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

In some cases, the property owner can be held liable for injuries to a child trespasser.

Children are entitled to some extra legal protections when it comes to injuries that occur 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 premises liability, and then focus on the "attractive nuisance" doctrine and how it works.

Liability for Property Dangers In General

The primary legal principle that holds the owners, occupiers, and lessees of property liable for injuries suffered on their property is called premises liability, and most of these cases are governed by whether or not the property owner was negligent. Negligence is a legal concept that holds people accountable for the unintentional harm they cause to others. You must show that the land owner, occupier, or lessee (the defendant) failed to use the standard of care that would ordinarily be required in the particular situation.

Historically, whether or not a defendant was liable for injuries sustained on that property was dependent upon thestatus of the person entering the land. More modernly, however, some states have rejected this approach and use principles of ordinary negligence instead.

Liability for Injuries Sustained by a Trespassing Child

A trespasser is someone who unlawfully enters or remains on the land of another. Historically, the defendant owes no duty of care to a trespasser, except to refrain from willfully and wantonly harming the trespasser. Essentially, unless the defendant intentionally tried to harm the trespassing child, the defendant would not be liable for any injuries suffered by the child.

Attractive Nuisance Law and Property Dangers to Children

During the late 1870s, a number of courts were increasingly uncomfortable with the harshness of the rule that basically barred recovery for injured children who happened to be trespassing -- not least because children don't always grasp the concept of trespassing.

As a result, courts created an exception called the "attractive nuisance doctrine". Under this approach, a property owner must exercise reasonable care to trespassing children. What you must prove will vary from state to state, but generally, you must show:

  • the defendant knew or had reason to know that children were likely to trespass onto his or her property
  • the defendant knew or had reason to know that there existed on the property an unreasonably dangerous condition that could cause death or serious bodily harm
  • that children would be unable to discover or appreciate the risk posed by the dangerous condition
  • that the utility of maintaining the condition and the burden of eliminating it altogether are less than the potential risk to children, and
  • that the defendant failed to reasonably care for and maintain safe conditions on his or her property.

Generally, courts look to the age and intellectual ability of the injured child to determine if he or she is able to appreciate the risk of harm and whether the defendant acted reasonably in maintaining the property. For example, a "DANGER -- Do Not Enter" sign may be sufficient to warn a teenager, but not an infant. Other common examples of attractive nuisances include unprotected pools, construction sites, unsecured heavy machinery, and tree houses.

Liability Based on Ordinary Negligence

Many jurisdictions have abolished this "status"-based approach and simply use the reasonable person standard for all entrants onto the land, whether or not they are trespassing children. Under this approach, a defendant has a duty to warn of known and latent dangers which are not known to the child and which the child could not reasonably discover on his or her own. This duty extends to dangers which the defendant should have known about if he or she exercised reasonable care.

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