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Attractive Nuisance and Serious Premises Injuries

Sometimes, property owners choose to erect potentially dangerous structures on their own property. Some examples could include pools, tree houses or ramps. While this is certainly their right, it does not come without responsibility. The decision to create such hazards carries with it a legal obligation to take steps to protect others, even trespassers, from suffering harm as a result.

It may seem counterintuitive to suggest that a property owner can be liable to a trespasser who comes on to his or her property without permission and suffers a serious injury. In most cases, that instinct is correct and the law creates little or no duty between property owners and trespassers. However, one special exception — often called attractive nuisance — does create a set of circumstances under which a property owner can be liable to a trespasser.

Attractive nuisance does not exist in our state’s statutes but was adopted by the Georgia courts through case law. It applies only when all of the following elements are met:

  • The property owner knows or should know that a dangerous artificial condition exists in a location where children are likely to trespass.
  • The property owner knows or should know that the dangerous condition creates an unreasonable risk of serious injury or death to those children.
  • The children fail to appreciate that risk due to youth and inexperience.
  • The utility the condition provides and the burden of eliminating the danger are slight compared to the risk it creates.
  • The property owner fails to take reasonable steps to eliminate the danger.

Courts are often hesitant to apply the doctrine of attractive nuisance because of the infringement it creates upon property rights. However, it has been upheld in numerous cases, especially in more densely populated residential areas where trespassing children are generally more foreseeable. An experienced Georgia premises liability attorney can examine your case to determine if attractive nuisance could apply.

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McMenamy Law is located in Atlanta, GA and serves clients in and around Atlanta, Decatur, Scottdale, Clarkston, Tucker, Avondale Estates, Pine Lake, Stone Mountain, Smyrna, Marietta, Mableton, Roswell, Conley, Austell, Lawrenceville, Forest Park, Dekalb County, Gwinnett County, Fulton County, Cobb County, Rockdale County, Cherokee County, Douglas County, Clayton County and Henry County.

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