A reader commenting on last week’s blog about giving horses the benefit of the "one free bite" rule mentioned attractive nuisance laws as the other side of the coin, a way to impose liability for injuries to careless children. "Attractive nuisance" sounds like a contradiction in terms. How can something that’s attractive, like a painting or a sunset also be a nuisance? And what does it have to do with horses?
The phrase is legal shorthand for an important principle that imposes liability on a property owner for injuries caused by a dangerous condition (possibly including horses) on the land. The answer to the attractive nuisance question depends on several things: Was the injured person an adult or a child? Was the injured person trespassing? Did the horse have a history of so-called "dangerous propensities" such as kicking or biting? Do state courts recognize the attractive nuisance doctrine?
Land owners have a legal duty to exercise reasonable care to safeguard people on the property with permission or by invitation. If someone is on the property without permission, on the other hand, the land owner generally has a very limited duty of care and usually no liability if the trespasser is injured. An important exception in many states involves dangerous conditions that are likely to lure uninvited children onto the property. The idea behind the exception is that children cannot recognize potential hazards because of their age and are entitled to protection by the land owner who has more control of the dangerous—and attractive—condition.
The definition of "attractive nuisance" probably should include a photograph of a horse grazing in a field. It is difficult to imagine anything more likely to lure a trespassing child into the field than a horse and it is reasonable to expect the child either to be unaware of the potential danger, or to ignore it and climb the fence anyway. If the trespassing child is hurt, and if the horse fits the legal definition of an attractive nuisance, the land owner may be liable for the child's injuries.
Whether horses are attractive nuisances can be a difficult question. Laws differ from state to state and relatively few courts have addressed the issue. Twenty years ago, the Kentucky Supreme Court ruled that the owner of a small farm situated near two subdivisions was not responsible for injuries suffered by a trespassing child who was kicked in the head and severely injured. The land owner had tried and failed to keep children out of the field where horses were kept and the cost of making the land inaccessible to children was judged by the court to be prohibitive. Faced with a similar situation a few years later, a Louisiana court followed the Kentucky decision.
The trend, if there is one, seems to be this: horses and other domesticated animals are not automatically classified as attractive nuisances and the principle generally does not apply to animals without a history of dangerous propensities. This is all a moot point if your state does not have an attractive nuisance statute.
The subject of last week’s blog was a Connecticut court decision dismissing a personal injury lawsuit by the parents of a child who was bitten on the cheek by a horse. The child was not a trespasser on the farm and the attractive nuisance doctrine would not apply anyway. After commenting that Connecticut does not recognize the attractive nuisance principle, the court suggested that similar results might be reached applying negligence law.
Land owners never should ignore the potential risks created by horses, even if state courts decisions say that gentle horses are not attractive nuisances for trespassing children, and even if the state does not recognize the doctrine at all. Successfully defending a personal injury lawsuit is better than losing one, but staying out of court in the first place always is the best option.
Is it fair to land owners for the law to give trespassing children special consideration if they are injured by a horse?