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Does California have an “attractive nuisance” doctrine?

Posted by Neil Shouse | Sep 10, 2019 | 0 Comments

kids playing on a trampoline

California no longer has an “attractive nuisance” doctrine.

This doctrine essentially makes property owners liable to injured children who have trespassed onto their property to explore something that could reasonably induced them to trespass. Objects that might cause this trespassing include a:

  • swimming pool,
  • pond, or
  • trampoline.

While there are no longer special instructions for homeowners regarding trespassing children, California property owners now have a general duty to keep their property in a reasonably safe condition.

The duty also requires homeowners to warn others of dangers on their land that might not be readily apparent.

The attractive nuisance doctrine, and laws regarding a homeowner's potential liability to people on their land, are part of the area of the law known as “premises liability.”

Is there an attractive nuisance doctrine under California law?

California no longer has an attractive nuisance doctrine.

Before 1970, California did have this doctrine in place. And, it applied when a child was lured onto a property by some type of attractive condition (like a pool or trampoline). Under the doctrine, homeowners in California could be liable for injuries caused to children that trespassed on their property because of the luring condition.

But in 1970, a California court removed the attractive nuisance doctrine from California law. The specific court case was Beard v. Atchison.

Did any laws replace the attractive nuisance doctrine in California?

Under current California law, there is no special instructions for homeowners regarding trespassing children.

Rather, California property owners now have a general duty to keep their property in a reasonably safe condition. This duty applies to things like pools, ponds, and other luring conditions. The duty also requires homeowners to warn others of dangers on their land that might not be readily apparent.

If a property owner fails in these duties, then they can be liable to any person that is injured on the property due to the dangerous or unsafe condition.

A main impact of these new rules is that homeowners are now encouraged to make a regular inspection of their property to check for any dangerous conditions – and warn others of them if they are present.

If a party is injured on a person's property, and a suit is filed against the owner, then the case is ultimately resolved by a court determining if the owner took reasonable care to inspect and warn of any unsafe conditions. This determination is made by looking at all of the facts involved in the case, including:

  • the injured person's intentions in visiting the property,
  • whether the property was surrounded by a fence,
  • any history of people getting injured on the land,
  • if a pool is involved, whether the pool is above ground or below ground,
  • the homeowner's actions in inspecting the property, if any,
  • the cost of repairing an unsafe condition, and
  • the obviousness of the dangerous condition.

What is premises liability and how much has the law changed since 1970?

The attractive nuisance doctrine, and a homeowner's potential liability to people on their land, are part of the area of the law known as “premises liability.”

This term refers to laws that typically come into play in personal injury cases where the injury was caused by some type of unsafe or defective condition on someone's property.

In many states (and under former California law), the major factor in determining whether a person's property was kept in a reasonably safe condition is how foreseeable it was for the visitor to be there. The laws in these states recognize three types of visitors, each of whom is entitled to a safer environment. These include:

  1. trespassers – or, people who are on the premises without the permission or invitation of the owner. Property owners only have a duty to not willfully cause a trespasser harm.
  2. licensees – or, people who are on the property for their own purposes and with the express or implied consent of the owner. Property owners cannot willfully cause a licensee harm and have to warn a licensee of non-apparent dangers.
  3. invitees – or, people who are on the property with the owner's invitation and for the owner's financial benefit. Property owners have to look for dangerous conditions and either fix them or warn invitees about them.

As to trespassers, it's apparent that they are given the least amount of protection under the law than other types of visitors. But, under the attractive nuisance doctrine, the law carved out special protection to children trespassers. And, as stated above, homeowners could be liable to this group if there existed on their land some type of condition that children might find compelling to explore or investigate.

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).

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