Attractive Nuisance

An attractive nuisance is a legal term used to describe an artificial condition that is created by a property owner that could injure someone stepping onto that property. Examples may include an abandoned car, unguarded swimming pool, or an open pits.

This term is mainly directed at children due to their curious nature, but also their inability to appreciate the peril of the situation therein. The “landowner” owes no duty to a trespasser except to refrain from causing willful and wanton injury. But, this term can also accurately describe the behavior of adults (drunk college kids, bored teenagers, anyone with bad judgment, people looking for a payout, etc.)

How does this apply to construction?

Construction equipment and work zones can present many reasons for a passerby to become curious. They may enter the work area to steal, vandalize, show off to their friends, or just out of pure ignorance. Examples may include:

• A house under construction, with no doors or windows installed yet
• An open hole or excavation left unguarded
• A machine with the keys in it

Steps need to be taken to prevent this attraction, because in many cases, the construction company will be held liable for any injury that may occur. At that point the burden of proof lies on the company – the company now has to defend themselves from what is likely a ridiculous claim to begin with.

Potential outcomes

• The company has to endure the long, arduous legal process which can waste a lot of time and cost a lot of money.
• Company representatives have to dig into the files and produce good, solid proof as to why they are not held liable (responsible).
• The company can be sued and pay big money to the plaintiff (the accuser).
• Someone gets seriously hurt or killed as a result of our work area (guilt factor).

How can we prevent this?

It is our duty as a construction company to identify hazardous conditions on our work sites and to “take reasonable precautions to protect others.” This includes the general public. The general public may not recognize those hazards and may not understand the danger associated with them.

Things to remember during the workday and securing the worksite overnight:

• Assess the overall work area and determine who can fall into what. Can someone walking by trip? Ride their bike into our trench? Drive a vehicle through our work site?
• Cover any open holes with plates or plywood. Spray “HOLE” on plywood covering so they are not mistaken for just a piece of plywood laying on the ground. This communicates that there is nothing underneath that covering. (Plates can’t be moved by the average pedestrian, so this need not apply.)
• Barricade work areas. Use cones/cone bars, caution tape, orange construction fencing, etc. to make it painfully obvious to the most unreasonable person that this is a work zone – stay out.
• Use signs to warn of the work area. Road work signs, “sidewalk closed / cross here,” can all communicate to others that this is a danger area.
• Do not leave keys in machinery. Do not leave machinery and equipment (jumping jacks, chop saws, backhoes, excavators) running unless it is in line of sight and you can monitor it. A random person might jump in and take something for a joy ride.
• The goal is to create an “open and obvious” scenario. This means an “average user with ordinary intelligence would have been able to discover the danger upon casual inspection.” Most people can recognize cones, barrels, barricades, etc. These are instrumental in shifting the liability.