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Those of you who have little interaction with the legal field may think of the term attractive nuisance when it comes to Joe Biggolo coming up to the bar to flirt while you’re just trying to have a conversation with your friends.  He may be nice looking, but his advances are obnoxious and unwelcome. 

Unfortunately for you, the attractive nuisance doctrine can cause much more of a headache than an unwarranted Casanova.  Essentially, under common law, the attractive nuisance doctrine pertains predominantly to children and means that a landowner has something so hazardous and irresistible on their property that they should have been aware children would be drawn to it and protected said property accordingly; think the witch’s house in Hansel and Gretel, what person wouldn’t expect a child to be compelled to move nearer to a tasty candy abode?

Fresh out of confectioner constructions?  Sorry, but you aren’t necessarily in the clear.  Common types of lawsuits we see involving attractive nuisance often have trampolines, swimming pools, dirt hills, and all other manner of adventuresome structures that children are tempted by.  While a swimming pool is considered an attractive nuisance, ponds and lakes are not. Additionally, the law presumes that children are capable of understanding some dangers, such as great heights and fire.

Some of the most common attractive nuisances include:

–          Swimming pools and fountains

–          Machinery, such as lawnmowers and gasoline pumps

–          Wells or tunnels

–          Dangerous animals

–          Pathways or stairs

–          Less obvious items, such as rooftops, can also be considered attractive nuisances, especially if children in the area are known to climb them.

Under Montana law, the primary requirements to create a case for attractive nuisance are as follows:

1) an artificial condition maintained by the possessor of land in a place which the possessor knows or should know that children are likely to trespass;

2) the condition involves an unreasonable risk of death or serious bodily harm;

3) children because of their youth will be unable to discover the condition or realize the danger;

4) the utility of maintaining the condition is slight compared to the risk it presents to young children; and

5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise protect the children.

Big Man v. State of Montana, 192 Mont. 29, 38, 626 P.2d 235, 240 (1981); Tally Bissell Neighbors, Inc. v. Eyrie Shotgun Ranch, LLC, 2010 MT 63, P44.

If your child was injured on someone else’s property due to an attractive nuisance, you need a skilled personal injury attorney on your side to ensure the responsible party is held accountable for his or her actions. At Bryan, diStefano & Mattingley, PLLP, our team of personal injury attorneys is dedicated to representing those who have been wrongfully injured.  Contact our office today to set up a free consultation.