Trade associate update

Farmers beware: Liability under the attractive nuisance doctrine

— By L. Javan Grant and Janet C. Owens
Rogers Towers P.A. (FFVA trade associate member) —

Imagine after a long day in the field you’re sitting at home finishing dinner and watching the news.  Then, the telephone rings.  You answer, and on the other end is a frantic caller crying and screaming about his child.  The child was trespassing on your farm, drawn by a pond located on the property, and was sucked into the pond.  You immediately drive out to the farm and discover that the irrigation pump had a concealed and unguarded intake hose located beneath the surface that was left running without supervision.  The child has drowned.

Sound farfetched?  A similar scenario actually has already happened in Florida.  What may be even more shocking is that the landowner was held responsible for the young child’s death, even though the child was trespassing on the landowner’s property.  This was because of what is known as the attractive nuisance doctrine.

Generally, a landowner owes no duty to an undiscovered trespasser except to refrain from intentional misconduct that causes injury to the undiscovered trespasser.  However, when the undiscovered trespasser is a child, the attractive nuisance doctrine creates an exception if:

The landowner knows or has reason to know that the place where the dangerous condition exists is one where children likely will trespass

The condition is known or should be known to cause an unreasonable risk of bodily harm to a trespassing child

The child, because of his or her age, does not discover the condition or realize the risk involved in meddling with it or entering the area made dangerous by it

The burden of eliminating the danger is slight compared to the risk posed to children

The landowner fails to exercise reasonable care in removing the danger or protecting the child

With the increase in residential development in rural Florida, farmers need to be aware of their risks when young children are lured or enticed onto a property by a condition, instrument or machine that is dangerous. A dangerous condition could be a piece of farming equipment (tractor, plowing disc, irrigation equipment), ponds and irrigation ditches, or hay bales stacked high in a barn.

Fortunately, there are measures that farmers can take to protect themselves against liability.  Although there is no ironclad way to be protected from all liability, one of the best ways to show that you have exercised reasonable care is to build and maintain appropriate fencing around your property.  At the end of the day, it is important for farmers and other landowners to consider the potential for liability under the attractive nuisance doctrine and how to best protect themselves.

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L. Javan Grant is a shareholder in the Tampa office of Rogers Towers, P.A., and a member of the firm’s litigation department, where he concentrates a portion of his practice on the agricultural industry, including federal crop insurance and agricultural land-use litigation, premises liability, and transportation and logistics.  Janet Owens is an associate in the firm’s Jacksonville office and part of the firm’s litigation department, whose practice includes commercial/business litigation and federal crop insurance/agricultural land-use litigation.  To contact Grant or Owens, visit www.rtlaw.com or call 904-398-3911. 

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