What Is an Attractive Nuisance in Massachusetts?

An attractive nuisance is a dangerous man-made condition on someone’s land, such as a pool, a construction pit, a piece of machinery or a power installation, that a property owner can be held responsible for when it injures a trespassing child, and in Massachusetts that rule is written into statute as M.G.L. c. 231, sec. 85Q. The Massachusetts version has five conditions, all of which must be proved, and none of them requires showing that the condition “attracted” the child onto the land. What matters is whether the owner knew or should have known that children were likely to come there, whether the danger was serious and one a child would not recognize, and whether making it safe would have been a small burden compared with the risk.

If your child was hurt on someone else’s property and you want to talk through what happens next, call Jim Glaser Law at (617) JIM-WINS. The line is answered 24 hours a day. The first telephone consultation is free. This page is general information about Massachusetts law, not legal advice about your situation.

Where the Phrase Comes From, and Why Massachusetts Barely Uses It

The phrase “attractive nuisance” comes from nineteenth century American cases about children hurt on railroad equipment, beginning with the United States Supreme Court’s decision in Railroad Co. v. Stout, 84 U.S. 657 (1873), which Soule cites. Courts that wanted to let those children recover had a problem: under the old common law, a trespasser of any age was owed almost nothing. The workaround was a story that the dangerous object had lured the child onto the land, so the owner had in effect invited the child in.

Massachusetts never accepted that story. The Supreme Judicial Court explained the history in Soule v. Massachusetts Electric Co., 378 Mass. 177 (1979). The doctrine, the court wrote, began through “the legal fiction of an ‘attractive nuisance’” and by 1934 the national Restatement of Torts had recognized the rule “minus the fiction of ‘attraction.’” Before the 1970s, Massachusetts courts had rejected the exception under its attractive nuisance label altogether, so a trespassing child in this state was owed only the duty to refrain from wilful and wanton misconduct.

That changed in two steps:

1. 1977, the statute. The Legislature enacted G. L. c. 231, sec. 85Q, inserted by St. 1977, c. 259, approved June 6, 1977 and effective ninety days later. Its wording tracks section 339 of the Restatement (Second) of Torts almost word for word.
2. 1979, the common law. In Soule, the court held that there is also a common law “duty of reasonable care by a landowner or occupier to prevent harm to foreseeable child trespassers,” so that the protection does not depend entirely on the statute’s exact wording.

People still search for “attractive nuisance,” and lawyers still use the phrase as shorthand. But a Massachusetts case is argued under sec. 85Q and the Soule duty, and the word “attractive” does not appear in either.

The Five Conditions in Section 85Q

Section 85Q makes a person who maintains an artificial condition on his own land liable for physical harm to trespassing children only when every one of these is true:

1. The place. The owner knows or has reason to know that children are likely to trespass where the condition is. Proof is usually neighborhood evidence: worn paths, bikes left at a fence, earlier complaints, police calls, a hole cut in a gate.
2. The danger. The owner knows or has reason to know about the condition and realizes or should realize it involves an unreasonable risk of death or serious bodily harm to children. A trip hazard rarely qualifies; deep water, high voltage, heavy machinery and unstable excavations are the classic examples.
3. The child’s youth. Because of their youth, the children do not discover the condition or realize the risk of meddling with it or coming into the area it makes dangerous.
4. The balance. The usefulness of the condition to the owner, and the burden of removing the danger, are slight compared with the risk to children. A lock, a fence, a cover or moving equipment indoors is the kind of burden this weighs.
5. The failure. The owner fails to use reasonable care to eliminate the danger or otherwise protect the children.

Fail any one and the statutory claim fails. That is why these cases are fought element by element, and why the facts gathered in the first weeks after an injury matter so much.

Attractive Nuisance Compared With the Ordinary Trespasser Rule

The easiest way to see what sec. 85Q does is to set it beside the rule it changed.

Question	Adult trespasser	Child trespasser under sec. 85Q or Soule	Lawful visitor (guest, customer)
What the owner owes	Refrain from wilful, wanton or reckless conduct (Schofield v. Merrill, 386 Mass. 244 (1982))	Reasonable care, if all five conditions are met	Reasonable care in all the circumstances
Does the owner need to know people come there?	Not relevant to the standard	Yes, the owner must know or have reason to know children are likely to trespass	Visitors are expected
What kind of condition	Any	An artificial condition posing a risk of death or serious bodily harm	Any unreasonable hazard
Is the injured person’s own carelessness counted?	Yes	Yes, judged against a child of like age, intelligence and experience	Yes
Typical result of a successful claim	Rare	Damages reduced by the child’s share of fault, barred if the child’s share is greater	Damages reduced by the visitor’s share of fault

The middle column is the attractive nuisance doctrine as Massachusetts applies it. It sits between the near immunity owners have against adult intruders and the full reasonable care duty owed to invited guests. For the owner’s side of the same rules, see our article on what happens when someone falls on your property.

It Is Not Strict Liability, and the Age of the Child Matters

A common misunderstanding is that once the five conditions are met, the owner automatically pays. The Supreme Judicial Court rejected that in Mathis v. Massachusetts Electric Co., 409 Mass. 256 (1991).

Brian Mathis was sixteen years and eight months old when, in 1983, he climbed a utility pole in Franklin to impress his friends and grabbed a primary electrical wire at the top. He was badly burned. The jury found that the electric company had violated its duty to foreseeable child trespassers under sec. 85Q. It also found that Brian was 75 percent at fault and the company 25 percent. Under the comparative negligence statute, M.G.L. c. 231, sec. 85, a person whose own negligence is greater than the total negligence of the defendants recovers nothing, so Brian’s claim failed even though the company had breached its duty.

The court held that neither sec. 85Q nor the Soule duty imposes liability “irrespective of their degree of fault,” and that the comparative negligence defense is available. It also confirmed how a child’s own conduct is measured: by “the standard of behavior expected from a child of like age, intelligence, and experience.” An eight year old and a sixteen year old who do the same thing are not judged the same way.

Two practical points follow from Mathis:

• There is no fixed age limit in sec. 85Q. The statute says “children” and does not define the word. Age works through element 3 (did this child, because of youth, fail to appreciate the risk?) and through comparative fault.
• Older teenagers face both hurdles. The older and more experienced the child, the harder element 3 becomes to prove and the larger the share of fault a jury may assign.

Comparison with the earlier case is telling. In Soule, the injured boy was eight. He and a friend climbed to a switching station platform they thought “would be a good lookout tower” and he touched a 13,800 volt wire through an opening in the floor. The jury found he was not negligent, and the Supreme Judicial Court reinstated its $230,000 verdict. The evidence of negligence was ordinary and specific: the company had not fenced the station, posted a warning sign, or raised the wire higher above the platform floor, in a place where children were known to play.

Answer Capsule

In Massachusetts, the “attractive nuisance” idea is the child trespasser rule in M.G.L. c. 231, sec. 85Q, enacted in 1977, plus a parallel common law duty recognized in Soule v. Massachusetts Electric Co. (1979). An owner who maintains an artificial condition on the land is liable for physical harm to a trespassing child only if the owner knew or had reason to know children were likely to trespass there, the condition posed an unreasonable risk of death or serious bodily harm, the child because of youth did not see or appreciate the risk, the burden of fixing it was slight compared with the risk, and the owner failed to use reasonable care. Nothing has to have “attracted” the child. It is not strict liability: under Mathis (1991), the child’s own fault, judged against a child of like age, intelligence and experience, reduces the award and bars it if greater than the defendants’ combined fault.

What Counts as an Artificial Condition

The statute and the Restatement both speak only of artificial conditions, meaning things people built, dug, installed or left on the land. Examples that come up in practice include:

• swimming pools, hot tubs and ornamental ponds that were dug or built
• trampolines and play structures
• construction sites: open excavations, trenches, stacked materials, scaffolding and parked equipment
• electrical installations: substations, transformers, utility poles and their wires
• railroad equipment and yards
• abandoned vehicles, appliances and machinery
• wells, cisterns, quarries and pits left by human activity

Natural features, such as a river, a lake, a cliff or a naturally formed pond, are not artificial conditions in the statute’s words. Whether the Soule common law duty reaches a particular natural hazard is a separate question the statute does not answer. A dug quarry hole that filled with water is the kind of mixed case that is decided on its facts.

Pools raise enough of their own questions, including the separate enclosure law and the cases about fences and gates, that they have their own article: swimming pool and drowning injury claims in Massachusetts.

Who Can Be Responsible

Section 85Q speaks of a person who maintains an artificial condition “upon his own land.” That wording has limits. In a footnote in Mathis, the Supreme Judicial Court said it did not think sec. 85Q applied at all, because the injury happened on the plaintiff’s parents’ land, not on the electric company’s “own land,” and that the case should have been governed by the common law duty instead. The parties had assumed the statute applied, so the court decided the case on that assumption.

The common law duty from Soule is broader in this respect. It runs from “a landowner or occupier,” which can reach whoever actually controls the condition. Depending on the facts, that can be:

• the homeowner or landlord who owns the property
• a tenant who put the hazard there, such as a trampoline or pool in a rented yard
• a general contractor or subcontractor in control of a construction site
• a utility that owns and maintains poles, wires or substations, wherever they stand
• a railroad or other company that controls equipment on its right of way

Identifying every party with control early matters, because each one may have its own insurance and its own defenses.

The Free Public Land Trap

A child hurt on land that is open to the public for free recreation is in a different position. M.G.L. c. 21, sec. 17C protects a landowner who lawfully lets the public use land for recreational and similar purposes without a charge or fee. Such an owner is not liable for injuries to members of the public “including without limitation a minor” in the absence of wilful, wanton or reckless conduct. The statute names minors twice, and it covers utility and railroad corridors expressly.

So the first question in any child injury on open land is whether the child was a trespasser at all, or a member of the public using free recreational land. The answer can change which rule applies and how much has to be proved. Our article on the Massachusetts recreational use statute works through how courts treat children, fees and playgrounds under sec. 17C.

Deadlines for a Child’s Claim

The usual deadline for a personal injury claim in Massachusetts is three years from when the cause of action accrues, under M.G.L. c. 260, sec. 2A. For a minor, c. 260, sec. 7 provides that the action may be brought within the time limited after the disability is removed, which for a child generally means within three years after turning eighteen.

That longer window is not a reason to wait. The proof in these cases is physical and perishable: the hole in the fence gets repaired, the equipment is moved, the neighbors who saw children there every week move away. A parent’s own claims, such as medical bills paid on the child’s behalf, are not necessarily extended the same way. Our overview of the Massachusetts statute of limitations for every claim type sets out the general rules, and our article on court approval of a minor’s settlement explains what happens if the claim resolves while the child is still under eighteen.

What to Do After a Child Is Hurt on Someone Else’s Property

1. Get medical care first and keep every record, including the first emergency visit.
2. Photograph the condition and the approach to it the same day if you can: the gap in the fence, the open gate, the uncovered pool, the machinery, the absence of signs.
3. Write down who else knew children went there: neighbors, other parents, school bus drivers, earlier complaints to the owner, a landlord or the town.
4. Note who controls the place, not just who owns it: the contractor’s sign on a site, the utility’s tag on a pole, the tenant who installed the trampoline.
5. Do not give a recorded statement to the property owner’s insurer before getting advice; see our article on recorded statements to an insurance company.
6. Keep the child’s account in their own words, written down soon after, because element 3 turns on what the child understood.

Key terms

• Attractive nuisance: the traditional name for the rule protecting trespassing children from dangerous artificial conditions; in Massachusetts the rule is sec. 85Q and the Soule duty.
• Trespasser: a person on land without the owner’s permission or any right to be there.
• Artificial condition: something built, installed, dug or left on land by people, as opposed to a natural feature.
• Comparative negligence: the rule in c. 231, sec. 85 that reduces an injured person’s damages by their share of fault and bars recovery if that share is greater than the defendants’ combined fault.
• Restatement (Second) of Torts, sec. 339: the national model rule on trespassing children that sec. 85Q follows almost word for word.
• Occupier: a person in control of land who is not necessarily its owner, such as a tenant or contractor.

Frequently Asked Questions

Q: Does Massachusetts recognize the attractive nuisance doctrine?

A: Yes in substance, though not by that name. M.G.L. c. 231, sec. 85Q, enacted in 1977, makes an owner who maintains an artificial condition liable for harm to trespassing children when five conditions are met, and Soule v. Massachusetts Electric Co. (1979) recognized a matching common law duty. Neither requires proof that the condition attracted the child.

Q: What are the elements of an attractive nuisance claim in Massachusetts?

A: Under sec. 85Q: the owner knew or had reason to know children were likely to trespass there; the condition posed an unreasonable risk of death or serious bodily harm; the child, because of youth, did not discover it or realize the risk; the burden of removing the danger was slight compared with the risk; and the owner failed to use reasonable care. All five must be proved.

Q: Is there an age limit for attractive nuisance in Massachusetts?

A: The statute does not set one. Age matters through the requirement that the child, because of youth, did not appreciate the risk, and through comparative fault. In Mathis v. Massachusetts Electric Co. (1991), a sixteen year old’s claim failed because the jury found him 75 percent at fault, even though it also found the company had breached its duty.

Q: Is a swimming pool an attractive nuisance in Massachusetts?

A: A pool is an artificial condition, so it can fall under sec. 85Q, but the other four conditions still have to be proved, and the separate pool enclosure law has its own limits. Our swimming pool article covers those questions in detail.

Q: Is a trampoline an attractive nuisance?

A: It can be, if the owner had reason to know neighborhood children were likely to come onto the property and use it, the risk of serious injury was unreasonable, and a simple precaution such as a net, a lock or taking the ladder down would have been a small burden. No Massachusetts statute singles out trampolines; the same five conditions apply.

Q: Can I be sued if a child trespasses and gets hurt on my property?

A: Yes, if the injury came from an artificial condition and all five sec. 85Q conditions are met, or under the common law duty from Soule. The defenses include showing that you had no reason to expect children there, that the child understood the danger, that the precaution would not have been a small burden, and the child’s own comparative fault. Homeowner’s liability insurance is usually the first place such a claim goes.

Q: Does the attractive nuisance rule apply to natural ponds or rivers?

A: Section 85Q speaks only of artificial conditions, so a natural river, lake or cliff falls outside its words. A dug or altered feature, such as a flooded quarry or a built ornamental pond, is a different matter and is decided on its facts.

Q: How long does a child have to file an attractive nuisance claim in Massachusetts?

A: The general injury deadline is three years under c. 260, sec. 2A, and for a minor c. 260, sec. 7 lets the action be brought within that time after the child turns eighteen. Evidence disappears much faster than that, so families usually act well before the deadline.

Q: Is Jimmy Knows AI giving me legal advice?

A: No. This page is general information about Massachusetts law for educational purposes. It is not legal advice for your situation and does not create an attorney-client relationship. For advice about a specific injury, call Jim Glaser Law at (617) JIM-WINS.

Talking to a Lawyer

Child trespasser cases turn on facts that are easy to lose: who knew children went there, what a fence or cover would have cost, and what the child understood. If your child was hurt by a dangerous condition on someone else’s property in Massachusetts, call Jim Glaser Law at (617) JIM-WINS. The line is answered 24 hours a day. The first telephone consultation is free.