Delaware law generally limits the duty owed to trespassers, but children get special treatment because they are not always able to appreciate dangers that an adult would avoid. The attractive nuisance doctrine is the legal recognition that some hazards on private property are foreseeable risks to curious children and call for special care.
The Detailed Answer
The attractive nuisance doctrine in Delaware draws from principles developed in common law and reflected in the Restatement (Second) of Torts § 339. The doctrine asks several questions about the property owner’s responsibility for child injuries.
The Elements
Generally, the doctrine may apply when:
- The owner knows or has reason to know that children are likely to trespass
- The owner knows or has reason to know that the condition involves an unreasonable risk of serious injury or death to children
- Children, because of their youth, do not realize the risk
- The utility to the owner of maintaining the condition is slight compared to the risk
- The owner fails to exercise reasonable care to eliminate the danger or otherwise protect the children
Common Attractive Nuisances
- Swimming pools and hot tubs without adequate fencing
- Construction sites and equipment
- Abandoned appliances (refrigerators, freezers)
- Trampolines without enclosures
- Abandoned buildings and vacant property
- Dangerous machinery or vehicles left accessible
- Hazardous materials
Pool Fencing
Many Delaware municipalities and homeowner associations have specific pool fencing requirements. A failure to comply with those requirements can support an attractive nuisance claim if a child is injured. The Delaware Building Code and local ordinances should be consulted.
Reasonable Care
The doctrine does not require owners to make their property childproof. It requires reasonable care — fencing, locks, warnings, supervision, or removal — that is proportionate to the risk and the foreseeability of child trespassers.
What This Means for Your Case
If a child was injured on someone else’s property in Delaware, the attractive nuisance doctrine may provide a path to recovery even though the child was technically a trespasser. The two-year statute of limitations under 10 Del. C. § 8119 applies, but Delaware tolls the limitations period for minors under 10 Del. C. § 8116 — a minor’s claim generally does not bar until 3 years after the child turns 18, meaning until age 21. Modified comparative negligence under 10 Del. C. § 8132 applies, with adjustments for the child’s age and capacity.
Related Questions
Q: How old does a child have to be for the doctrine to apply?
There is no fixed age. The doctrine focuses on whether the child appreciated the risk, which depends on age, intelligence, and experience. Younger children get more protection.
Q: Does the doctrine apply to teenagers?
Less reliably. Teenagers are generally expected to recognize obvious dangers, though specific facts can change the analysis.
Q: What if the property was fenced?
Fencing is evidence of reasonable care, but does not automatically defeat the claim. The question is whether the fencing was adequate for the foreseeable risk and the child’s likely behavior.
When to Talk to a Delaware Premises Liability Lawyer
Child injury cases involving attractive nuisance call for sensitive and detailed investigation. Joseph M. Jachetti — Delaware Bar #003744 — has experience handling Delaware premises liability claims and previously worked ten years as an insurance claims adjuster. Read about Joseph, our premises liability practice, and related questions like child injuries on others’ property.
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This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.
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This page provides general legal information only. It is not legal advice and does not create an attorney-client relationship. For advice on your specific situation, contact Schuster Jachetti LLP.