The Attractive Nuisance Doctrine | State Fencing Requirements
There’s nothing quite like a quick dip in your pool, particularly during the dog days of summer. A residential pool can be a great source of enjoyment and refreshment, but it can also pose significant risks, particularly for children who are captivated by the water but who lack swimming skills. For that reason, the law generally requires that you erect some type of fencing around a residential pool.
What Is an Attractive Nuisance?
Under long-established law, a property owner generally has no duty to protect the safety of trespassers. The attractive nuisance doctrine is an exception to that rule when a child enters private property without the permission of the owner. Specifically, the attractive nuisance doctrine applies to dangerous property conditions that may attract children and result in their injury. Residential swimming pools have long been governed by the attractive nuisance doctrine. Courts have also applied the doctrine to trampolines, old cars and appliances, and sand and gravel piles.
What Is Required to Prove an Attractive Nuisance?
The doctrine does not apply to every item on the property that could potentially harm a child. Generally, the doctrine applies only if all of the following elements are met:
- A condition existed, or an item was present, that was both dangerous in and of itself and likely to cause injury to anyone coming into contact with it;
- The condition or item was attractive or enticing to young children;
- The injured child lacked the capacity, due to their age, to understand the danger involved;
- The condition or item was left unguarded, unlocked, or otherwise accessible to young children; and
- Access to the condition or item could have reasonably been controlled or prevented without preventing its reasonable use or interfering with the reasonable purpose of the condition or item.
An emerging legal trend in some states is to ignore whether the person injured is a child and simply ask whether the property owner took reasonable steps to prevent anyone from being injured by the dangerous condition. For example, in one case, a child was injured at a school construction site near his home and brought a personal injury lawsuit against the construction company. The defense introduced evidence that the company had erected a fence around the site and posted warning signs. The jury found that those measures were reasonably sufficient to prevent the site from being an attractive nuisance.
What About Swimming Pools?
Currently, all states except Alaska, Colorado, and Delaware have statutes that require some type of fence surrounding a residential pool. City ordinances, like one in Denver, may also require such fences. The presence of a fence that meets statutory requirements, and is in working order, is generally considered a reasonable step to prevent a pool from being considered an attractive nuisance.
If you have a residential swimming pool or hot tub, you not only need to comply with legal requirements regarding fencing. You should also be aware of legal requirements relating to signage and drain covers.