.html