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Attractive nuisance relates to a dangerous property condition that attracts a child causing injury. There are five elements to a Texas attractive nuisance claim: 1) the place where the condition is maintained is one upon which the possessor knows, or should know, that young children are likely to trespass; 2) the condition is one of which the possessor knows, or should know, and which he realized or should realize as involving unreasonable risk of death or serious bodily harm to such children; 3) the children, because of their youth, do not discover the condition or realize the risk involved in intermeddling in it or in coming within the area made dangerous by it; 4) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared to the risk to young children involved; and 5) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children. Texas Util. Elec. Co. v. Timmons, 947 S.W.2d 191, 193-94 (Tex. 1997) (citing Restatement of Torts (Second) § 339 (1965)).  In an attractive-nuisance case, the duty to act reasonably, i.e., to conduct inspections if it would be reasonable, stems from actual or constructive knowledge that children are likely to go there. Timmons v. Texas Utilities Elec. Co., 917 S.W.2d 84, 87-88 (Tex. App.--Waco 1996) (citing Restatement of Torts § 339), rev'd on other grounds, 947 S.W.2d 191 (Tex. 1997).  "If one by exercise of reasonable care would have known a fact, he is deemed to have had constructive knowledge of such fact." Timmons v. Texas Utilities Elec. Co., 917 S.W.2d at 87-88 (citing BLACK'S LAW DICTIONARY 314 (6th ed. 1990). Ordinarily, a premises owner or occupier owes the following duties: to a trespasser, - not to injure him willfully, wantonly, or through gross negligence; (4) to an invitee - to "use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition of which the owner is or reasonably should be aware." Texas Util. Elec. Co. v. Timmons, 947 S.W.2d at 193; State Dept. of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). But "when children of tender years come upon the premises by virtue of their unusual attractiveness, the legal effect [is] that of an implied invitation to do so. Such child [is] regarded, not as a trespasser, but as being rightfully on the premises." Banker v. McLaughlin, 146 Tex. 434, 208 S.W.2d 843, 847 (1948). This is the doctrine of attractive nuisance. Id.  Under such circumstances, the law places upon the owner of such machinery or device the duty of exercising ordinary care to keep such machinery in reasonably safe condition for their protection, if the facts are such as to raise the issue that the owner knew, or in the exercise of ordinary care ought to have known, that such children were likely or would probably be attracted by the machinery, and thus be drawn to the premises by such attraction. Id. at 847-48. The "attractive-nuisance" doctrine is applicable to cases involving different dangerous instrumentalities and conditions on the premises. Id. at 848.

Statute of Limitations.  Statute of limitations refers to the time within which a claim must be brought or the claim will be barred as a matter of law. Cadle Co. v. Wilson, 136 S.W.3d 345, 350 (Tex. App.- Austin 2004, no pet.).  Normally the limitations period begins when cause of action accrues. A cause of action accrues, and the statute of limitations begins to run, when facts come into existence that authorize a claimant to seek a judicial remedy. Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 202 (Tex. 2011) (op. on reh'g).  There is a two year statute of limitations on personal injury actions.  But a person under the age of 18 at the time of injury is considered under a legal disability and the limitations period does not begin to run until the injured person turns 18.  Tex. Civ. Prac. & Rem Code. § 16.001(b).  Although there is nothing that prevents a parent or guardian as a next friend to pursue the minor's lawsuit at anytime prior to the minor turning 18.  

Attractive Nuisance

© 2014 Mark Courtois

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