Georgia law retains a common-law doctrine called "attractive nuisance" which protects children from injury when they go on the premises of another person or company uninvited and get injured playing on something that children want to play on. "Attractive nuisance" personal injury and wrongful death cases can often be complex, but the summary below should provide a synopsis of Georgia law in this area.
Georgia law provides that "[a] lawful possessor of land owes no duty of care to a trespasser except to refrain from causing a willful or wanton injury." O.C.G.A. § 51-3-3(b). However, O.C.G.A. § 51-3-3(c) further provides, "Georgia common law as it exists and is applied to the doctrine of attractive nuisance, in effect as of January 1, 2014, shall not be construed to be altered by this Code section." In other words, the common law principle of "attractive nuisance" is alive and well in Georgia to protect children.
What is an "attractive nuisance" under Georgia law?
The short answer is that attractive nuisances are things on another's premises which are "inherently dangerous instrumentalities, which are attractive to children." Gregory v. Johnson, 249 Ga. 151, 289 S.E.2d 232 (Ga., 1982). These can be things like swimming pools, trampolines, or anything which children want to play on or in which have inherent dangers. However, Georgia law on the application of the doctrine of "attractive nuisance" is more complex than the short and simple answer.
What are the legal elements of an "attractive nuisance" claim under Georgia law?
In the landmark case of Gregory v. Johnson, cited above, the Supreme Court of Georgia adopted the elements for an "attractive nuisance" from the Second Restatement of Torts, § 339, 1965. When each of the following five elements are met a possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land. The five elements are:
(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) 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
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children."
Does "attractive nuisance" apply to every age group in Georgia law?
No. The theory of "attractive nuisance" protects children only. "'The theory of attractive nuisance is that a possessor of land is subject to liability for physical harm to children trespassing thereon.' Thus, the attractive nuisance theory is unavailable to the adult plaintiffs." Smith v. Chemtura Corp., 676 S.E.2d 756, 297 Ga. App. 287 (Ga. App., 2009).
Does the theory of "attractive nuisance" apply to children invited onto premises in Georgia?
No. The "attractive nuisance" theory only applies to trespassing children. However, if a child is invited onto premises there are other potential theories of recovery such as negligence.
What is "reasonable care to eliminate the danger or otherwise to protect the children?"
This is a case-sensitive inquiry dependent on the individual facts of each personal injury case involving a child. Things like proper fencing around a swimming pool can be sufficient, but conditions must be investigated to determine if the care is reasonable enough to eliminate the danger.
Cases involving serious injuries and fatalities with children are some of the most important and emotional cases a Georgia personal injury attorney handles. If you would like a free consultation with personal injury and wrongful death attorney, please contact Richard Armond at (678) 661-9585 or fill out the case inquiry form on the homepage of this website.
Attorney Richard Armond of The Armond Firm, LLC, handles serious personal injury and wrongful death cases throughout metro Atlanta and the State of Georgia. He is licensed to practice law by the State Bar of Georgia and is based in Lawrenceville, one mile down the road from the Gwinnett Justice and Administration Center. Call him today for a free consultation at (678) 661-9585. The information above is for informational purposes only as of the date of publication and should not be relied upon as legal advice, nor does the reading of it form an attorney-client relationship. Always consult directly with an attorney for legal advice.