We ONLY Get Paid When YOU WIN! – Call Now and Schedule Your FREE Consultation!


Las Cruces

“My Child Was Hurt Playing Where They Weren’t Supposed to…” The Concept of Attractive Nuisance

children on a trampoline before an accident

Imagine the following scenario: You have a young, curious child who’s always getting into things they shouldn’t be. One day, you lose track of them for a second, only to discover that they’ve trespassed onto someone else’s property and seriously injured themselves. You might think you were liable for the accident—after all, trespassing is a crime. However, in some situations in New Mexico, the property owner may be at fault due to a legal concept known as attractive nuisance.

What Is “Attractive Nuisance?”

So, what is an attractive nuisance? To put it simply, attractive nuisance states that a property owner can be held liable when a trespassing child gets injured if there was an object on the land that was likely to attract children, and which wasn’t adequately secured. A classic example of this is a pool. Kids often love water, and younger ones will often play by the water’s edge or even attempt to get into water—even when they can’t swim. They’re too young to understand the danger.

While the above is an unfortunate scenario, it’s a relatively common occurrence from a legal perspective. This area of law is known as premises liability and deals with injuries sustained on someone else’s property. While pools and other bodies of water are what most people think of when it comes to attractive nuisance, any number of things may qualify, and you may have a personal injury case

Examples of Attractive Nuisance

As a reminder, what makes an attractive nuisance an attractive nuisance is that it appeals to kids, and the property owner has failed to secure it so that children cannot access it. Consequently, there’s a very long list of objects that could potentially fall into the category:

  • Swimming pools
  • Skateboard ramps
  • Playgrounds
  • Trampolines
  • Large appliances, like an oven or refrigerator, left for garbage pickup
  • Abandoned vehicles
  • Construction sites or equipment
  • Decorative fountains or drainage ditches
  • Animals, especially dogs or horses
  • Open pits or wells

Attractive Nuisance in New Mexico

The modern understanding of attractive nuisance in New Mexico stems from the 1998 case Carmona v. Hagerman Irrigation Company. In this case, the New Mexico Supreme Court ruled that a local water supplier could be held liable for a child entering one of the company’s irrigation canals and drowning. In their reasoning for the decision, they referenced The Restatement of Torts, Second, which details common law in the United States. This text defines attractive nuisance as the following:

 A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if:

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he [or she] realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

“Even though the possessor knows that children are likely to trespass, that the condition on the land involves an unreasonable risk of harm to them, and that they are likely not to discover or appreciate the risk, there is liability only if the possessor fails to take the steps which a reasonable [person] would take under such circumstances.”

It’s important to point out that negligence can contribute to an attractive nuisance. Say a landowner needed to dig a pit for some contracted project. They put up a fence to keep children and other trespassers out. However, the project was put on hold for many years, and the fence began to break down, creating spaces that a child could fit through. If a child were to get through the fence and fall into the pit, injuring themselves, the property owner could be held liable because they created an attractive nuisance through negligence.

child outside near a pool before an accident
Image by Africa Images by Canva.com

When Should You Contact a Lawyer About Attractive Nuisance?

If your child is ever injured in an accident outside the home, it’s often a good idea to contact a lawyer. Dealing with medical bills, handling a potential legal case, and caring for a seriously injured child can be a significant challenge. Hiring a lawyer can take the complexities of the law off your plate and give you the peace of mind that you’re getting the best shot at winning your case. Lawyers also understand how to collect the necessary evidence and who to contact to help procure a speedy settlement to get you the compensation you deserve as quickly as possible. Consequently, the sooner you contact a lawyer after an accident, the better.

How Kane Helps with Attractive Nuisance

At Kane, we understand the pain of helping a child who’s been in a serious accident. We’ve helped countless people with seriously injured children win their cases and turn their lives around. And, if you don’t win your case, you don’t have to pay us a dime. Contact us today for a free, no-obligation consultation to learn more about what Kane Personal Injury can do for you. 

Please note that this article was created for advertisement purposes, and it does not constitute any contractual legal relationship, nor imply one.

Cover Image by Brand X Pictures by Canva.com