An educational blog devoted to Florida contruction law topics by Florida Bar Board Certified Construction Lawyer, Trenton "Trent" Cotney. Please visit www.trentcotney.com for more information. Disclaimer below.
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The Attractive Nuisance Doctrine
Important precautions to protect children
Many states have what is commonly referred to as the Attractive Nuisance Doctrine, which is a concept arising from negligence and premises liability. Although there may be nuances from jurisdiction to jurisdiction, generally speaking, an attractive nuisance is something on real property that may entice children to enter your property and potentially be harmed by the nuisance. A property owner that is aware of an attractive nuisance must take precautions to protect children from it.
What are attractive nuisances? They can include things such as swimming pools, wells, equipment or machinery, or dangerous animals. In some cases, even roof tops have been considered attractive nuisances if the owner is aware that children like to climb on the roof.
To protect himself or herself from liability, a property owner should try to eliminate attractive nuisances or otherwise prevent children from obtaining access to the nuisances by installing fencing or other measures to prevent access. Property owners can also use signs or warn children and lock up areas that may contain attractive nuisances. Keep in mind that a sign may not be enough to prevent liability under the Attractive Nuisance Doctrine, especially if the child is too young to read. Furthermore, if the owner is aware of a child playing with a particular piece of equipment or entering his or her property, then that knowledge element may lead to liability under the Attractive Nuisance Doctrine.
A common attractive nuisance for roofing contractors is leaving an unattended ladder on site for inspections. Children could harm themselves by either playing with the ladder or climbing on the roof. Despite requests, inspectors are reluctant to bring their own ladders, and timed inspections are simply not practical in many locations. On the other hand, insurers dictate that no unattended equipment should be left at a residential project site without taking adequate precautions. What can a roofer do to protect itself in this situation?
There is no easy answer to this question. First, the roofing contractor should notify the owner of the ladder and to watch for any children in the area. Second, the roofer could use temporary fencing or warning signs around the ladder to draw attention to the danger. Finally, if possible, the roofing contractor could have the access point in the back yard or in a fenced off location making it more difficult for children to obtain access to the ladder. Although many inspectors require the ladder be ready for use and abutting the roof, some inspectors allow for the ladder to be placed on the ground in a secure area for access by the inspector when needed.
For roofing contractors, it is important to address the Attractive Nuisance Doctrine in the contract documents between the roofing contractor and the owner. The contract should clearly define whose responsibility it is to maintain the construction site during the course of construction. In other words, during the course of construction, the contract should identify who will control the job site. On residential projects, it is often difficult to fence off the entire construction area. However, roofers can take precautions to remove exposed materials and check for nails on a daily basis, among other things. Furthermore, the foreman or safety person for each roofing contractor should make sure to keep children, pets, and others away from the job site during the course of construction.
A claim for unjust enrichment may be brought against a contractor or owner as an equitable claim to address unexecuted change orders. As the Court stated in Della Ratta v. Della Ratta, 927 So.2d 1055 (Fla. 4th DCA 2006), "to state a claim for unjust enrichment, a plaintiff must plead the following elements:1) the plaintiff has conferred a benefit on the defendant;2) the defendant has knowledge of the benefit;3) the defendant has accepted or retained the benefit conferred;and 4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it." Trenton H. Cotney Florida Bar Certified in Construction Law Glenn Rasmussen Fogarty & Hooker, P.A. 100 S. Ashley Dr., Suite 1300 Tampa, FL 33602 (813) 229-3333http://www.glennrasmussen.com
The elements necessary to state a cause of action for fraud in the inducement are 1) a false statement concerning a material fact, 2) knowledge by the person making the statement that the representation is false, 3) intent by the person making the statement that the representation will induce another to act upon it, and 4) reliance on the representation to the injury of the other party. Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253 (Fla. 2d DCA 1994). Trenton H. Cotney Florida Bar Certified in Construction Law Glenn Rasmussen Fogarty & Hooker, P.A. 100 S. Ashley Dr., Suite 1300 Tampa, FL 33602 (813) 229-3333 http://www.glennrasmussen.com
Butler v. Yusem, 44 So.3d 102 (Fla. 2010): "there are four elements to fraudulent misrepresentation: (1) a false statement concerning a material fact; (2) the representor's knowledge that the representation is false; (3) an intention that the representation induce another to act on it; and (4) consequent injury by the party acting in reliance on the representation."
Trenton H. Cotney Board Certified in Construction LawTrent Cotney, P.A.1207 N Franklin St, Ste 222Tampa, FL 33602(813) 579-3278www.trentcotney.com