Making the "Attractive Nuisance" Less Inviting

MAKING THE "ATTRACTIVE NUISANCE" LESS INVITING

by
Julie I. Fershtman, Attorney at Law
Author of Equine Law & Horse Sense
Julie I. Fershtman, Attorney at Law
(248) 851-4111

A little boy's dreams have come to life. While he and his family attended a family reunion party outing the country, the boy spotted down the road a large, jet black, and very beautiful horse -- just like "Black Beauty." The child never before saw a horse in person. Here was his chance. Nobody noticed as he snuck away from the crowd and headed alone down the road toward the horse's pasture. With the benefit of his tiny size, the little boy crawled under the pasture fencing and walked quietly over to the horse. Grazing peacefully in the pasture, the horse never even noticed the boy's approach. Now the boy was directly behind the horse. He reached out to touch the horse's long, flowing tail.

What happens next? Does this encounter end safely? Does the boy get kicked by a startled horse? Does someone pull the boy to safety in the nick of time? If this scenario took a turn for the worse, could the horse's keepers be liable for the consequences?

This article briefly discusses the law of "attractive nuisance."

What is an "Attractive Nuisance"?

A widely-known legal principle is that landowners have no duty to keep their land in a safe condition to protect trespassers. The "attractive nuisance" doctrine, which most states have adopted, is considered an exception to this rule.

An "attractive nuisance" is a potentially harmful object on or condition of the land that, by its features, tends to lure children. Children, because of their age, do not appreciate the danger and can be at risk. "Attractive nuisances: are typically not natural land conditions found on the land, such as a pond, but rather are conditions created by someone. Over the years, a classic example has been a swimming pool.

Is a Horse an "Attractive Nuisance"?

Generally speaking, factors some courts have considered in evaluating whether a landowner is liable for an attractive nuisance are: (1) whether the landowner knew or had reason to know that children could trespass near the hazard; (2) the type of hazard on the property and whether the hazard poses an unreasonable risk of death or serious bodily harm to children; (3) whether the children, due to their youth, could appreciate the risk involved; (4) the importance to the landowner of maintaining the hazardous condition; (5) how the burden of eliminating the hazard compares to the risk of harm involved; and (6) whether the landowner took reasonable precautions or exercised reasonable care to eliminate the hazard or to protect the children from harm.

Over the years, a small number of court cases have considered whether horses qualify as an "attractive nuisance." Courts addressing the issue have focused on the basic propensities of the animal that inflicted injury. Under this rational, some decisions have recognized that horses known to be gentle, with no known history of vicious or dangerous propensities, do not create a foreseeable risk of harm, and therefore, would not likely qualify as an "attractive nuisance."

Avoiding Liability

Are you powerless to avoid liability for an "attractive nuisance"? Not necessarily. There are many efforts you can make. Here are some:

Check your property regularly to spot the types of hazards that might injure others. Depending on the item, consider removing it, moving it away from view, locking it away, or installing secure fencing near it.
Make sure that your horses are adequately fenced. While no fence is guaranteed to be completely "child-proof," check your municipality's land use ordinances (you can find them at your local public library or city hall) for regulations that involve fencing and storage of items. Make sure that you comply with the ordinances.
If any of your horses have know dangerous tendencies, and if you much keep them pastured without supervision, try to pasture these horses away from areas where nearby children can easily spot and approach them.

Have you been too willing to let children trespass on your property and approach you horses? Keep in mind that if you do, this might make you liable if an injury results from an "attractive nuisance." When you spot a child trespassing on your land, consider the following:

Order the child off of your porperty, even if your horses are not known to have dangerous tendencies. Send the child's parents a carefully-written letter (preferably by certified mail and regular mail and keep a copy for yourself) cautioning them to keep their children away. The letter would be wise to avoid any language that could be cinsidered an admission that you horses are dangerous. However, the letter can state that horses, merely because of their size, could have the potential to inflict injury on a young child inexperienced with handling horses.
Or, if you prefer, send a letter cautioning the parents to keep the child away, but inviting the parents to contact you in the future to receive your permission before entering your property so that, at a convenient time, you can personally accompany the child and his or her parent on a supervised visit to see your horses. Your letter can explain that this is the only manner in which you will allow others to enter your property.

These efforts, in themselves, may not eliminate your liability completely, but they will help evidence that many precautions you are taking to protect others. Finally, liability insurance cannot prevent liability, but at least proper insurance can protect you should the worst case scenario ever occur. With this in mind, make sure that your insurance is up to date as to types and amounts of coverage. Contact your insurance agent.

This article is not intended to constitute legal advice. Since every "attractive nuisance" situation is unique, be sure to consult with a knowledgeable attorney.

About the Author

Julie I. Fershtman is an attorney with a law practice serving the horse industry. In her 15 years as a lawyer, she has achieved numerous courtroom victories and has drafted hundreds of contracts. An independent lawyer rating service gives her its highest rating for abilities. She can be reached at (248) 851-4111.

Looking for good resources on Equine Law? Ms. Fershtman's books are highly informative, easy to understand, and even easier to order. MORE Equine Law & Horse Sense, the newest book, sells for $22.95 + $4 shipping and handling. Equine Law & Horse Sense, the first book, sells for $17.95 + $4 shipping and handling. Michigan residents add 6% sales tax. To order, contact Horses & The Law Publishing at (866) 5-EQUINE, a toll-free number, or send check or money order to Horses & The Law Publishing, P.O. Box 250696 Franklin, MI 48025-0696.