Attractive Nuisance: When Children are Injured on Private Property

Not long ago while doing some legal research on another matter, I came across a 1988 Idaho Supreme Court case, Hughes v. Union Pacific Railroad, that involved a minor injured while crossing a railroad yard. The case was interesting for a number of reasons, but primarily it sets out the requirements that must be met in order to determine liability when a child is injured due to an “attractive nuisance.”

Four Elements Required to Prove Case of Attractive Nuisance

The first element that must be proven is that the structure or condition must be peculiarly or unusually attractive to children. Second, the child must have been attracted to the property by the structure or condition. Third, the owner must have actual or, under the circumstances, should know that children are likely to come on the property and be injured. Fourth, the structure or condition’s dangerous state would not be apparent to immature minds.

The Facts of the Case

The case involved three young men who, instead of crossing a railroad yard by using the overpass, decided to walk through the yard. Although the yard was surrounded by an eight foot fence, there was a three foot wide opening with no warning signs just below the overpass. The 13 year old boy who was injured was discouraged by his older brother who eventually turned back. The boy also took measures while crawling under boxcars to avoid wheels in case the train moved. After all the evidence was presented, the jury ruled in favor of the defendant railroad. The injured boy’s appeal was based on an error in instructing the jury.

Applying Law to Facts Is Easier Said Than Done

The most interesting thing about this case involved the discussion in the dissenting opinion about how different jurisdictions view these types of cases. Some jurisdictions take a “hard” approach and will side with the property owners, while others take a “soft” or humane approach and side with the injured children. In this particular case, the right result was reached, since the boy was of an age that he likely, in the minds of he jurors, appreciated the danger of crossing the railroad yard. However, the dissenting opinion made much more sense than the majority opinion. In the Hughes case, the trial court failed to give the jury an instruction on the theory of attractive nuisance, which both sides agreed was a viable theory in the case. On appeal, the majority opinion stated in essence that even if the correct instruction had been given, it would not have applied based on the facts of the case. The dissent would have granted a new trial to the injured child, not because of an incorrect instruction, but because of an omitted instruction.

Bob Jacobson is a personal injury attorney in Boise, ID