The Nelsons had just put in a large in-ground swimming pool at the beginning of the summer, and their home became a gathering point for all the neighborhood children seeking relief from the heat. The Nelsons were very accommodating and made sure that there was an adult present anytime the kids would utilize the pool. The Nelsons also built a chain ink fence around the pool and kept a lock on it when it was not in use.
As the summer dragged on, the Nelsons became a little lackadaisical with regard to locking the gate.
The Hendersons lived next door to the Nelsons and had two small children. Jen, who was 11, and Tommy who was 3.
Mrs. Henderson advised Jen that she had to run out for a quick errand and would only be gone about 20 minutes. Jen had watched little Tommy for these short periods of time, and it didn\’t seem to be a problem. The children were told on numerous occasions not to go by the pool unless it was open and an adult was there.
Because of the unusual heat this late in the summer, Tommy asked Jen if it would be ok if he just went and put his feet in the pool. Jen stated that, in all likelihood, the pool gate would be locked but they would check and see. Unfortunately, the gate had not been secured, and Jen and Tommy went towards the pool. Tommy first put his feet in but then became a little too adventurous and fell in the pool. Fortunately, Jen was able to come to her little brother\’s rescue but not after Tommy had a very frightening experience.
Question: What liability, if any, would the Nelsons have had if this story did not have such a happy ending?
Answer: There is a doctrine in the law that is referred to as an attractive nuisance. That is, if one has on their property something that would be attractive to children and that one can expect children to naturally be attracted to that entity, be it a building or a swimming pool, extreme care must be taken at all times to prevent any injuries to children. In this case, the pool, on a hot day was like a magnet. It attracted Jen and her brother. The failure to have the gate locked would be looked upon as negligence on behalf of the Nelsons. The Nelsons will surely not forget to lock their pool anymore nor will Jen and Tommy disobey their mother in the future.