Attractive Nuisance Doctrine & Premises Liability in Alabama

May 7, 2014 - Premises Liability by Cross & Smith

Premise liability law is founded upon the principle that a property owner (or manager) has a responsibility to maintain a property in a safe manner for those who enter. The duty owed by the property owner to those on site depends on the relationship. For example, the owner of a property open to the public would owe to a patron is far greater than a private property owner would owe to a trespasser.

For the most part, Tuscaloosa premises liability lawyers recognize that trespassers aren’t entitled to many protections, except in cases of injury caused by willful or wanton negligence. The one notable exception is attractive nuisance. This legal theory alters the duty that is usually owed by a property owner to a trespasser or licensee for the simple fact that the “visitor” is a child drawn to the property by a hazard.

A perfect example of this is a swimming pool. This not only poses a serious potential danger, it’s one a person could reasonably expect would be considered an attractive place to play. In order for a liability lawsuit to be successful, the owner must know a dangerous condition exists, the child must not know or recognize the danger and the child must not receive proper warning of the danger.

Swimming pool injuries among children are of especially great concern as we approach summer, and more people are taking down pool gates and keeping their pools accessible.

A swimming pool injury lawsuit in Maryland may result in damages awarded to the family. The case had to go all the way to the state’s high court before it was allowed to proceed at the trial level. In the case of Blackburn Ltd. P’ship v. Paul, a 3-year-old boy suffered permanent brain damage after nearly drowning at the pool in the apartment complex where his family lived.

He had been playing with his 10-year-old brother when the older boy lost sight of him. By the time his mother checked the complex pool area, the boy had been in the pool for several minutes. Lifeguards, who had just arrived, pulled the boy out and began to perform CPR on him.

The boy survived, but is now unable to perform many basic tasks on his own.

His mother sued the owner of the apartment complex, as well as the property managers and the pool maintenance firm, alleging negligence and negligence per se, and seeking compensatory damages in the amount of $15 million. She alleged that the defendants had a responsibility to maintain the pool in a reasonably safe condition, especially for children of all ages, and that the defendants failed this by not complying with state statutes set forth for pool regulations. These regulations define construction standards, disinfection standards and minimum criteria for basic care and maintenance of public pools and spas. She also alleged violation of local pool ordinances.

Lower courts in the state initially ruled in favor of the defendants, holding that because the boy was a trespasser (as he was an unsupervised minor in the pool area where the gates were locked and no lifeguards were present) the defendants did not owe as great a duty of care to him. The defendants had argued, successfully at first, that the boy’s unsupervised play was the superseding cause of his injuries.

However, that ruling was reversed by the Maryland Court of Special Appeals, which disagreed with the lower court’s and instead found that state laws do not apply to the pool in question because it had been built 20 years before the law was passed.

Further, the high court determined that the lower court had erred in finding that the property owners owed no duty to the child, even if he were a trespasser (per the attractive nuisance doctrine) and furthermore, the violation of state law and local ordinance in and of itself was basis enough for a claim.

As such, the plaintiff will be allowed to move forward with her claim.

Additional Resources:

Blackburn Ltd. P’ship v. Paul, April 28, 2014, Maryland Court of Appeals