I first came to Miami ten years ago for an orientation at the University of Miami with my best friend Phil. At the time, we were attending Tampa Preparatory School together and scouting out potential colleges. We left Tampa on Friday afternoon and arrived in Miami after the sun already descended and night had fallen – the time when Miami truly comes alive. I remember waking up just in time to see the neon lights of Ocean Drive through the rearview passenger window of my mother’s Mercedes. In that moment, I knew I had found the place I wanted to start my life. Miami, an “attractive nuisance.”
In the Law of Torts, The “attractive nuisance” doctrine allows a landowner to be responsible for a child’s injuries on the landowner’s property when certain conditions are met. First, the parents must show that the place where the object exists is a likely place for children to trespass. For example, a landowner living across the street from a middle school. Second, the landowner must know that the object could cause harm or death to a child. Third, the child must be incapable of understanding the risk involved with playing with the object. Fourth the landowner’s burden of eliminating the object is minute. And finally, the parent must show that the defendant failed to exercise reasonable care.
Back to Miami. I love Miami. Growing up on the beaches of Florida, I can think of few places more beautiful and perfect than this. We have one season – summer. The sun is almost always shining and there are few days out of the year you cannot leave the house in shorts and a t-shirt. When you live in Miami, you don’t have to shovel snow, remember to put chains on your tires in the winter, or dress in layers.
In addition to the perfect weather, Miami is also home to an electric nightlife where nightclubs such as Space stay open from sun down to sun up. Anyone who has ever spent their Sunday morning on the Patio would agree that this is but one of hundreds of examples of what I would like to call an attractive nuisance to the young lawyer. I remember one night not too long ago when my insomnia got the best of me and I decided to go for a 4am walk. Keep in mind; this was on a Thursday – a weekday. It wasn’t long before I was standing in front if the Clevelander, music pumping, liquor flowing, and me on the sidewalk, wiping the sleep from my eyes in awe of what I was seeing– yet another attractive nuisance. As a young lawyer, I would argue Miami itself is an attractive nuisance. But, does it pass the aforementioned four-pronged analysis?
If, for purposes of our experiment, we say the young lawyer is a child then we may arrive at the following. First the place where the object exists must be a likely place for children to trespass. Between the perfect weather, bustling nightlife, and risqué dress code, the answer is a resounding “yes.” Second, the place or object must be capable of causing death to the child (young lawyer.) Sadly, between the incidences of drunk driving, drug overdose, and rampant diseases, the answer again is “yes.” Third, the child (young lawyer) must be incapable of understanding the risk.
And theres the rub, the crux of the argument.
In order for Miami to truly be an attractive nuisance, the young lawyer must be incapable of understanding the risk. As many will attest, this argument could go either way. In the interest of full disclosure, I will be the first to admit I have found myself in such situations, before and after taking The Oath. Situations wherein were I to be observing myself, I would probably see a person that did not understand the risk because there could be no other explanation for the subsequent actions. In cases such as these – rare as they are – when my humanity surfaced, Miami is most certainly an attractive nuisance.
Now, before you lose your faith, allow me to mention this; for each one of those brief moments, I can think of thousands more where even a child would acknowledge that by my actions, I understand the risk. Working sixty-hour work weeks, going to the gym, running marathons, networking, writing, reading, praying, and volunteering my weekends with the Camillus House, Lawyers to the Rescue, and Big Brothers and Big Sisters are all examples of things I do as a young lawyer to remain ever-present of the risk and keeping Miami from becoming an attractive nuisance.
In closing, I will say that living and working in Miami as a young lawyer requires a certain balance. Avoiding the attractive nuisances abound requires the young lawyer to be constantly aware of not only the risk of their action, but more importantly, the risk involved with playing with the object. Miami is a playground. But like any good playground, there exists in the middle a seesaw. There exists the need for balance; a balance that I as a young lawyer will keep at the forefront of my thoughts and actions.