Personal Injury and the Attractive Nuisance Doctrine

Do you have a pool, trampoline, piles of junk, a construction site, etc on your land? If so, you should be cautious of areas on your property that may attract children, because if they hurt themselves while trespassing, you may be liable. In North Carolina, a landowner and/ or occupier will be liable for harm to a child that is sustained if the child was attracted to the dangerous condition or area due to the child’s expected curiosity. An attractive nuisance is an artificial condition that is highly dangerous to children who are trespassers. Due to the fact that children typically cannot appreciate danger, they are excused from being negligent and contributorily negligent in the state of North Carolina. North Carolina has developed “the rule of sevens” when determining if a child is negligent or contributorily negligent.

According to the Restatement (Second) of Torts § 339 (1965), the elements of the Attractive Nuisance theory are:
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

The rule of sevens provides that children up to age seven are incapable of being contributorily negligent. However, there is a rebuttable presumption that children between the age of seven and fourteen are incapable of negligence. The presumption may be overcome if evidence is presented that suggests that the child failed to use care in which a child of their age, capacity or knowledge would have exercised under a similar or the same circumstances. A child that is within the age group of seven to fourteen may not be found negligent as a matter of law, thus the issue of the child’s negligence must be decided by a jury, unless the case settles before trial. Children who are age fifteen to eighteen have a rebuttable presumption to have to capacity to be able to acknowledge danger and able to avoid dangerous conditions. Again however, this presumption can be overcome if evidence is provided to demonstrate that the minor lacks such discretion that corresponds to their age. Unlike children age seven to fourteen, a child over the age of fourteen may be negligent as a matter of law.

In Broadway v. Blythe Industries, 313 N.C. 150 (1985), a five-year-old child was crushed and killed by a large concrete storm drainage pipe. The pipe was delivered to a construction site across the street from where the child lived eleven days prior to the death. A common carrier delivered the pipe to the site, but there is conflicting evidence as to if the pipes were secured to prevent them from rolling after they were unloaded. Two neighbors testified that children were abundant in the neighborhood and that they liked to play on and near the construction site. One neighbor testified that she saw that the carrier did not secure the pipe and said something to the carrier about the hazard and the children, but that they just drove off. She also testified that the pipes were secured by wooden stakes after the child was killed. The other neighbor testified that he continuously ran children off the pipes because it was dangerous for them to be on the pipe and playing on it. In its opinion, the Court relied on an explanation of the Attractive Nuisance Doctrine from Briscoe v. Lighting and Power Co., 148 N.C. 396 (1908), which is as follows:
It must be conceded that the liability for injuries to children sustained by reason of dangerous conditions on one's premises is recognized and enforced in cases in which no such liability accrues to adults. This we think sound in principle and humane policy. We have no disposition to deny it or to place unreasonable restrictions upon it. We think that the law is sustained upon the theory that the infant who enters upon premises, having no legal right to do so, either by permission, invitation or license or relation to the premises or its owner, is as essentially a trespasser as an adult; but if, to gratify a childish curiosity, or in obedience to a childish propensity excited by the character of the structure or other conditions, he goes thereon and is injured by the failure of the owner to properly guard or cover the dangerous conditions which he has created, he is liable for such injuries, provided the facts are such as to impose the duty of anticipation or prevision; that is, whether under all of the circumstances he should have contemplated that children would be attracted or allured to go upon his premises and sustain injury.

At the trial level, summary judgment was entered in favor of the defendant. The court of appeals affirmed the trial court’s decision. When the plaintiff appealed, the Supreme Court of North Carolina reversed on the grounds that (1) although the carrier was not the possessor of the construction site, it could be held liable under the attractive nuisance doctrine because the condition was created on land which caused physical harm to a trespassing child and (2) substantial fact issues existed as to whether the carrier failed to exercise reasonable care to eliminate danger or otherwise protect the children.