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Texas Attractive Nuisance

©2014 Mark Courtois

Attractive nuisance claims involve claims where children are injured due to dangerous conditions that attract children. There are five elements to a Texas attractive nuisance claim: 1) the place where the condition is maintained is one upon which the possessor knows, or should know, that young children are likely to trespass; 2) the condition is one of which the possessor knows, or should know, and which he realized or should realize as involving unreasonable risk of death or serious bodily harm to such children; 3) the children, because of their youth, do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it; 4) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared to the risk to young children involved; and 5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.(1)

In an attractive-nuisance case, the duty to act reasonably, i.e., to conduct inspections if it would be reasonable, stems from actual or constructive knowledge that children are likely to go there.(2)  "If one by exercise of reasonable care would have known a fact, he is deemed to have had constructive knowledge of such fact."(3) Ordinarily, a premises owner or occupier owes the following duties: to a trespasser, - not to injure him willfully, wantonly, or through gross negligence; (4) to an invitee - to "use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware." (5) But "when children of tender years come upon the premises by virtue of their unusual attractiveness, the legal effect [is] that of an implied invitation to do so. Such child [is] regarded, not as a trespasser, but as being rightfully on the premises."(6)  This is the doctrine of attractive nuisance.(7)  Under such circumstances, the law places upon the owner of such machinery or device the duty of exercising ordinary care to keep such machinery in reasonably safe condition for their protection, if the facts are such as to raise the issue that the owner knew, or in the exercise of ordinary care ought to have known, that such children were likely or would probably be attracted by the machinery, and thus be drawn to the premises by such attraction.(8)  The "attractive-nuisance" doctrine is applicable to cases involving different dangerous instrumentalities and conditions on the premises. (9)

1. See Texas Util. Elec. Co. v. Timmons, 947 S.W.2d 191, 193-94 (Tex. 1997) (citing Restatement of Torts (Second) § 339 (1965)).
2. See Timmons v. Texas Utilities Elec. Co., 917 S.W.2d 84, 87-88 (Tex. App.--Waco 1996) (citing Restatement of Torts § 339), rev'd on other grounds, 947 S.W.2d 191 (Tex. 1997).
3. See Timmons v. Texas Utilities Elec. Co., 917 S.W.2d at 87-88 (citing BLACK'S LAW DICTIONARY 314 (6th ed. 1990).
4. See Texas Util. Elec. Co. v. Timmons, 947 S.W.2d at 193.
5. See State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992).
6. Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 847 (1948).
7. See id.
8. See id. at 847-48.
9. See id. at 848.