As any parent can attest, there is virtually no limit to the mischief unsupervised children can cause. The variety of items that will arouse their curiosity and become their playthings is equally limitless—and construction sites can be especially attractive to curious children. Although the possibility a child will climb ladders, play with materials or attempt to operate heavy machinery is given little thought by many roofing contractors when securing materials and equipment at the end of the day or week, children can expose roofing contractors to extensive liability under a legal doctrine known as "attractive nuisance."
Generally speaking, an owner or occupier of land—a classification that includes contractors while work is in progress—is not required to exercise care to ensure trespassers' safety. The only obligation is to avoid willful, wanton or reckless conduct that is likely to injure trespassers, reflecting the high priority given to property rights. The attractive nuisance doctrine is an exception to this favoring of unrestrained property rights and instead gives primacy to child safety.
Nearly every state has adopted a rule requiring contractors to exercise reasonable care to protect against foreseeable dangers to child trespassers, balancing property rights against society's interest in protecting children. Failure to exercise this reasonable care may render you liable in the event of a trespassing child's personal injury or death.
Essentially, the attractive nuisance doctrine is grounded in the law of negligence as it applies to conditions that are highly dangerous to trespassing children. You are not required to make trespass by or injury to a child impossible nor must you guard against remote or improbable injuries. Instead, you only are required to do what is reasonable under the circumstances.
Although the specific formulation may vary among states, generally, the attractive nuisance doctrine applies to hold a party responsible for death or injury to a child if:
As this formulation makes clear, attractive nuisance is a fact-intensive inquiry into, among other things, a property's nature and location, the nature of the instrumentality or condition, the child's age and the particular circumstances surrounding the injury.
Some states impose additional requirements before the attractive nuisance doctrine will be applied. The doctrine's antiquated version, still followed in a minority of jurisdictions, requires a child to be attracted or enticed onto a property by the dangerous instrumentality. So if a child observed the instrumentality and trespassed to play with or on it, the doctrine might apply, but if the child was trespassing out of boredom or convenience and happened upon the dangerous instrumentality, the doctrine would not apply. The modern view considers this requirement narrow, unreasonable and unjustified.
The difficulty of determining or limiting the objects to which the attractive nuisance doctrine properly applies has been frequently remarked upon by the courts and, in some historical instances, was regarded as a reason for rejecting the doctrine altogether. Indeed, the observations of the Supreme Court of Texas in 1896 are as true now as they were a century ago: "What object or place," asked the court, "is not attractive to very young persons who are left free to pursue their innate propensity to wander in quest of amusement? What object at all unusual is exempt from infantile curiosity? What place, conveniently accessible for their congregation, is free from the restless feet of adventurous truants?"
Because attractive nuisance is such a fact-intensive inquiry, there are numerous contradictory decisions regarding what constitutes an attractive nuisance.
For example, though some courts have held piled lumber, debris or other construction materials may constitute an attractive nuisance—particularly where the materials are insecurely piled—and that the owner should have foreseen children would play with the materials without realizing the dangers involved, in other cases it has been held piled construction materials cannot be regarded as inherently dangerous or likely to be a child's plaything. Nevertheless, by understanding the concepts and reasoning behind the required elements enumerated, you can better anticipate and protect yourself against liability.
Where children go
A job site's character is particularly important when evaluating exposure to attractive nuisance liability. A fenced government facility, for example, is not likely to suffer child trespassers. A strip mall near an apartment complex, on the other hand, may allow easy access for neighborhood children. You should be especially mindful when reroofing schools, condominiums and residences, which, for obvious reasons, are more likely than most projects to be susceptible to child trespassers.
The inquiry of whether children are likely to trespass typically is grounded in what the contractor "knows or should know." A contractor working at a school in the spring should know there will be children around. A contractor working at a fully fenced-off job site might not have any reason to suspect trespassers. If, however, that same contractor had observed children using the site as a shortcut or playing in the immediate vicinity, the burden to keep the site safe may be raised based on this knowledge. If an occupier has not observed child trespassers previously and has no reason to expect them based on the surrounding conditions, he or she may have an absolute defense to a claim based on attractive nuisance.
Is it dangerous?
A threshold issue for courts to determine is whether the instrumentality is dangerous.
In a case decided by the Supreme Court of Wisconsin in 1969, a roofing contractor was sued after a minor was struck in the eye by a shingle thrown by another minor. Although the roofing contractor had a duty to maintain a job site free from debris while repairing the roof, because there was nothing inherently dangerous about the shingle, its substance or location, no cause of action based on attractive nuisance was available, and the case was dismissed.
Conversely, in a 1960 case decided by the Supreme Judicial Court of Massachusetts, a roofing contractor was held liable for injuries sustained by a 6-year-old when another child was swinging an ax the roofing contractor had left in a courtyard between two buildings. The contractor's foreman and crew knew children were playing in the courtyard and that the children had touched barrels of tar and other supplies the contractor kept in the courtyard. The ax, which had been used for opening the tar barrels and chopping the pitch, was left in the courtyard when the roofing workers finished their work for the day, and the injury occurred after the workers had left.
Although both cases involved minors injured in ways that arguably could have been foreseen and protected against, the key distinction is the inherently dangerous ax versus the inherently benign shingle.
Although heavy equipment or machines may be classified as dangerous, ladders, scaffolds and lifts that pose a risk of falls generally are not considered inherently dangerous unless they are defective or in a state of disrepair that is not obvious to a child.
Risk of falls
The idea that the risk of falling from an elevation will not be sufficient in and of itself to raise the doctrine of attractive nuisance was well-articulated by the Pennsylvania Supreme Court in a case in which a 6-year-old girl climbed onto a bridge abutment 24 feet above the street to play on an ornamental cornice that resembled a chair. Attempting to descend, she lost her footing and fell to her death.
Holding the cornice was not an attractive nuisance, the court reasoned: "No danger is more commonly realized or risk appreciated, even by children, than that of falling; consciousness of the force of gravity results almost from animal instinct. Certainly a normal child nearly seven years of age—indeed any child old enough to be allowed at large—knows that if it steps or slips from a tree, a fence, or other elevated structure, it will fall to the ground and be hurt."
That case's circumstances were undeniably tragic. Yet if the standard for dangerousness was only that a place was easy to climb to and fall from, every tree, pole, fence, ladder and railing would be an attractive nuisance.
For this reason, courts have required an additional defect that would render something dangerous to climb for a reason other than the standard risk of falling.
In a California case, a 7-year-old boy was playing on a building under construction when he walked on a loose scaffold that gave way. Because the child had no way of knowing the scaffold was defective and the defect could have been repaired at little cost, the court held the builder liable for the injuries, reasoning a child who might appreciate the danger of falling from a properly constructed scaffold could not anticipate the danger that arose because the scaffold was improperly built.
Similarly, in another California case, a builder was held liable when a 12-year-old playing on a scaffold at a residence under construction was thrown to the ground when a plank that was not nailed down or secured tilted and threw him to the ground.
If a scaffold is properly constructed, there probably will be no liability simply because a child walks on the scaffold and falls off. Therefore, a New York court held a painter's scaffold left hanging a few feet below a window while a coat of paint was drying presented no invitation to a girl under 9 years of age to climb out the window onto it. The painter was not liable for injury to her by a fall that was not occasioned by any defect or insecurity of the scaffold itself.
Machinery
Because heavy equipment and machines are well-known to be particularly fascinating to children, it should come as no surprise machines have been the subject of numerous attractive nuisance actions.
Generally, regular automobiles are not considered attractive nuisances even if left unlocked and with the keys in the ignition because there is nothing inherently dangerous about them except under special circumstances. A car might be an attractive nuisance if, for example, it were left running with the hood up, unattended and under such circumstances that would permit children to reach into the engine. Machines and heavy equipment, on the other hand, are treated differently because of their enhanced potential for danger.
When a 26-ton bulldozer was left unattended and unlocked at a construction site and was of a make and model easy for an untrained person or child to activate, a California court highlighted the enormous risk of danger arising out of a joy rider on a bulldozer as compared with an automobile because of the bulldozer's weight and power and because it could be expected a thief or joy rider would not know how to operate it.
That is precisely what happened. Two youths were able to start the bulldozer but were not able to stop it, so they simply abandoned the bulldozer, which proceeded to cause extensive property damage and injuries to people before finally coming to a halt against a retaining wall.
In a Wisconsin case, a 9-year-old boy was injured when he stuck his arm into a mixer featuring a stationary drum with revolving blades. The contractor had seen children playing in the area and warned them not to come near the machine when it was running. The machine was left running and unattended later that afternoon while the contractor hauled material to the other side of the building, at which time the injury occurred.
The Supreme Court of Wisconsin determined the unusual machine, situated and left unattended in a place where the contractor had observed children playing, constituted an attractive nuisance. The contractor easily could have stopped the rotating blades while the materials were being transported, and the contractor's failure to exercise reasonable care when it was practicable and feasible to do so rendered the contractor liable for the injury.
The child's age
The attractive nuisance doctrine is designed to protect "children of tender years" against dangers they cannot appreciate because of their youth. Children old enough or intelligent enough to appreciate a particular danger will be unable to recover under the doctrine. The age of an injured child will be taken into account by courts, leaving a contractor in a position where the same condition and injury under the same circumstances might render him or her liable if a 5-year-old is injured but not if a 10-year-old is injured.
Courts not only will consider an average child's intelligence and experience but also will inquire into the intelligence and traits of the injured child as an individual when determining whether the child could or could not appreciate the danger.
There is a general consensus among most courts that no arbitrary age limit can be fixed above which the attractive nuisance doctrine does not apply. Instead, whether a child is too young to appreciate a particular risk is a question of fact in each case.
The attractive nuisance doctrine generally will not apply to 14- or 15-year-olds. A 14-year-old of average intelligence is likely to be aware of the potential dangers of his or her surroundings to the same degree or nearly the same degree as an adult, and it is difficult to identify a circumstance where "youth and inexperience" renders him or her unaware of the possibility of such dangers.
In one case, a 14-year-old attempting to operate a crane caused the boom to contact electrical wires, killing him. The court held the attractive nuisance doctrine did not apply because the child was of such an age and intelligence as to appreciate the risks of operating the equipment and of electrocution.
Children who are particularly fearless or exhibit a proclivity toward risk or adventure will be given no special consideration as long as it can be said they were capable of appreciating the risk.
Reasonable care
The duty to safeguard a dangerous attraction is subject to the qualification that this can be done without serious inconvenience and without great expense to the owner. There is no duty to take precautions if doing so would be so burdensome as to be impracticable.
An owner or occupier of land is not bound to make the trespass or injury of children impossible but is only required to take such measures or precautions as an ordinarily prudent person would take under the circumstances to prevent injury to children of normal instincts, proclivities and training even if those measures may not serve to protect the abnormally mischievous and disobedient.
Reasonable care to prevent access most commonly is accomplished through erection of a fence or site supervision. If a fence or other barrier should reasonably be expected to exclude children or place them on notice that their presence is not welcome, recovery for injuries to child trespassers generally is precluded.
In a recent case, a child was kicked in the head by a horse after she climbed over a barbed-wire fence surrounding land on which horses, which had no history of violence toward humans, were kept. The Supreme Court of Kentucky found the attractive nuisance doctrine did not apply because the landowner had taken reasonable steps to prevent trespassing by children and the cost of rendering the property completely inaccessible to children would have been prohibitive.
Although it is possible, as in the scaffolding cases discussed, that a poorly constructed fence that is dangerous might expose a contractor to liability, that liability usually does not extend to cases where the fence is dangerous because it has barbed wire.
In a New York case, a child who cut her hands while attempting to climb over a 10-foot fence with visibly sharp edges was not entitled to recover in attractive nuisance. As the court observed, the purpose of a tall fence with sharp edges is to keep people out. Requiring a landowner to ensure a fence is safe and easy to climb would defeat the purpose of having a fence.
Supervision of a site by a contractor who instructs unwanted children to leave or warns them of the danger may cut both ways. On one hand, for a child of sufficient age, the warning can be taken as implying the child's knowledge or appreciation of the risks involved. However, it also demonstrates the contractor's awareness of the danger posed by the conditions, and knowledge of prior trespassing efforts may indicate the contractor knew or should have known of the continued risk of trespassing children.
Protect yourself
Although the fact-intensive nature of the attractive nuisance doctrine makes it impossible to provide instruction or advice covering every situation, the key to preventing exposure to these actions is recognition. This is a rare instance where the law will require affirmative action on the part of a property owner or occupier to protect the safety of people who have no business being on the property.
For the most part, you should be protected by securing tools, equipment and materials before leaving a site for any extended period of time and ensuring all machinery and heavy equipment has a lock or some other mechanism that would prevent it from being operated by a trespasser.
However, if you know children are likely to trespass on the site or play in the immediate vicinity, the duty is heightened, and additional care should be taken to ensure safety such as by monitoring or supervising materials or equipment during the work day or taking action to erect a fence or otherwise prevent access.
David M. Gersh is an attorney with Atlanta-based law firm Hendrick, Phillips, Salzman & Flatt.
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