Wednesday, August 21, 2013

Trouble Magnet

A property owner’s liability for guests’ injuries may be impacted by something known as the “attractive nuisance doctrine.” Examples of items that might be considered an attractive nuisance are: A piece of equipment, a wood pile, pile of sand, and a swimming pool.  

In these instances, the owner is required to take additional steps to protect children who naturally gravitate to these items.  On the other hand, a natural lake would not be considered an attractive nuisance. Georgia courts have stated that lakes are open and obvious hazards. Because of this, a person (including children) is considered to have actual knowledge of the dangerous condition and can avoid it by exercising ordinary care.

Specific circumstances create exceptions to natural hazards.  If a person is injured due to improper maintenance, the property owner could be held liable.  Example: A lake pier is in poor condition, and someone walking on it falls through and drowns.   The person’s injuries were caused by the failure to maintain the deck, which creates a distinct hazardous condition from the lake’s inherent hazards. 

Under Georgia law, an owner of land is liable if: 
  1. the place where the condition exists is one upon which the owner knows or has reason to know that children are likely to trespass, and 
  2. the condition is one of which the owner knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily injury to such children, and 
  3. 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 
  4. the utility to the owner of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and 
  5. the owner fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. 

There must be evidence to support all five of these conditions.

When in doubt, the best policy is to take additional steps beyond the basic requirements in order to secure spaces in your community that may result in injury.  Besides regular inspections by the management company, you should have an insurance agent tour the neighborhood to identify needs.   Any life saved is worth your vigilance.

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