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Avoiding the “Attractive Nuisance”

Are you held liable if a child trespasses onto your property and is injured?

Hazardous places, conditions, or things on the land that tend to lure unsuspecting children are commonly known as "attractive nuisances."  Attractive nuisances are typically not natural conditions of the land, such as a pond, but rather are conditions that were created by the landowner or someone else on the property.  Swimming pools are classic examples.  Depending on the circumstances and how the state defines an “attractive nuisance,” a horse might qualify.

Generally, people who harbor an "attractive nuisance" become liable when they fail to take reasonable measures to protect children from it.  From a facility's perspective, avoiding liability for attractive nuisances is particularly frustrating since children cannot read warning signs and can climb over or crawl under fences.

Some of the factors courts in Michigan frequently consider in evaluating attractive nuisance claims are: (1) the type of hazard on the property and whether the hazard poses an unreasonable risk of death or serious bodily harm to children; (2) whether the children, due to their youth, could appreciate the risk involved; (3) the extent to which the presence of trespassing children near the hazard was reasonably foreseeable to the landowner; (4) the utility to the landowner of maintaining the hazardous condition; and (5) how the burden of eliminating that hazard compares to the risk of harm involved.  Other states can differ.

Conclusion

  1. Never assume that you are immune from liability because a child injured on your property was a “trespasser.”  The “attractive nuisance” doctrine is an exception to general principles protecting landowners from most liabilities involving trespassers.
  2. Defending yourself against “attractive nuisance” claims can be particularly expensive.  Make sure you have proper liability insurance.
  3. Never assume that your state’s equine activity liability act protects you from an “attractive nuisance” claim.  A young child who enters your pasture might not qualify as an “equine activity participant” under a state’s equine activity liability law (but check your law).

Seek legal help to protect yourself against these claims or to respond to them if they are brought against you.

Categories: Insurance, Liability

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is considered to be one of the nation's leading attorneys in the field of equine law. A frequent author and speaker on legal issues, she has written over 400 published articles, three books, and has lectured at seminars, conventions, and conferences in 29 states on issues involving law, liability, risk management, and insurance. For more information, please also visit www.fershtmanlaw.com and www.equinelaw.net, and www.equinelaw.info.

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Our Equine law blog (and its author) in the news!

Julie Fershtman, author of our popular and prolific Equine Law Blog, was interviewed by the State Bar of Michigan. The interview, which called Fershtman "Lawyer-Blogger," discussed our Equine Law Blog. We truly believe that this blog is the nation's most active blog serving the equine industry on equine law topics, and we thank you for visiting it. Read more here.

Julie Fershtman’s Recent and Upcoming Equine Law Speaking Engagements Include:

National Conference on Equine Law in Louisville, Kentucky on April 29, 2020. Topic will be on Waivers/Releases of Liability Involving Minor Participants. 

U.S. Hunter Jumper Association (USHJA) Annual Convention in Denver, Colorado on December 10, 2019. Topic will be on Equine Liability. 

IRMI Emmett J. Vaughan Agribusiness Conference (“AgriCon”) in Sacramento, CA (April 2019), and Richmond, VA (June 2019) and in Des Moines, IA (September 2019), on topics of “Equine Activity Liability Acts” and “Equine Mortality Insurance Disputes.”

National Conference on Equine Law in May 2019 in Lexington, KY, on the topic of “Equine Activity Liability Act Updates” and liabilities involving hosting of equine clinics. 

Agricultural Claims Conference in Kansas City, MO, in March 2019 on topics of “Loose Livestock Liabilities.”

2018 American Bar Association Annual Meeting in Chicago, IL, on “Equine Mortality Coverage and Disputes.”

November 2018, American Horse Council webinar on “Equine Liability.”

Honors & Recognitions

Equine lawyer, Julie Fershtman, has received these prestigious equine industry awards from respected equine organizations:

"Excellence in the Advancement of Animal Law Award" - American Bar Association Tort Trial & Insurance Law Section Animal Law Committee

"Distinguished Service Award" - American Youth Horse Council

"Industry Service Award" - Michigan Equine Partnership

"Catalyst Award"- Michigan Horse Council

"Outstanding Achievement Award" - American Riding Instructors Association 

"Partner in Safety Award" - American Riding Instructors Association 

"Associate Service Award" - United Professional Horseman's Association

"National Partnership in Safety" Award" - Certified Horsemanship Association 

What our Equine Law Services can Provide

Handling breach of contract, fraud/ misrepresentation, commercial code, and other claims involving equine-related transactions including purchases/sales, leases, mare leases/foal transfers, and partnerships.

Litigating disputes in court or through alternative dispute resolution (arbitration, mediation, facilitation).

Defending equine/farm/equestrian industry professionals,  businesses, and associations in personal injury claims and lawsuits.

Drafting and negotiating contracts for boarding, training, sales, waivers/releases, leases, and numerous other equine-related transactions.

Representing and advising insurers on  coverage and policy language as well as litigation;

Advising equine industry clubs and associations regarding management, rules, bylaws, disputes, and regulations.

Representing some of the equine industry's top trainers, competitors, stables, and associations.

Counseling industry professionals, stable managers, and individual horse owners. 

THE NATION'S MOST SOUGHT-AFTER EQUINE LAW SPEAKER

Did you know Julie Fershtman has spoken at the American Horse Council Annual Meeting, Equine Affaire, Midwest Horse Fair, Equitana USA, US Dressage Federation Annual Meeting, North American Riding for the Handicapped (now PATH International) Annual Meeting, American Morgan Horse Association Annual Meeting, American Paint Horse Association Annual Meeting, US Pony Clubs, Inc.'s Annual Meeting, All-American Quarter Horse Congress, American Youth Horse Council Annual Meeting, American Riding Instructors Association Annual Meeting, CHA Annual Meeting, and numerous others? Consider signing her up for your convention. Contact Julie.

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