Attractive nuisance

The attractive nuisance doctrine provides that where the owner or occupier of land brings or artificially creates something which, from its nature, is especially attractive to children, he is bound to take reasonable pains to see that the dangerous thing is so guarded that children will not be injured in coming into contact with it. The doctrine is designed to protect children who are unable to appreciate the risk posed by the object, examples of which include swimming pools, trampolines and abandoned cars.  (See, i.e., Henson ex rel. Hunt v. International Paper Co., 374 S.C. 375, 381, 650 S.E.2d 74, 77 (2007).)

Whether a dog can be considered an “artificial condition” for the purposes of determining a property landowner’s liability under the attractive nuisance theory is an interesting issue. A number of states that have determined that dogs and other domesticated animals cannot be considered an artificial condition. (See Hartsock v. Bandhauer, 158 Ariz. 591, 764 P.2d 352 (Ariz. App. 1988) (dogs are not considered an “artificial condition” as required for liability under the attractive nuisance doctrine); Aponte v. Castor, 155 Ohio App.3d 553, 802 N.E.2d 171 (Ohio App. 2003) (finding no authority in Ohio law that establishes a horse is an artificial condition); Gonzalez v. Wilkinson, 68 Wis.2d 154, 227 N.W.2d 907 (Wis. 1975) (a dog cannot qualify as an attractive nuisance because “[a]lthough such a condition need not be permanently erected upon the land, it must be ‘artificially construed.'”); Clea v. Odom,  714 S.E.2d 542, 394 S.C. 175 (2011)). 

Attorney Kenneth Phillips has represented children who were injured by a dog sitting on its owner’s front lawn “behind” an electronic containment system (i.e., a so-called “electric fence”). Such a device is clearly an artificial condition. It creates an illusion that the dog will remain contained on the owner’s property, and that if the dog is approached it will not bite because it appears calm when in fact it is remaining in place because it does not wish to receive a shock. Each of Phillips’ cases was settled favorably for the injured child.