The Attractive Nuisance Doctrine In Arizona

Arizona courts have long recognized claims based on an attractive nuisance, having adopted the elements stated in the Restatement (Second) of Torts, § 339:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

Significantly, in at least one case the Arizona Supreme Court has clarified that although a landowner does not generally owe a duty to trespassers to "put land in a condition reasonably safe for their reception," an exception does exist where children are concerned.

Other Arizona courts have clarified that the attractive nuisance doctrine does not apply where the attractive object is natural, such as a shrub or tree, and not placed on the property by the landowner. Moreover, the doctrine applies to child licensees and invitees, not just trespassing children.

Landowners have successfully defended attractive nuisance claims by showing that the child was supervised by an adult when the injury occurred, or that it took an unusual effort for the child to reach the place of danger.

In determining whether a valid claim based on an attractive nuisance might exist, the courts have explained that the purpose of the doctrine is to protect children from dangers that, due to their youth and inexperience, they are unlikely to appreciate.