Attractive Nuisance Laws: Liability for a Child's Injuries on Private Property

When and how a property owner might be liable for injuries to a child trespasser.

By | Updated by David Goguen, J.D.

Children are entitled to extra legal protections when it comes to getting hurt on someone else's property—even when those children are technically considered trespassers. In this article, we'll take a look at some common principles of law that apply to injuries related to property conditions ("premises liability") and then focus on the "attractive nuisance" doctrine and how it works.

Premises Liability: Responsibility for Property Dangers

The main legal principle that holds the owners, occupants and renters of a property liable for injuries suffered on that property is called "premises liability". Most of these cases hinge on whether the property owner (or property manager) was negligent in connection with whatever caused the injury.

Negligence is a legal concept that holds people accountable for the unintentional harm they cause to others. To win a premises liability claim, you typically must show that the landowner, occupier, or renter (the person responsible for the condition of the property) failed to act with the appropriate amount of care and caution required, considering all the circumstances.

Guests vs. Trespassers: A Changing Premises Liability Trend

Historically, whether someone was liable for injuries that happened on their property depended on the status of the person injured. In other words, whether and why the injured person was allowed to be on the property mattered. Importantly, landowners and occupants weren't considered responsible when a trespasser was injured on their property—even if the trespasser was a child.

A trespasser is someone who unlawfully enters or remains on land that belongs to someone else. A property owner or occupant, while not allowed to purposefully harm a trespasser, usually had no legal responsibility to protect the trespasser from injury. Historically, this principle applied no matter how old the trespasser was.

Attractive Nuisance Doctrine and Property Dangers to Children

During the late 1870s, many courts became increasingly uncomfortable with the harshness of rules that basically prevented an injured child from holding a truly negligent property owner liable because the child happened to be trespassing. The legal shift was partly due to the understanding that children don't always grasp the concept of trespassing.

This new line of legal thinking prompted courts to create an exception called the "attractive nuisance doctrine". Under this approach, a property owner must take steps to fence off or otherwise make reasonably safe certain property conditions or features that have the potential to lure trespassing children.

Essentially, when an "attractive nuisance" is present, the property owner/manager needs to treat trespassing children like guests on the property, at least when it comes to ensuring their safety. Common examples of attractive nuisances include unprotected pools, construction sites, unsecured heavy machinery, and treehouses.

Proving Liability Under Attractive Nuisance Laws

What you must prove to win a liability claim for a child injured while trespassing will vary from state to state, but generally, you must show:

  • The property owner, occupant, or renter knew or should have known that children were likely to trespass onto the property.
  • The property owner, occupant, or renter knew or should have known that there was an unreasonably dangerous condition on the property that could kill or seriously hurt someone.
  • Children, in particular, would be both drawn to ("attracted" by) the dangerous condition, and unable to discover or appreciate the risk it posed.
  • The benefit of keeping the premises as is and the cost of eliminating the hazard are less than the potential risk to children.
  • The property owner, occupant, or renter failed to take reasonable steps to keep the property safe.

Generally, courts consider the age and intellectual ability of the injured child to determine if they are able to understand the risk of harm. Courts also look at whether the property owner/manager acted reasonably in maintaining the property. For example, a "DANGER: Do Not Enter" sign might be enough to warn a teenager, but not a toddler.

Liability Based on Ordinary Negligence

Many jurisdictions now use the "reasonable person" standard for anyone who enters a property, whether or not they're trespassing children. Under this approach, a landowner or occupant has a duty to warn people about known and latent (hidden) dangers not known to the person and that someone couldn't reasonably discover on their own. This duty extends to hazards or risks a property owner, occupant, or renter exercising reasonable care should have known about.

Learn more about the rules that govern liability for personal injuries on private property.

Getting Help With a Property-Related Injury Case

No matter which side of a potential premises liability injury claim you might be on, you may have questions that go beyond the scope of this article. For information that's tailored to your situation, it might make sense to speak with an experienced lawyer. Learn more about finding the right injury lawyer for you and your case.

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