The “Attractive Nuisance” Doctrine in Texas
Tragically, five Houston-area children drowned accidentally in one week in August. The national statistics are frightening: according to the Centers for Disease Control and Prevention (CDC), drowning is the number one cause of accidental death for children between the ages of one and four. The U.S. Consumer Product Safety Commission says an average of 390 child deaths a year are caused by drowning in a swimming pool or spa. Texas, along with Florida, currently leads the nation in swimming pool drowning deaths (21 in 2017, two states with long coastlines and many water attractions.
A swimming pool is an example of what Texas law calls an “attractive nuisance.” The Attractive Nuisance Doctrine is part of the state’s premises liability laws. It means that a property owner may be held liable for injuries to children who trespass on land with hazards like swimming pools, construction equipment, or deep pits, if the injury results from a hazard that is likely to attract children too young to understand the risks. The attractive nuisance doctrine applies to humanly created objects or conditions. Injuries caused by natural conditions on the property are excluded.
According to the Real Estate Center at Texas A&M University, “According to case law, a landowner’s liability, or responsibility, for anyone entering the property depends on the legal classification of the person at the time of the injury.” The relevant classification under the Attractive Nuisance Doctrine is a trespassing child unaccompanied by an adult.
The Texas Department of Family and Protective Services publishes tips to help protect children who are by nature curious and attracted to all kinds of places and things that may be potentially dangerous, i.e., attractive nuisances. It advises:
- Designate an adult to watch children around water who knows CPR and has a phone to call 911.
- Protect small children from pools, ponds or riverbanks by having multiple barriers to their access, such as pool covers, gates and fences.) Remove all toys from pools, and ladders from aboveground pools.
- Make sure children can’t get out to a pool or water source through a dog door, and consider installing a pool alarm.
- Teach children how to swim, keep weak swimmers and non-swimmers within arms reach while they are in the water, and have them wear Coast Guard-approved life jackets.
- Do not consume alcohol or use electronic devices and social media, while supervising children around water.
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