What's an Attractive Nuisance and Why Your Insurer Cares
Having an attractive nuisance on your property is like having a time bomb that could go off at any moment, consuming your assets and putting you in legal jeopardy.
An attractive nuisance is something so compelling that it entices people - usually children - to come onto your property and potentially harm themselves. Insurers consider swimming pools and trampolines to be magnets for attractive nuisance claims, and courts tend to punish property owners who've done nothing to prevent likely accidents.
An adult intruder who enters your home or backyard and is injured generally has no legal options, particularly if you posted warning signs and secured your property. By contrast, you could be held responsible for the harm children do to themselves if you haven't taken adequate precautions.
Property owners generally are responsible for harm caused by conditions that are both attractive and dangerous to children. Examples of attractive nuisances include:
- Open pits.
- Abandoned refrigerators.
- Power tools.
- Construction equipment.
- Aggressive dogs.
- Artificial ponds.
Strict underwriting guidelines
Underwriting for home insurance policies is becoming stricter when it comes to attractive nuisances. When you apply for a policy, expect to be quizzed about potential hazards and your ability to make sure unattended children don't have access to your property.
Amy Bach, executive director of the United Policyholders insurance consumer group, says it's important to be honest about having attractive nuisances on your property when you communicate with insurers so that you avoid rejected claims.
Because insurers understand the risks associated with attractive nuisance lawsuits, they may reject you as a policyholder if they think there's a good chance they'll end up paying a claim, says Jack Hungelmann, author of "Insurance for Dummies." Even if you're accepted, attractive nuisances can raise your home insurance rates. For example, if your dog has bitten someone, your insurer may charge you extra or exclude the animal from your coverage.
Dogs may be man's best friend, but they're a major headache for insurers. Dogs caused more than one-third of all homeowner insurance liability claims paid out in 2011, at a cost of nearly $479 million, according to the Insurance Information Institute. The average amount paid for each dog bite claim was $29,396.
"If you have dogs, especially the kind with a history of mauling people, it can be pretty tough to get insurance," Hungelmann says. "I have a client with two German Shepherds… that) are trained to protect the property. We had to call around to find insurance."
How liability insurance can protect you
According to the Insurance Information Institute, most standard homeowner's policies provide between $100,000 and $300,000 in liability coverage per incident. Generally, that's adequate for attractive nuisances, but it's always a good idea to check with your insurance company or agent. If you cause a mishap and don't have enough coverage to pay for the damages, you could lose your home or other assets.
The institute recommends a minimum of $300,000 in liability protection if you have a swimming pool, a major cause of claims. If you decide that you need extra protection, you may consider adding an umbrella liability policy. An umbrella policy takes effect when you've reached the limit on the liability coverage included in your standard homeowner's or renter's policy. For annual premium of $200 to $300, you typically can buy a $1 million personal umbrella policy.
Can you go to jail?
Although it's unusual for a property owner to be charged with a crime in connection with an attractive nuisance accident, it's can happen if the property owner was grossly negligent, says Erwin Adler, a Los Angeles attorney who handles insurance cases.
Burl Daniel, a former insurance agent in Fort Worth, Texas, who serves an expert witness in insurance lawsuits, says criminal prosecutions stemming from such cases are the exception. He says an example of criminal negligence could be having a swimming pool without a fence around it. Another could be having an unlocked gun that's accessible to a child who ends up shooting himself. A third example: Leaving a ladder on a construction site that allows a child to climb onto a building and hurt himself.
Milwaukee attorney Timothy Trecek, who handles civil injury claims, says homeowners should be concerned about criminal prosecutions. "Depending on the district attorney in that jurisdiction, they may charge you with negligent homicide," he says. "That is not such a long shot."
Even if you are charged, criminal negligence is difficult to prosecute, says Bradley Corbett, a criminal defense attorney in San Diego.
"It has to rise to the level that it is so extreme that they would display a complete indifference and disregard for human life," he says. "The one you see the most is leaving a loaded gun somewhere where a child could get it."
Although criminal prosecutions are unusual, it's wise to take precautions against having attractive nuisances on your property, says Amy Bach, the United Policyholders executive director.
"You won't necessarily go to jail," she says, "but could end up paying a lot of money."
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