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Attractive Nuisance Doctrine in Florida

Establishing negligence in West Palm Beach personal injury claims is sometimes fairly straightforward. For example, someone drives drunk and causes an accident that results in serious injuries.

Other cases, however, are a bit more complex. Those that involve the attractive nuisance doctrine, often pertaining to child injuries.

The attractive nuisance doctrine makes a person or entity negligent for leaving a piece of equipment or some other condition on a property that could be both attractive and dangerous to children. Some examples might be an unguarded swimming pool or an open pit or an abandoned refrigerator.

Negligence can still be established even when a person is a trespasser on the property, though Florida Statute 768.075 limits the circumstances under which this legal principle can be applied. Avoiding liability to undiscovered trespassers requires that property owners refrain from intentional misconduct that might cause injury, but the entity has no duty to warn of dangerous conditions. In cases of discovered trespassers (in which property owners knew about the trespasser(s) 24 hours in advance of the incident, the property owners must refrain from gross negligence and have a duty to warn of dangerous conditions.

These cases can be tough to prove, as illustrated by the recent case of Burton v. State, reviewed recently by the Rhode Island Supreme Court. While state laws on the attractive nuisance doctrine vary, Rhode Island’s law is similar to Florida’s.

The Burton case involved a group of teenagers who, after consuming several beers, broke into an abandoned building rumored to be haunted. The building was owned by the local government. It was not fenced, but there were several “No Trespassing” signs. As the teens were attempting to exit the structure, they discovered four glass bottles containing a clear liquid substance on the floor. Two of the bottles were taken by the boys. One of those bottles was accidentally dropped, and the contents were splashed onto one of the boys. Later, it was determined that the liquid was sulfuric acid and the teen suffered serious burns.

Although the boy’s attorneys conceded that he was a trespasser on the property, he sought damages under the doctrine of attractive nuisance. The claim alleged that the town negligently failed to inspect, repair and/or maintain its premise’s dangerous conditions.

A trial resulted in a judgment in favor of the state, ruling that because the plaintiff was a trespasser, the defendant owed him no duty of care. The plaintiff then appealed, arguing that the trial court erred in finding that the attractive nuisance doctrine did not apply and further that the defendant did share some degree of comparative fault for what happened. The state supreme court ultimately affirmed the earlier ruling.

The principle of the law, the high court ruled, was that a property owner has no duty of care to trespassers except to refrain from “wanton or willful conduct” that would be dangerous, and then only upon discovering the trespasser was in a position of danger.

The court further said that a young child, because of his immaturity and lack of judgment, is not deemed able to perceive all dangers he might encounter as a result of trespassing. This is where it is found that most landowners have a duty of care, even in cases of trespassing. However, the court found it noteworthy that no other case involved the application of the nuisance doctrine when the child involved was older than the age of 12. This plaintiff was 17 at the time of the incident.

Trespassing had been a frequent occurrence on the property, and the town was aware of this. While the court found that the town had acted unreasonably and irresponsibly by having hazardous materials on a property that it knew young children were likely to trespass upon, the older teens realized the risk of taking the bottles, and did so anyway. As such, it affirmed the lower court’s earlier judgment.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:
Burton v. State, December 2013, Supreme Court of Rhode Island

More Blog Entries:
Halloween a Dangerous Time for Child Injuries in South Florida, Oct. 18, 2013, West Palm Beach Injury Lawyer Blog

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