THE MCMILLIAN LAW FIRM AGGRESSIVELY PURSUES COMPENSATION FOR PREMISES LIABILITY CASES IN CHARLESTON, SC AND SUMMERVILLE, SC

The first article of this series addressed the legal theories that may apply to a situation where a child is injured when on the private property of another person as a social guest (licensee). If you remember from that article, the main point is that several legal theories may apply depending upon the specific facts of the case. The legal theories that would apply to a child in the capacity of a licensee would be the strict liability theory (dog / animal injuries), general common law negligence (duty as a matter of law), and the theory of "attractive nuisance." The theory of attractive nuisance was not discussed in much detail in the previous article, specifically because it is a theory that would most likely be the "least used" (for lack of a better way of putting it) in a situation where a child is a permissive guest upon property. 

The focus of this article will be to discuss the in-depth negligence theory of "attractive nuisance" and the specific fact patterns that most often apply to this specific theory. 

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ORIGINS OF ATTRACTIVE NUISANCE 

In general, the law of negligence imposes no duty upon a landowner or homeowner to protect a trespasser from dangers located on the premises. The old common law theory centered around the foundation that a landowner could not be liable in negligence to someone who came upon the land without the permission or the knowledge of the landowner. 

However, over the years and through the evolution of case law in South Carolina, the courts began to recognize that such a hard and fast rule concerning trespassers failed to address a large loophole in the law. How could the law evolve to protect children trespassers, considering the proclivity for children to lack the knowledge and experience to identify and avoid dangers upon the land that adults would be able to recognize? The courts recognized that an exception to the hard-fast rule concerning potential liability to trespassers needed an exception to protect the most vulnerable potential victims . . . i.e. children. 

THE LAW OF ATTRACTIVE NUISANCE IN CHARLESTON, SOUTH CAROLINA

In response to the specific need to protect "children trespassers," the South Carolina Supreme Court laid out the theory of attractive nuisance. South Carolina courts first recognized attractive nuisance in the what are known as the "turntable cases."  This set of cases allowed children to recover damages from railroad companies for injuries caused by the failure to lock or properly guard railroad turntables.  Bridger v. Asheville and Spartanburg R.R. Co., 25 S.C. 24 (1886).

Attractive nuisance theory is defined as:

[O]ne who artificially creates upon his premises any dangerous thing which from its nature has a tendency to attract the childish instincts of children to play with it is bound, as a mere matter of social duty, to take such reasonable precautions as the circumstances admit of, to the end that they may be protected from injury while so playing with it, or coming in its vicinity. Franks v. S. Cotton Oil Co., 78 S.C. 10, 15, 58 S.E.2d 960, 961 (1907) 

As stated before, the theory of attractive nuisance is founded upon children's susceptibility to fail to perceive the risks of encountering dangerous machinations or conditions. The courts in South Carolina created this exception to the common law's bar of a trespasser's ability to maintain a cause of action for premises liability.  

THE ELEMENTS OF ATTRACTIVE NUISANCE

The Specific Elements That Must Be Shown to Support A Claim of Attractive Nuisance:

• The owner or occupier of land brings or artificially creates something;

• Which, from its nature, is especially attractive to children;

• The owner 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.  

Over the years, South Carolina case law has specifically defined what each of these elements means and what must be shown to support the theory of "attractive nuisance." Let's look at each element and how it has been defined. 

ATTRACTIVE NUISANCE AND "ARTIFICIAL CONDITION"

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.  Henson ex rel. Hunt v. International Paper Co., 374 S.C. 375, 381, 650 S.E.2d 74, 77 (2007).

Things that would be considered "artificial conditions" under South Carolina case law would include: swimming pools, man-made lakes and canals, heavy machinery, construction materials, electrical fences, power tools, explosives, firearms, etc. 

Things that would not be considered an "artificial condition" include: dirt (pile of dirt left by construction company with no other instrumentalities), trees, and domesticated animals such as dogs and cats.

It is important to note the following two considerations when considering whether the condition is "artificial":

• The condition need not be permanent but merely artificial; and

• Is the condition something that required some type of intervention to be placed upon the land.

ATTRACTIVE NUISANCE AND "ATTRACTION"

The second element of the "Attractive Nuisance" theory is that, as the name says, the condition by its nature, is something that may be attractive to children. That in and of itself is a very vague and open definition. This is a gray area in the application of attractive nuisance theory to injuries sustained by children. It is safe to say that defining conditions and objects that children may find "attractive" is very fact specific and the standard can fluctuate from court to court and jurisdiction to jurisdiction. Generally speaking, conditions and machinations that will be considered "attractive" to children are much like what was described above: swimming pools, machinery, man-made lakes / canals, construction materials, firearms, tools, heavy machinery, etc.

ATTRACTIVE NUISANCE AND THE DUTY OF THE LAND OWNER

The final element of any "attractive nuisance" theory of recovery is that the burden shifts to the land owner to insure that the the dangerous, artificial, and attractive object / condition that comes upon the land is so guarded as to prevent injuries to children who may come into contact with it. 

What exactly does this mean? It means that a landowner must take the necessary precautionary steps to prevent injuries to unforeseen child trespassers caused by artificial and / or dangerous conditions that have come upon the land. The obvious "preventative steps" that can be taken by a landowner include preventing access to the land via fences. The landowner could use locks and gates to prevent access to the land. Proper storage of heavy equipment and tools in storage sheds or holding facilities. Posted warning signs and even on the ground security personnel can serve the function as well. 

ONE LAST CONSIDERATION ABOUT ATTRACTIVE NUISANCE

There was a time when the United States Supreme Court suggested that the dangerous condition or instrument must have attracted the child onto the defendant's property in order to hold a party liable under a theory of attractive nuisance.  United Zinc & Chem. Co. v. Britt, 258 U.S. 268, 276 (1922). What this means is if the child testified that he / she was attracted to the property by a swimming pool, but then instead was injured by a firearm on a table by the swimming pool, the child could not recover for damages since he / she was not attracted to the property by the condition or instrument that factually caused the injury. This was referred to as the "property line" rule.

The Supreme Court of South Carolina, however, has abolished the use of the property line rule in its deliberations over attractive nuisance cases. In South Carolina, the condition or the instrument that attracted the child trespasser onto the property need not be the condition or instrument that actually causes the injury to the child trespasser if the elements of "attractive nuisance" or otherwise satisfied by the facts of the case. Henson ex rel. Hunt v. International Paper Co., 374 S.C. 375, 381, 650 S.E.2d 74 (2007)

ATTRACTIVE NUISANCE SUMMARY - CHARLESTON, SOUTH CAROLINA

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

• 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

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

• 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

• 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

• the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

THE MCMILLIAN LAW FIRM - CHARLESTON, SC AND SUMMERVILLE, SC PERSONAL INJURY ATTORNEY

Contact Jay McMillian at The McMillian Law Firm. Once you have obtained legal representation on your matter, the insurance company must cease direct contact and deal with your lawyer instead. Contact me as soon as possible so that I may conduct a site visit of the accident and begin to obtain witness statements, police reports, and all relevant materials I need to build your case towards an acceptable settlement or trial. 

It is never too early to contact me! Each and every day is a day the insurance company will try and short-change your claim. I am available for home visits, hospital visits, nights and weekends, just let me know what works for you. 

If you have been involved in a car accident and live in Charleston, Mt. Pleasant, North Charleston, Summerville, James Island, Johns Island, West Ashley, Goose Creek, Moncks Corner, Walterboro, Folly Beach, or any of the other fine communities of the South Carolina Low Country, contact The McMillian Law Firm now!! 843-900-1306 or email at [email protected]