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Property Owners May Be Responsible for Accidental Drowning

It is an unfortunate and specially sad fact of life that small children continue to lose their lives in Florida when they wonder into a backyard swimming pool and drown. A few days ago in Orlando, a 4 year-old boy somehow gained access to a neighbor’s backyard and was found by police face-down in the pool. According to, police officers were near his house on an unrelated call when the boy’s mother approached them saying that her son was missing. Officers attempted CPR on the child, who was immediately transported to a local hospital where he was pronounced dead.

Attractive Nuisance Doctrine

The Attractive Nuisance Doctrine is part of Tort Law. It states that a landowner may be held liable for injuries to children trespassing onto his land if the injury is caused by hazardous object or condition on the land that is likely to attract children who are unable to appreciate the risk posed by the object or condition. Over time, landowners have been held liable under this doctrine for injuries caused by abandoned cars, piles of lumber or sand, trampolines and swimming pools.

Plaintiffs must meet the following five conditions to prove that a landowner is liable under the doctrine:

  • That there is a dangerous condition to children on the land that the landowner should have been aware of;
  • That the owner knows or should have known that children often wonder in the area where the dangerous condition is located;
  • That the condition is dangerous and can likely cause injury or death to children because they cannot appreciate the risk;
  • That the utility to the landowner of maintaining the condition and expense of fixing the dangerous condition are minimal when compared to the risk it posses to children; and
  • That the landowner has failed to exercise reasonable care to eliminate the dangerous condition or adequately protect the children.

Some Florida Cases

The following Florida cases illustrate some of the specific circumstances where the doctrine has applied:

In Samson v. O’Hara, 239 So. 2d 151 (Fla. Dist. Ct. App. 2d Dist. 1970), a case very similar to the one above, a homeowner left the fence around his pool open and a child that had wandered into the yard enticed by the sound of water running into the pool from a hose fell in and died.

In Cusick ex rel. Cusick v. City of Neptune Beach, 765 So. 2d 175 (Fla. Dist. Ct. App. 1st Dist. 2000), the court found the city liable when a child fell from a tree in a public park onto a bench below, because the city knew that children had on occasion climbed the tree and should have foreseen that a child could be injured if he or she fell from the tree onto the bench.

Finally, in Ansin v. Thurston, 98 So. 2d 87 (Fla. Dist. Ct. App. 3d Dist. 1957), the court found that a landowner was liable when a child died while swimming in a man-made pit filled with water, where children were known to swim.

If one of your children has been seriously injured or lost his or her life while playing on someone else’s land or property, please accept out deepest condolences. We cannot even begin to imagine the pain you are going through. However, for the sake of your family, we recommend that you momentarily put aside this unbearable pain and immediately contact a law firm that has experience handling these cases and that can help guide you through this most difficult moment in your life. The Miami Dade County Premises Liability Law Offices of Greenberg Stone and Urbano has throughout the years represented many clients involved in premises liability cases where a child has suffered traumatic brain injuries, serious personal injuries or death. Visit our website to learn more about our firm and contact us today for a free consultation.

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