The doctrine of attractive nuisance has long been the law of Colorado. Essentially the doctrine stated that if a landowner sees fit to keep on his premises something that is an attraction and allurement to the natural instincts of childhood, the law . . . imposes upon him the corresponding duty to take reasonable precautions to prevent the intrusion of children, or to protect from personal injury such  as may be attracted thereby.

As a consequences landowners were under a higher standard of care when it came to children entering upon their property due to something that would peak their interest such as a swimming pool. When the legislature adopted C.R.S. sect. 13-21-115 (The Premises Liability Act) it was the intention that all injury/accidents would be controlled by this statue and the categories created there.

The Premises Liability Act provides a comprehensive scheme for determining a landowner’s liability to persons injured on their land. Under the terms of the statute, persons on another’s land are classified as either trespassers, licensees, or invitees. The extent of a person’s right to recover from the landowner hinges on that person’s classification within this explicit trichotomy. See § 13-21-115(3). The statute ranks these classifications into a logical hierarchy, as it explicitly provides that “the circumstances under which a licensee may recover include all of the circumstances under which a trespasser could recover and . . . the circumstances under which an invitee may recover include all of the circumstances under which a trespasser or a licensee could recover.” § 13-21-115(3.5). The statute further provides that it “shall not be construed to abrogate the doctrine of attractive nuisance as applied to persons under fourteen years of age.” § 13-21-115(2).   Hence the purpose for this article the recent Colorado Supreme Court case of S.W., a minor, vs. Towers Boat Club, Inc., 2013 CO 72, issued 12/23/2013.  This case addresses the yet undetermined question of whether the attractive nuisance doctrine applies to all children or just those trespassing upon another’s land.

In a split decision of the high court it was determined that the attractive nuisance doctrine was applicable to all children under the age of 14 regardless of their classification under the Premise Liability Act.  The majority of the Supreme Court reasoned: the well-recognized concept that children are drawn to certain dangerous objects because of their immaturity. Therefore, regardless of the specific term used to describe the attraction, all of our cases reinforce the central precept underlying an attractive nuisance claim: that the child plaintiff must have been attracted to the object at issue, regardless of his legal classification.  at paragraph 23.

If your child has been injured on someone’s property give the lawyers at Sisun & Scriven, P.C., (303) 377-8861 a call to discuss your options.