Attractive Nuisance Law in Massachusetts

By Breakstone, White & Gluck | November 8, 2023

With the summer months feeling hotter and hotter, pools are a delightful respite from the heat. If you’re lucky enough to have a pool on your property, then you’ve likely already taken a few dips. It is important, however, that you understand the responsibility that comes with having a pool. Pools have a unique appeal, particularly during hot summer days, drawing the curiosity of children who may not fully comprehend the risks involved. Tragically, unattended or poorly secured pools can become hazardous environments, leading to accidents such as drowning or severe injuries. Understanding the concept of attractive nuisance and recognizing the dangers associated with pools is crucial for property owners to take appropriate measures to prevent accidents and ensure the safety of children in their vicinity.

What is an attractive nuisance?

An attractive nuisance refers to a hazardous situation present on a property that has the potential to attract children and pose a significant safety risk to them. The classification of certain features or properties as attractive nuisances depends on the specific circumstances of each case. Swimming pools are the most common attractive nuisance for children. An old tree house or an old rope swing would be other examples of attractive nuisances.

What are the laws concerning attractive nuisances in Massachusetts?

According to Massachusetts state law M.G.L. c. 231, § 85Q, a landowner who maintains an artificial condition on their property can be held responsible for physical harm caused to trespassing children under the following conditions:

  • The landowner is aware or has reason to believe that children are likely to trespass on the specific area.
  • The condition is known or should be known by the landowner, and it presents an unreasonable risk of severe bodily harm or death to the children.
  • Due to their young age, the children are unable to discover the condition or comprehend the risks associated with interacting with it.
  • The landowner’s interest in maintaining the condition is minimal compared to the potential risk it poses to children.
  • The landowner fails to take reasonable measures to eliminate the danger or protect the children in any other appropriate manner.

If a visitor or invitee is injured due to an attractive nuisance on their property under these circumstances, then the landowner can be held liable for the accident.

What is the duty of care that the landowner owes?

In premises liability cases, the level of duty of care owed by a property owner largely depends on the status of the visitor. Visitors can be categorized into two main types:

  • Invitees. This refers to individuals or customers who are invited to the property for business purposes or as members of the general public. This category also includes friends, acquaintances, or individuals invited for social visits. Property owners owe invitees a duty of reasonable care to inspect, identify, and eliminate hazards, and to keep their properties reasonably safe.
  • Trespassers. Trespassers are individuals who enter the property without permission. The duty of care owed to trespassers is generally low. Property owners cannot set traps, and if it is known that there are occasional trespassers, there is a duty to warn them about known dangerous conditions.

However, when an attractive nuisance is present on the property, the property owner owes a duty of care to any trespassing children. In such cases, property owners are required to essentially treat these children as invitees and actively take steps to prevent harm. If a child is injured while trespassing to access an attractive nuisance, the law will consider them as invitees for legal purposes.

Drowning and other catastrophic injuries from pool accidents

According to the Centers for Disease Control and Prevention, “in the United States more children ages 1–4 die from drowning than any other cause of death. For children ages 5–14, drowning is the second leading cause of unintentional injury death after motor vehicle crashes.” Owners of pools have a duty to prevent unauthorized access to pool areas using proper fencing and proper locks and latches.

Every year, there are 4,000 fatal unintentional drownings— an average of 11 drowning deaths per day. Additionally there are 8,000 nonfatal drownings—that is an average of 22 nonfatal drownings per day.

It is clear that drowning is the most common and deadly accident when it comes to children and pools. Other injuries that can be sustained in or around swimming pools include:

How can an attorney help me if my child has been hurt due to an attractive nuisance?

Breakstone, White & Gluck is committed to providing comprehensive legal assistance if your child has suffered an injury due to an attractive nuisance, especially a pool. From the outset, our experienced attorneys will conduct a thorough evaluation of your case, examining the circumstances surrounding the incident and assessing the liability of the property owner. We will gather essential evidence, including photographs, witness statements, and property records, to build a strong case that highlights the property owner’s negligence.

In cases involving attractive nuisances like pools, expert consultation plays a significant role. We will consult with safety experts, engineers, and medical professionals who can provide valuable insights into the incident, evaluate the property’s compliance with safety regulations, and offer expert testimony if necessary. Armed with a compelling case, we will engage in negotiations with the responsible parties, aiming to secure fair awards that take into account medical expenses, pain and suffering, emotional distress, and any long-term consequences of the injuries. Our dedicated legal team is prepared to take your case to trial if a satisfactory award cannot be reached, providing strong representation in the courtroom.

Throughout the legal process, we understand the emotional toll this experience can have on you and your child. Our compassionate attorneys will provide unwavering support and guidance, addressing your concerns and ensuring that you feel heard and understood. Your child’s well-being is our priority, and we are here to fight for justice while seeking the maximum compensation possible. To schedule a free consultation, call us at our office in Boston at 800-379-1244 or 617-723-7676, or use our contact form. Let us help you navigate the complexities of the legal system with empathy and experience.

Posted in Personal Injury