Good Neighbors. Great Lawyers.

Attractive nuisances and recreational immunity: are you responsible?

By Johns, Flaherty & Collins SC on Wednesday, March 9th 2011

A child wanders onto your property and is injured. Are you responsible?

“It depends,” said Johns, Flaherty & Collins attorney Brent Smith. “There is a special doctrine called attractive nuisance that affects landowners.”

An attractive nuisance is anything on your property that might attract children to harm or danger. Business and private property owners must warn and/or take action to protect children from such dangers on their land.

“It usually applies to children,” Smith said, “and has to be considered on a case-by-case basis.”

If someone is harmed while on your property, you may have recreational immunity. Recreational immunity protects landowners who open their property to a recreational activity under certain circumstances.

The recreational immunity clause was tested in La Crosse in 2001 after a child died in a recycling warehouse fire in May 1997. He and two other 11-year-olds broke in after hours, playing among the bales of paper. One child, playing with matches, caused the fire.

The recycling business’ insurer tried to block a lawsuit from the deceased boy’s family, saying the center fell under recreational immunity because the boys were playing inside. The Wisconsin Supreme Court in 2001 disagreed and the lawsuit was settled outside of court.

Smith noted other types of nuisances in the law, both private and public. Private nuisance would be something that interferes with a person’s ability to use his or her property. Public nuisances refer to actions that affect the general public.

Examples of attractive nuisances

For private homeowners:

  • Leaving a refrigerator or other large appliance on the curb that children could enter and potentially not get out of, leading to death. It’s important to take the door off or disable the appliance in some way so children cannot be trapped inside.

  • An automobile, whether it is workable or not. It must be kept locked and windows rolled up without keys inside. 

  • Farm machinery left out in the open that children might start and get hurt using.

  • Leaving a saw or other tools that children could pick up and play with.

For business owners:

  • Leaving a house under construction accessible to children, who might wander in and play in the structure.

  • Easy access to a commercial building, where a child might have access to dangerous equipment.

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