I would like to take a moment to remember the children and staff, 26 total, of Sandy Hook Elementary School who lost their precious lives a year ago tomorrow, December 14, 2012, in what seems like a senseless tragedy that stirred the nation, and a date that has been frozen in time for so many families. I am the mother of a young child and there is nothing worse than the loss of a child in a person’s life. It is utterly confusing and one never forgets to ask whether or not there could have been something that could have been done to prevent such a tragedy. Closer to home here in Canton, Georgia in Cherokee County, last Friday on December 6, 2013 at a well known Cherokee County Elementary School, Joseph Knox Elementary, a student was found in possession of a pocket knife and hatchet on campus. For more information, you may see the letter that the principal of the school, Tammy Sandell, dated December 9, 2013, addressed to the parents of Knox ES Students. You may also contact the Cherokee County School Police and reference case number 2013-12-456 for more detailed information of the incident. As a parent and an attorney, I was sickened by this event no matter how harmless the school and authorities have portrayed the incident.
This brings me to my topic today of Attractive Nuisances. Please kindly note that both the Sandy Hook Elementary School incident and the local Joseph Knox Elementary School incident appear to have happened as a result of children who were not trespassers, as the Attractive Nuisance Doctrine in Georgia addresses trespassers, and this is a distinguishing factor. The incidents of Sandy Hook Elementary School and Joseph Knox Elementary School were cases in which the children appeared to have access to weapons in the home which, to some, makes these incidents more abhorrent than an incident of an Attractive Nuisance. I will discuss the Attractive Nuisance Doctrine momentarily. I would like to remind parents now, however, that you are responsible for your children and that you must use extreme caution when having weapons of any sort in your home whether it be a pocket knife, hatchet, or gun. Children learn by example and if allowed to treat weapons as toys or items of attraction to show off to friends, inevitably tragedy may strike and a child or other person could be injured or killed. This is not what any parent wants to experience so take responsibility for your children and for yourself as a parent if you have any weapons in your possession. Weapons are not for children. Furthermore, in many cases, the parents will be held responsible for the actions of a child, which I will discuss below as well, and this would include the actions of a child with a weapon who injures or kills another child or person. This is senseless and common sense as well as the law will prevail in these instances.
As discussed on the first page of my Consumer Safety, Winter, 2013, Legal Matters newsletter, many clients will ask what the liability issues are if a child is hurt on their property even if the child was not invited. In Georgia, this is known as the Attractive Nuisance Doctrine. I quote the following:
“The Restatement provides:
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(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.
Restatement (Second) of Torts § 339 (1965).”
Attractive Nuisances can be, and are not limited to, swimming pools, play structures, construction sites and farms, and liquor and gun cabinets, and even power tools. It is important to insure that your property, inside and outside, is safe for your guests, invitees, and even for those who may not have been invited on or in your property.
As we approach the holidays, and I will discuss this more in my upcoming blog posts as well, it is also important to remember that parents can be held liable for drunk driving accidents caused by their children or their children’s friends. A case in point approximately 20 years ago in Georgia whereby a high school student left his house in the morning to drive to school and while on the way to school was in an accident that caused permanent brain damage to another student in another vehicle in the accident. It appeared that the driver of the vehicle that caused the accident may have been under the influence of drugs at the time of the accident. This case was settled out of court. The insurance company of the driver of the vehicle who caused the accident paid policy limits, and the parents of the driver paid an additional $ 150,000.00 out of pocket to the victim of the accident who suffered the brain damage. Liability on the part of the parents for the children’s actions is real. We are experts in these types of cases so if you or a loved one is ever involved in such an incident of this or any sort, then please kindly Contact Usat 770-865-8654 or (813) 363-6664. We serve the Entire State of Georgia and we get results. Nobody should suffer for the negligent actions of another without just compensation; never.