Question

State the elements of proof that are necessary to make out a case of attractive nuisance as per the Restatement of Torts, Section 339.

Answer 1

Attractive nuisance occurs when a child trespasses a property because something in the land attracted him, e.g. an old wagon or car, an gets hurt by playing with it. The requirements for attractive nuisance to exist are:

1. The child is hurt by playing with the object or structure that attracted him/her (the object must be man made).
2. The person in charge of the place should have reasonably known that the object or structure could attract children.
3. The person in charge of the place should have known that playing with the object or structure could pose a risk for children.
4. The child needs to be young enough to not understand the risk of playing with the object or structure, e.g. someone 17 years old is not considered a young child though he/she is a minor.
5. The risk associated with the object or structure is far greater than any decorative use given to the object or structure.
6. The person in charge of the place failed to do enough to prevent the danger or protect any children that would eventually play with the object or structure, e.g. put a fence around it.