California, attractive nuisance doctrine and premises liability
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California, attractive nuisance doctrine and premises liability

| Jan 21, 2021 | Personal Injury

Under previous state law in California, attractive nuisance dictated that property owners had a special duty of care to keep their property safe for children. While California no longer recognizes attractive nuisance doctrine, state law now actually imposes a broader duty of care on real property owners.

Understanding attractive nuisance and how California has changed its laws may help property owners understand their responsibility to people who visit their property.

Attractive nuisance

Up until a 1970 court ruling changed the law, California based its premises liability laws on the same concept as what most other states. These doctrines dictate that a property owner’s duty of care to visitors depends upon both the right and the foreseeability of the latter to be present.

In other words, property owners owe a greater responsibility to a friend or neighbor who frequently visits their land, or to a contractor performing work on their property, than they do to a trespasser whom they did not know was present. Other mitigating factors could apply, but the general responsibility rested on this question.

These laws generally employ the doctrine of “attractive nuisance,” a doctrine dictating that property owners owe a greater degree of care to children who may trespass on their property. For example, if a property owner has a pool or playground, the law would hold them responsible to expect that children may trespass. Because they could reasonably expect such behavior, a court could hold them liable for a child’s injury due to unsafe conditions.

Current standards

Now in California, the law has broadened this responsibility to dictate that property owners may owe a general duty of care to all persons who may be on their land and that the burden of proof generally rests on the property owner to demonstrate any exceptions. Courts will consider all relevant factors when making a ruling. In other words, by getting rid of attractive nuisance, the state actually increased the responsibility of property owners rather than reduced it.

The law no longer rests so heavily on the visitor’s right to be present, although this is one factor among several. Judges have a great deal of discretion in considering all relevant factors.

Under current law, the court now also considers current hazards on the property and what measures the property owner took — or reasonably could have taken — to address them. They may also consider whether he or she put up a fence or other deterrents to any hazards and whether he or she adequately warned visitors of potential dangers.

Under these laws, property owners now have an obligation to regularly inspect their property and conditions and therefore generally have the responsibility to know what conditions their property is in. As such, they could be more liable for resulting injuries.