The Attractive Nuisance Law in Texas
Texas has a rule that can hold a property owner responsible when a child gets hurt on land the child was never invited onto. The “attractive nuisance” doctrine in Texas covers a young child who was enticed onto a property by something dangerous a person built or placed there, and Texas has used the rule for more than seventy-five years.
A young child who gets hurt by a dangerous thing on someone else’s property may have a case even though nobody invited them onto the land.
A Trespassing Child Can Be Treated as an Invited Guest in Texas
Texas asks very little of a property owner toward a trespasser. The Texas Supreme Court has described the only duty as avoiding willful, wanton, or grossly negligent injury, and an adult who cuts across a fenced lot gets nothing more than that.
Small children get handled differently. When a dangerous thing on the property is unusually attractive to a young child, Texas treats the child as being there by invitation rather than as a trespasser, and the owner owed the same care owed to a customer walking into a store.
Children Who Were Already Allowed to Be There
Attractive nuisance only applies when your child had no permission to be on the property. If your child was welcome there, the case skips the doctrine entirely.
Texas divides visitors into three groups, and a child living at an apartment complex is in the best one, because a landlord’s tenant is an invitee and so is any guest of that tenant. An owner who owes ordinary care has to inspect for dangers and either fix them or warn about them.
- A child living at an apartment complex, and friends visiting: invitee
- A child at a business open to the public, like a store or restaurant: invitee
- A child visiting a home as a social guest: licensee, and the owner has to warn about or make safe a danger the owner already knows about
- A child who came onto the property without permission: trespasser, and attractive nuisance is what opens the case
Property Dangers That Can Lead to Texas Cases
Texas separates property dangers into things a person made and things nature made, and only the man-made side supports an attractive nuisance case.
Apartment and HOA Swimming Pools
Texas law requires an apartment complex, condominium project, or homeowners association with a pool to enclose the pool yard completely. Chapter 757 of the Health and Safety Code spells out what the enclosure needs:
- At least 48 inches tall, measured from the ground on the side away from the pool
- No gap underneath big enough for a four-inch ball to pass through
- Separate requirements for gates, doors, and any window that opens into the pool yard
A sagging fence, a gate propped open, or a latch nobody fixed puts the property out of compliance with a statute written to keep small children away from water.
Construction Sites and Open Excavations
Trenches, foundation holes, and half-framed structures are all man-made, and a site left open overnight in a neighborhood where kids play fits the rule well. Covering a trench at the end of the day costs almost nothing.
Man-Made Ponds, Pits, and Stock Tanks
A hole someone dug that later filled with rain counts as man-made, even though the hazard is water. Quarry pits, dug stock tanks, and detention ponds built as part of a subdivision all belong in this group.
Machinery, Equipment, and Utility Towers
Equipment left where a child can reach the controls, and climbable structures carrying electricity, have both produced Texas cases. Age plays a bigger part here, since a teenager who understands electricity is treated differently from a six-year-old.
Creeks, Lakes, and Rivers
Nature is where Texas stops. A Texas appellate court ruled for a landowner after a four-year-old drowned in a creek on undeveloped land:
- Attractive nuisance covers things a person created and maintained
- An owner has no duty to fence lakes, rivers, trees, or creeks
- Knowing children play in the water on the land does not create a duty to build a barrier
- Development done by other people nearby does not turn a natural creek into a man-made hazard
Property Opened Up for Recreation
If a landowner lets people onto the property for swimming, fishing, camping, hiking, or anything else outdoors, Chapter 75 of the Texas Civil Practice and Remedies Code lowers what that owner has to do to keep them safe, and city, county, and state land works the same way. An owner in that position owes a visitor no more than what a trespasser gets.
Even with the above, attractive nuisance still holds, other than the following exceptions:
- Land being used as a community garden
- Farm or ranch land, if the injured child was over sixteen
- Land an electric utility opened to the public under an agreement with a city or county
An owner who was grossly negligent, or who acted with malicious intent or in bad faith, is still responsible for what happened to your child.
Five Things a Texas Case Has to Prove
- A person built, dug, installed, or placed the dangerous thing, rather than nature putting it there.
- The owner knew, or had reason to know, that children were likely to get onto the spot where the danger was.
- The owner knew, or had reason to know, that the danger could kill or badly hurt a child.
- Your child was too young to spot the danger or realize the risk of going near it.
- Making the danger safe would have been cheap and easy compared with the risk, and the owner did nothing.
Number four does most of the work in a contested case. Number two is where a neighbor who complained, a tenant who reported a broken gate, or an earlier injury at the same spot changes everything.
Who Can Be Held Responsible in a Texas Case
Responsibility follows control of the property, so the name on the deed is not always the only answer. A property manager can be liable, and so can a tenant or lessee who occupies and controls the land, along with a contractor who took over control of and responsibility for the premises.
Parties who end up on the other side of a child injury case:
- The owner of record
- The management company running an apartment complex day to day
- A homeowners association that owns or maintains the pool
- A general contractor who left a construction site open overnight
- A pool or grounds maintenance company hired to keep the area secure
Working out who had control usually takes the lease and any management or maintenance contract, and none of those are public records a parent can pull on their own.
Age Limits Texas Applies
Texas has not established a strict cutoff age for the attractive nuisance doctrine. The question is whether the child, because of their youth or level of maturity, was too young to appreciate the danger.
Some general boundaries have emerged from Texas cases:
- Most cases applying the doctrine have concerned children twelve or younger.
- The doctrine ordinarily does not protect a typical fourteen-year-old from an open and recognizable danger.
- An older child who lacks the maturity or intellectual development typical for their age may still qualify.
- Some hazards may be difficult for an immature teenager to appreciate even though an adult would recognize the danger.
In 1997, the Texas Supreme Court rejected a claim brought after a fourteen-year-old boy climbed a 90-foot electrical transmission tower and was killed. The court found that he appreciated the general danger because he knew electricity was dangerous, had repeatedly been warned not to climb the tower, and ignored warnings from friends that he could be electrocuted. The decision did not create an automatic age limit for all fourteen-year-olds.
Shared Fault and the 51 Percent Rule in Texas
A person bringing a case cannot recover anything if their share of responsibility comes out greater than 50 percent.
Expect the property owner to argue a parent should have been watching more closely, since supervision is the standard defense in a child injury case. A jury sets the percentages, and evidence that your child was too young to recognize the hazard cuts against a heavy fault assignment.
Two-Year Deadline for a Texas Child Injury Case
Texas gives two years to bring a personal injury case, counted from the day the injury happened, and two years from the date of death when a child dies. A separate provision pauses the deadline while the injured person is a minor.
Two additional things to keep in mind:
- The pause covers your child’s own case, and nothing else — Medical bills you paid while your child was a minor are your case, not your child’s, so you have two years from the injury to bring them.
- A city, county, school district, or other government owner has notice requirements that come due sooner than two years
Filing sooner rather than later also protects the proof. Gates get repaired, pool fences get replaced, and pits get filled, so a photo taken as soon as possible after it happened shows what a description two years later cannot. Be sure to ask an attorney about all the deadlines that apply in your particular case.
Getting Answers About a Child Injury on Someone Else’s Property
No two attractive nuisance cases look alike. What the danger was, who owned or ran the property, whether anyone had raised the problem before, how old your child was, and what your child could have understood about the risk all pull in different directions, and the answers are never obvious on the surface.
Adam Loewy and the Loewy Law Firm team handle premises liability cases for children in Austin and across Texas. Call (512) 280-0800 for a free, no obligation consultation or send a text to (512) 779-3547 (text only).
The content on this website is for general informational purposes and should not be considered legal advice. Laws change, and case outcomes depend on specific facts. Viewing this material does not establish an attorney-client relationship. For legal guidance on your specific situation, consult a qualified attorney.