By Michael Hosto, Founder, 1-800-BOARDUP
As most experienced fire professionals know, children frequently stray onto fire scenes after a fire. Most seasoned veterans have witnessed some variation of the neighborhood “bicycle brigade”, organized and ready to invade when the adults have retreated and the all-clear sign is given.
Often, what draws these children is the presence of danger and intrigue. Fires are exciting events to children, who witness fire trucks speeding to a scene with flashing lights and sirens, flames and smoke. The ravaged carcass of a burned-out neighborhood building is often and irresistible curiosity to neighborhood children and adults alike.
As public safety professionals, firefighters and police officers should have a duty to inform fire victims, who may be distraught, of their obligation to protect the public in general – especially children. This protection includes taking reasonable precautions to prevent injury or death from an attractive nuisance.
An attractive nuisance is a potentially harmful object or environment so inviting or interesting that it would lure the child onto the property to investigate or play. Common examples include discarded large appliances, an unenclosed swimming pool, or a fountain containing goldfish. Ordinary objects can also attract and injure children, such as an idling lawnmower or another dangerous piece of equipment. Children often find interest in neighborhood construction sites and equipment, wells, tunnels, and dumpsters. Of course, children also are especially fascinated by fire trucks, firefighters and fire-damaged property!
You may believe almost anything could injure a small child. After all, even a stick in the yard can be picked up and poked into an eye. But not every dangerous condition is considered an attractive nuisance. A stick isn’t inherently unusual or enticing enough to draw children over at their peril. Most natural conditions, such as a lake or a naturally steep bank, also aren’t considered attractive nuisances in a legal sense. Even a very small child may be presumed by the law to understand some dangers, such as falling from a height.
Attractive nuisance doctrine
There’s normally no particular standard of care required of property owners to safeguard trespassers from harm, but an attractive nuisance is an exception. If a property is both inviting and dangerous, the owner has a legal responsibility to make a reasonable attempt to prevent injuries to children who may wander onto the property. In many states, this rule is called the attractive nuisance doctrine. It can be roughly summarized based on the following assumptions:
- Children aren’t expected to fully realize the dangers they may encounter.
- A property owner who should realize that children are likely to stray onto the property has a heightened responsibility to prevent harm.
- An owner who fails to take reasonable precautions to prevent injury may be liable for a child’s injuries.
The attractive nuisance doctrine imposed upon the owner the duty to secure property to either of the following standards:
1) Taking precautions that are deemed “reasonable” in light of the normal behavior of young children – a much higher degree of care than required toward adults.
2) Exhibiting the same level of care as owed to “invitees” – a higher standard than required toward uninvited, casual visitors, also referred to as licensees.
The attractive nuisance doctrine arises when the situation is likely to attract the attention of a child who doesn’t necessarily realize the extent of the danger present. Generally, to be liable for injury, an owner must create or fail to maintain the harmful object. Failing to secure a dangerous building after a fire could certainly fall under these guidelines.
Who is protected?
Very young children are far from being the only ones protected by the law. Judges tend to look at each particular case and each individual child’s capacity to understand danger. For example, an Alabama court found that a 16-year-old boy might not have understood the dangers of exploring an abandoned clay pit, therefore the owner was held liable when the boy was injured. Lyle v. Bouler, 547 So.2d 506 (Ala. 1989)
As with many legal issues, the rules are rarely black and white. Frequently, the level of liability varies by situation. Consider these other examples from actual lawsuits:
In Smallwood by Smallwood v. Fornaciari,560 N.E. 2d 637 (Ill. App. 1986), a contractor left a ladder unattended in an area known to have children present. A 12-year-old climbed the unattended ladder onto the roof of a building to play and fell three stories to the ground. The owner and contractor were held liable for the following reasons:
- Children were known to play in the area.
- The roof had a sloped and slippery area, which a child may not have realized.
- The owner and contractor easily could have removed the ladder to the roof, which was an invitation to a dangerous environment.
In another case, a 10-year-old climbed upon a neighborhood roof and fell three stories while playing. There was no ladder present, or any otherwise inviting presence to the property. In Corson by Lontz v. Kosinski, 801 I: Supp. 75 (N.D. Ill. 1992), the court ruled that the owner was not legally responsible for the child’s injuries, because:
- This owner had no reason to believe that children would play on the roof.
- No hidden danger on the roof itself caused the fall.
Finally, consider Amora v. Lain, 7250 S.W. 2d 734 (Tex. App. 1986). During construction of a house, a contractor left sheetrock propped against a wall unattended. An 11-year -old, investigating the building site, was injured when the sheetrock tumbled down on her. There were grounds for a lawsuit against the contractor, because:
- Children were likely to wander onto the building site
- The sheetrock was left unattended for days.
- The sheetrock could have been easily stacked in a safer manner.
Who is responsible?
Generally, governmental departments are immune from legal recourse. Only under very specific conditions do public safety professionals have any legal responsibility to secure a property or bear any liability for the resulting damages.
The government is protected to a great degree by sovereign immunity, an exemption that precludes bringing a lawsuit against the sovereign government without the government’s consent. The doctrine of sovereign immunity originated with the maxim that “the king can do no wrong”.
While property owners bear the legal responsibility to secure their properties, the law does not require them to “child-proof” those areas. However, it expects people to be alert to potentially inviting dangers to children and to take reasonable steps to prevent harem to those too young to understand the danger. Such a course of action is almost always required after a structure fire.
Unlike traditional fire restoration companies, a new breed of trained professional service firms is emerging in many cities across the United States. These firms assist fire, police, building departments, 911 centers, insurance companies and disaster victims with the critical task of immediately and safely securing dangerous structures. They provide many services required after disastrous events, such as 24-hour board-up; roof cover; temporary fencing; winterization; and structural stabilization, including the shoring of walls, ceilings and roofs. Some even offer heavy equipment for emergency demolition and many other critical services.
Frequently, these services may be needed first to make the structure safe for fire investigators, claim adjusters and restoration companies. Additionally, fire investigators needing a building secured to protect the integrity of evidence at a suspicious scene may find these firms’ services valuable.
These specialty emergency loss containment services save insurance companies millions of dollars annually in reduced building damage costs and decreased personal injury liability claims. More importantly, these services save untold numbers of children from the inherent dangers that plague such dangerous environments.
Sense of obligation
Unfortunately, when it comes to helping a fire victim locate a provider of such services, there are still public safety officials who don’t want to become involved. Some erroneously believe that they would then, in effect, be assuming responsibility for the property that needs to be secured.
However, due to the sovereign immunity exemption, public safety officials are generally immune from such legal action and bear no legal responsibility for this essential guidance. In addition, most public safety officials aren’t legally bound to inform owners of their obligation to protect the community from dangers posed by their post-incident properties.
So why should fire chiefs become involved at all? Burned-out buildings represent a significant hazard to neighborhood children and the community as a whole. In many areas, building codes, laws or ordinances require these unsafe structures be secured immediately. Building officials may not be readily available, and as a result of industrywide insurance company cutbacks, waiting for a claims adjuster to arrive may take several days. This could unnecessarily expose the community to significant dangers for an extended time.
Protecting the safety of the community is paramount. A community relies on its public safety officials to offer guidance to distraught victims, who may be unsure of what to do after such an event. Advising the fire victims of the dangers posed to the community by an unsafe structure and of their responsibility to take preventive measures is certainly a prudent course of action and in the best interest of all.