Accidents waiting to happen?

Accidents are the sixth leading cause of morbidity and mortality in the Philippines, according to pediatrician and University of the Philippines-Manila’s Ramon L. Arcadio, MD in his published article in Acta Medica Philippina entitled, “Childhood Accidents: An Emerging Concern”.

Children comprise around 40 percent of the total number of accident cases. In these cases, the children usually sustain injuries while at home or in school, and because of traffic accidents, drowning, falls, burns, and poisoning.

According to Arcadio, injuries occur more frequently during the daytime when children are most active.

“Almost all accidents take place because of human distraction,” said computer scientist and entrepreneur Sebastian Thurn.

This couldn’t be truer in the case of children. In a joint paper entitled “World Report on Child Injury Prevention,” the World Health Organization (WHO) and United Nations Children’s Fund (Unicef) reported that children are particularly susceptible to injury because of the substantial change in their physical and cognitive abilities, degrees of dependence, activities and risk behaviors as they grow older.

“As children develop, their curiosity and wish to experiment are not always matched by their capacity to understand or to respond to danger,” the paper stated. “[They] crawl about the floor, climb onto the window ledge, squeeze through stair balustrades, slide down the stair handrail, swing on the gate, run from room to room and ride bikes inside as well as out, making use of their houses in ways that seem to them reasonable, but have not apparently been foreseen by the designer.”

Attractive nuisance

Considering the vulnerability of children, the Philippines has adhered to the doctrine of attractive nuisance.

In this regard, Philippine law defines a “nuisance” as any act, omission, establishment, business, condition of property, or anything else which: (a) injures or endangers the health or safety of others; (b) annoys or offends the senses; (c) shocks, defies, or disregards decency or morality; (d) obstructs or interferes with the free passage of any public highway or street, or any body of water; or (e) hinders or impairs the use of property.

In Hidalgo Enterprises Inc. v. Balandan, the Supreme Court held that, under the doctrine of attractive nuisance, one who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fail to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby. The owner of such premises remains liable even if the child were a trespasser.

An instrumentality or appliance on one’s property may be classified as an attractive nuisance because even if its danger were apparent to those of legal age, it is so enticing or alluring to children as to induce them to approach, get on or use it.

Implementing safeguards

This attractiveness is an implied invitation to such children. Thus, property owners must ensure the implementation of safeguards to prevent danger arising from these attractive nuisances situated within their properties.

As a general rule, bodies of water, whether natural or artificial, are not attractive nuisances since children are instructed early on and thus, may be sufficiently presumed to know the danger of drowning.

Swimming pools or water tanks, however, may be considered an attractive nuisance if they had some unusual condition or artificial feature other than mere water and their location.

Other examples of attractive nuisances include abandoned or unused large appliances or equipment or any parts thereof, unsafe edifice, unsecured or abandoned excavation areas, and any other instrumentality or appliance which may prove a hazard for minors.

The heirs of children who sustain injuries or died because of attractive nuisances may hold the owner of the property where they are located for actual damages. In particular, the property owner may be held liable for all damages which are the natural and probable consequences of his negligence in failing to set up safeguards against the attractive nuisance.

Said property owner may likewise be held liable for moral and exemplary damages for physical injuries that may be sustained by the children from the attractive nuisance.