Construction Law: The Attractive Nuisance Doctrine
Take Precautions to Save Yourself & Others
by Trent Cotney, Cotney Attorneys & Consultants
(Editor’s Note: Trent Cotney, CEO of Cotney Attorneys and Consultants, is dedicated to representing the roofing and construction industries. Cotney Construction Law is General Counsel for the Western States Roofing Contractors Association and several other industry associations. For more information, contact the author at (866) 303-5868 or go to www.cotneycl.com.)
The attractive nuisance doctrine is a concept arising from negligence and premises liability. Generally speaking, an attractive nuisance is something on real property that may entice children to enter your property and potentially be harmed by the nuisance. Not all states recognize the doctrine, but most states have a comparable theory of liability. Therefore, a property owner aware of an attractive nuisance must take precautions to protect children from it.
What are attractive nuisances? They can include swimming pools, wells, equipment or machinery, or dangerous animals. In some cases, even rooftops have been considered attractive nuisances if the owner knows that children like to climb on the roof.
To protect themselves from liability, a property owner should try to eliminate attractive nuisances or otherwise prevent children from obtaining access to the nuisances by installing fencing or other measures to prevent access. Property owners can also use signs or warn children and lock up areas that may contain attractive nuisances. However, remember that a sign may not be enough to prevent liability under the attractive nuisance doctrine, especially if the child is too young to read. Furthermore, suppose the owner is aware of a child playing with a particular piece of equipment or entering their property. In that case, that knowledge element may lead to liability under the attractive nuisance doctrine.
For roofing contractors, it is crucial to address the causes giving rise to the attractive nuisance doctrine in the contract documents between the roofing contractor and the owner. The contract should clearly define its responsibility to maintain the construction site during construction. In other words, it needs to be defined who will control the jobsite during construction. It is often challenging to fence off the entire construction area on residential projects. However, roofing professionals can secure ladders left on jobsites, take precautions to remove exposed materials, and check for nails daily, among other things. Furthermore, the foreman or safety person should make sure to keep children, pets, and others away from the jobsite during construction.
