The Attractive Nuisance Doctrine in Washington

Attractive nuisance is a rule that can make a property owner pay for a child's injuries even though the child was never invited onto the property. It applies when a young child is drawn onto the land by something dangerous and gets hurt by it. The danger has to be something a person put there or built, like a pool, a piece of equipment, or an open trench, and not a natural feature of the land.

Attractive nuisance exists because of how little a property owner normally owes to someone who comes onto the land without permission. Washington's Supreme Court has held that an owner owes a person in that position almost nothing, and only has to avoid hurting them on purpose or through reckless disregard. Applying the same rule to a six-year-old struck the Supreme Court as wrong, so it made an exception, and when your child's case fits the exception, the owner is held to ordinary care and had to take the precautions a reasonable person would take to keep a child from getting hurt.

Elements of an Attractive Nuisance Case in Washington

Generally, the following need to be proven before a property owner is held to ordinary care toward your child:

1. Something on the property was dangerous by its nature and likely to injure a child who came into contact with it.
2. The danger was attractive or enticing to young children.
3. Your child was too young to comprehend the danger.
4. The danger was left unguarded and exposed where young children went, or could reasonably be expected to go, to play or out of curiosity.
5. Preventing children from reaching the danger, or making it harmless, was practical and would not have obstructed any reasonable use of the property.
6. The owner knew about the danger, or had reason to know, and had reason to know that children were likely to come onto the property.

Element five is easy to overlook. Fencing a pool, covering an open trench at the end of the day, or taking the door off an unused freezer costs an owner very little and stops none of the things the owner does with the property. An owner who says securing the danger was impractical has to explain what reasonable use a fence or a cover would have interfered with.

Proving the Owner Knew About the Danger

Element six is simple when the owner created the danger, because an owner who dug the trench or put in the pool knew it was there.

Proving element six gets harder when somebody else left the hazard behind. An owner has no duty to go looking for problems on the property, and the Supreme Court has refused to assume an owner knew about a danger nobody ever reported. Your case then depends on showing how the owner found out, which can come from:

• A complaint from a neighbor or another parent
• A call to police or a city code enforcement office
• An earlier injury at the same spot
• A tenant, an employee, or a contractor who raised it with the owner

Examples of Property Conditions That Draw Children

• Swimming pools, hot tubs, and decorative ponds with unsecured or absent fencing
• Construction sites left open after hours, including excavations, trenches, and partially framed structures
• Machinery and equipment stored where children can reach the controls
• Discarded appliances with doors that latch from the outside
• Abandoned or unsecured buildings, including boarded structures with a broken entry point
• Piles of stacked material that can slide or collapse
• Uncovered wells, shafts, vaults, and cisterns

Your child's situation does not have to appear on a list like this one. What decides the case is whether the six elements are met, and a danger nobody has written about before counts the same as a swimming pool. It also helps if a law or a city code required the owner to secure the danger, as Washington does for unused refrigerators and freezers left where children can reach them, because an owner who broke an actual law will have a hard time arguing nobody could have foreseen the harm.

Ponds, Lakes, and Other Open Water

Drowning cases work differently in Washington. A natural body of water is not an attractive nuisance, and neither is a man-made one that has the characteristics of a natural body and holds no hidden dangers beyond what any body of water has. A pond somebody dug or graded still falls under the rule, and a raft floating on the surface does not change the answer.

Washington's Supreme Court gave three reasons:

• The danger of drowning is apparent and easy to avoid
• A child too young to appreciate the danger can be expected to be watched by a parent or another adult
• Draining, filling, or fencing every pond in the state would put an unreasonable burden on owners

Hidden Dangers in the Water

A danger a child would not expect in the water can then open the door to an attractive nuisance case, because the rule only covers water holding nothing beyond what any body of water normally holds. Examples of a hidden danger:

• Submerged machinery
• An engineered drop-off, where the bottom falls away sharply
• An intake or outflow structure that pulls a swimmer under
• A defect concealed by something floating on the surface

Children Who Had Permission to Be There

Washington's rule about ponds and open water applies to children who were trespassing. If your child had permission to be where they were, the rule may not apply at all.

A child drowned in a creek running through a mobile home park where the family rented, and the landlord argued the open-water rule barred the case. Washington's Supreme Court rejected the argument and held that the rule for ponds and other open water belongs to attractive nuisance cases and does not apply where the injured child was an invitee.

A child is treated as an invitee in situations like:

• A common area of an apartment complex or mobile home park where the family rents
• A pool or waterfront a business or club opens to guests
• A store, restaurant, or other business open to the public

Activities on the Land

Washington recognizes one more duty, tied to what the owner was doing rather than what was on the property. Where activities are carried on by the possessor of land, the possessor owes a duty of reasonable care not to injure a child whose presence the possessor or the possessor's employees are aware of, regardless of whether the child had permission and even where no attractive nuisance is present. Equipment being operated, a vehicle being backed up, or work being performed while a small child is known to be nearby falls under ordinary negligence, and none of the six elements have to be proven.

Age of the Child

Attractive nuisance is for young children, and your child has to have been too young to understand the danger. Washington has never set a cutoff age. The older your child was, the harder it gets to prove.

Age by itself does not decide it, the specific danger does. A seven-year-old probably knows a pond is deep. The same seven-year-old has no idea what a partially collapsed trench wall can do.

A Child's Own Carelessness and Its Effect on Recovery

Most parents want to know if their child being careless will sink the case, sometimes because an insurance adjuster brought it up.

Washington follows pure comparative fault. RCW 4.22.005 provides that contributory fault chargeable to the person bringing the case reduces compensatory damages proportionately but does not bar recovery. A child found partly at fault still recovers, with the award reduced by the assigned percentage.

Deadlines for Bringing a Child's Injury Case in Washington

Washington gives you three years to bring an injury case. When the injured person was under eighteen, the years spent as a minor do not count toward the three. How the two work together depends on who is bringing the case and who the property owner turns out to be, so ask a lawyer about your own dates.

Filing your case sooner than later is always a good idea. Property owners fix things. The fence goes up, the trench gets filled, the freezer gets hauled off, and the condition your case depends on is gone. A photo taken the week it happened proves what a description years later cannot.

Working With Freeman Law Firm After a Child Is Hurt on Someone Else's Property

Attractive nuisance cases are decided by details that seem unremarkable when they happen, like whether the gate latch was already broken, how high the fence stood when somebody measured it, whether the owner had chased children off the property before, and whether anyone had already complained to the city about the danger.

If your child was hurt on property belonging to someone else, contact the premises liability lawyers at Freeman Law Firm today for a free, no obligation consultation by calling (253) 383-4500 or sending us an email.