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A Guide to Attractive Nuisances
As summer approaches, people start looking forward to spending time outdoors. Children especially get excited about playing outside. While parents should be encouraging their children to be active, it is important to be aware of the potential dangers they could face in their outdoor environments, especially in the summertime. In fact, the National Safety Council indicates that more preventable, accidental deaths happen during the two months of July and August each year than during any other two-month period.
Without exception, the accidental injury or death of a child would be devastating to any family. To make matters worse, the civil and legal implications of a child’s accidental injury or death would compound the resulting trauma if the child was on a neighbor’s or business’s property.
Children and adults who trespass are not treated the same. As personal injury lawyer Guy S. DiMartino told Nationwide.com, “Children under the age of six or seven (depending on the state) can’t be considered negligent because of their age.” As a result, the property owners themselves can be held liable if a child were to trespass and get injured on their property, which is why it’s important to be mindful of any attractive nuisances you may have on your property, what kinds of dangers they pose and ways to mitigate risk and create a safer environment for everyone, whether it’s for your own children, guests, neighbors or even strangers.
On the other end of the equation, it is also important to properly educate yourself and your family to make sure everyone understands what to watch out for and how to remain safe, so they do not find themselves at risk on someone else’s property.
What is an attractive nuisance?
An attractive nuisance is a feature on a property that could attract the attention of a child, lure them in and then possibly lead to their harm. If your property contains things like treehouses, swing sets, swimming pools, fire pits, fountains or trampolines, these are considered attractive nuisances, and there are liability risks you need to consider.
Attractive nuisances are considered a premises liability. An attractive nuisance doctrine exists under premises liability law and refers to the set of laws that make landowners responsible for certain injuries suffered specifically by children who are present on the premises, even if trespassing. The attractive nuisance doctrine was put into place because children don’t always have the ability to differentiate between conditions that could be harmful to them and conditions that aren’t. Therefore, it’s the responsibility of the property owner to protect children when they have an attractive nuisance on their property.
While there are dangerous conditions all around us in our natural world (children can climb trees and get hurt), an attractive nuisance is something that is artificial. So, if a child was lured onto your property because of the temptation to climb a tree on it, the tree would not be considered an attractive nuisance and injuries suffered from a fall would not be your responsibility. However, if the same thing happened on a treehouse structure, the treehouse would be considered an attractive nuisance, and injuries suffered from the fall could be your responsibility.
How does it affect my homeowners insurance?
Homeowners insurance agents take a look at a variety of things to determine rates. Certain features of a home and property can impact rates because of their degree of danger. The higher the chance that someone could get injured on a policyholder’s premise, the higher the homeowners insurance rates will be.
Specifically related to attractive nuisances, you will need to disclose if you have one or more on your property when you seek out a homeowners insurance policy. There’s a strong likelihood that nuisances will increase your rates, but, if you don’t disclose them, you risk the possibility of rejected claims. According to the Insurance Information Institute, most standard homeowners policies provide between $100,000 and $300,000 in liability coverage per incident. Generally, that’s adequate for attractive nuisances, but, to be safe, always check with your agent.
Kid and family safety
In order to avoid the risk of injury or death because of attractive nuisances, it is also important to prepare your family and your children for the dangers they will face outside of the home.
One way to do this is to provide sufficient supervision over all children on your property, including visitors. Supervision is also needed over children when they are exploring their larger environment, such as their neighborhoods or nearby recreational areas.
A second way to avoid the risks of attractive nuisances is by educating your children about the potential outdoor dangers in your home’s proximity and providing them with the information they need to keep them away from things that could harm them.
For example, you could do a practice walk-through with your children in the areas they normally explore, keeping an eye out for attractive nuisances. Through this lens, you may become more aware of what could dangerously attract your children. Is there a construction site on their way to or from school? Is there a fountain or pond in one of your neighbor’s front yards? Is there a rusty play structure peeking out from behind an unfenced backyard? Teach children to stay away from these areas. Children can help to protect themselves from the world around them when they are taught to identify and avoid dangerous situations.
An attractive nuisance can also have more severe consequences — leading to a child being seriously injured or worse. As such, it’s important to put precautions in place if you know that children will be present.
Pools, hot tubs and water features
When we think of homeowners insurance, we think of two different types of coverage. One is covering costs associated with damage that may occur on the premises and the other is covering costs associated with injuries that may occur on the premises (called liability coverage). Liability coverage for your pool or hot tub means that the insurance company will help pay for things like bodily injury, medical expenses and legal fees if a guest is injured in your pool or hot tub.
Liability protection is included as a standard feature in a typical homeowners policy, but because pools and hot tubs can increase your liability risk, it’s a good idea to consider increasing your coverage.
A personal umbrella policy, for example, is something you can purchase on top of your standard homeowners policy. The reason you may consider this is if you own a pool and you’re looking for added liability protection. An umbrella insurance policy provides liability coverage beyond the coverage limits of your homeowners policy and begins when you’ve used up the required underlying insurance amount of your homeowners policy.
By choosing appropriate insurance coverage and limits, you will have the peace of mind that comes with knowing you have protection in place just in case something unexpected occurs.
Drowning is the leading cause of unintentional deaths in the world, with 372,000 drowning deaths reported annually. In the U.S., an average of 3,536 people died from drowning annually from 2005 to 2014, which equates to 10 deaths each day. According to the Centers for Disease Control and Prevention, drowning is the number one cause of unintentional death for children between the ages of 1 and 4.
Additionally, there are thousands of others who suffer swimming pool-related injuries each year. The U.S. Consumer Product Safety Commission reported that there were an estimated 6,600 pool or spa-related hospital emergency room-treated injuries each year from 2016 through 2018, and 363 pool or spa-related drownings reported per year between 2014 and 2016 that involved children under the age of 15.
Here are some additional statistics about swimming pool accidents and drowning deaths among children in the U.S.:
- Nearly two-thirds of drowning deaths each year occur in the summer months (May through August).
- The majority of fatal pool drownings occur in children under 5, and mostly in backyard pools.
- Children ages 1 and 2 are most at risk of drowning in a pool.
- Boys are twice as likely to drown in a pool-related accident than girls.
- Lack of supervision (meaning the child is not within arm’s reach) is the number one cause of fatal pool drownings.
- 47% of the pool drownings between 2005 and 2014 were because at least one physical barrier, such as a fence or gate, failed in preventing the child from gaining access to the pool.
In addition to having the proper homeowners insurance coverage, it’s also a good idea to take safety precautions to help keep your pool secure and prevent injuries. If you have an in-ground pool, it should be enclosed by a fence that’s at least five feet tall, with latching features on all gates that surround the pool. If there’s no fence, it should be covered by an automatic safety pool cover. This will prevent trespassers from getting into the pool when you’re unaware.
If you have an above-ground pool, it’s recommended to have latching gates at any deck steps that lead to the pool. If there is not a deck, the ladder leading to the pool should be stored away when it is not in use.
If you have a hot tub, secure a cover and make sure no water collects on top of the cover.
For either hot tubs or pools, make sure you remove toys to prevent the risk of a child falling into the water while trying to get hold of a toy. Also, keep children away from hot tub drains. The suction can pull hair or other body parts toward it.
If you have a retention pond or other water feature, it is a good idea to post “No Trespassing” signs.
Fire pits, grills and gas fireplaces
Similar to water features, if you are considering adding a fire pit or gas fireplace to your property, or already have one, it’s a good idea to review your current policy’s liability coverage. This coverage may help protect you if you are found legally responsible for a guest or child trespasser’s injuries after getting too close to the flames.
There has been an increase in the popularity of fire pits over the past several years. Among the top outdoor design features, fire pits rank number one. However, children are a particularly vulnerable population when it comes to burn injuries. In fact, according to an American Burn Association report, in 2015, unintentional fire or burn injuries were the fifth leading cause of injury-related deaths among children ages 1 to 4 in the U.S. (and the third leading cause for the 5 to 9 age group), and almost one quarter (24%) of all burn injuries happen in children younger than 15 years of age.
It seems there is a correlation between the increase in backyard fire pits and the increase in injuries suffered from them. At least 5,300 injuries related to fire pits or outdoor heaters were treated at emergency rooms in the U.S. in 2017, which is nearly triple the 1,900 injuries reported in 2008.
Injuries can happen from grills as well, with an average of 8,500 burns resulting from grill fires treated in U.S. emergency rooms every year.
The National Fire Prevention Association offers the following tips for fire pit safety:
- Check with your local fire department to be sure fire pits are allowed in your area.
- Children and pets must be supervised at all times. Instruct children to stay 10 feet from the fire at all times.
- Make sure to alert children of the fire every time it’s lit and remind them of the safety rules.
- Be sure to properly extinguish the fire with all of the necessary tools.
- Be sure children are aware of that fire pits can continue to be hot into the next day
- If someone suffers a moderate burn, use cool, not cold, water on the burn for three to five minutes, then cover with a clean dry cloth. For serious burns, go to the hospital right away.
- Make sure to build fires 10 to 20 feet away from any tree or structure, like a garage or shed.
- Store a fire extinguisher, hose, and fire blanket nearby.
- Don’t light fires on windy days.
Additionally, it is a good idea to make sure you prepare a gas line cutoff and disable or secure your ignition source.
Trampolines, swing sets and tree houses
Just like with other attractive nuisances, if you’re thinking about buying a trampoline or a swing set, or are considering building a treehouse, it’s a good idea to read your homeowners insurance policy or contact your insurance agent. Be sure to understand your policy’s terms and conditions regarding coverage.
Coverage for outdoor play equipment like trampolines, swing sets and treehouses is generally handled in one of three ways: no exclusions, exclusions or coverage with safety precautions. “No exclusions” means that a homeowners insurance policy doesn’t put restrictions on the ownership or usage of the outdoor play equipment. For example, if a visitor or guest is injured while bouncing on your trampoline and you’re found responsible for their medical bills, the liability coverage in your homeowners policy may help cover the costs.
“Exclusions” would mean that your policy would not provide protection if your trampoline, swing set, treehouse (or other attractive nuisance) were specifically excluded from your policy. “Coverage with safety precautions” means your homeowners insurance may provide coverage for the attractive nuisances like trampolines on your property, but only if you have certain safety precautions in place.
It’s also important to pay attention to the coverage limits in your homeowners insurance policy. A coverage limit is the maximum amount your insurer will pay toward a claim that is covered. Even if your insurance offers coverage for trampolines or treehouses, you’ll want to make sure the coverage limits are suitable for you. If you’re looking to increase coverage for treehouse- and trampoline-related injuries, one way is through a personal umbrella policy, which would provide you with additional liability coverage above the limits of your homeowners insurance policy — usually up to $1 million. Your agent can help you change your coverage limits or help you decide if additional protection is the right decision.
Around 20% of injuries to the spinal cord caused by trampoline use are due to jumpers bumping into each other, trying to do stunts, falling off the trampoline or falling onto the frame or springs of the trampoline.
In 2006, trampolines caused an estimated 109,522 injuries. Of those injuries, children from 4 years old and younger sustained an estimated 15,541 injuries and children ages 5 to 14 sustained an estimated 71,265 injuries.
Treehouses can also be dangerous if not approached safely. Medical researchers in Ohio published statistics showing that in the United States, 2,800 children a year are hurt in treehouse-related accidents. The injuries included bruises, broken bones and other minor injuries, yet all were serious enough to send the children to the emergency room.
Playground related injuries account for about 200,000 emergency room visits a year from children ages 14 and younger, and on home playgrounds, swing sets account for the most injuries.
There are some simple precautions to follow in order to keep visitors safe on trampolines:
- Only one person at a time should jump on the trampoline.
- No somersaults.
- Always keep the trampoline springs covered with padding.
- Do not place the trampoline near trees or other structures.
- Only allow children 6 and older to jump on a full-sized trampoline, and supervise all children on trampolines.
- Place an enclosure (such as a net) around the trampoline to prevent falls to the ground.
- Do not leave a ladder near the trampoline when it is not being supervised.
- Inspect trampolines regularly for tears, rust and detached springs or pads.
There are also some techniques anyone can use to lessen the chance of treehouse injuries:
- Build the treehouse 10 feet or less from the ground.
- Add several inches of soft mulch around the base of the treehouse as a cushion.
- Use solid, 38 inch-high barriers and guardrails.
Other precautions include ensuring the property with the treehouse is fenced in, making the ladder leading to the treehouse removable or adding a gate with locks to the ladder.
For swing set safety, placing a fence around the swing set, or any play equipment you may own, is always advised. If children can’t access the equipment, they can’t get hurt on it. Otherwise, supervision is key.