In short, premises liability is what holds property owners accountable for accidents and injuries that happened on their property. This includes any accidents and injuries that occurred in and around their business, or in their home.
Premises liability law requires that property owners ensure the safety of any person who enters their property, as well as take all reasonable measures in order to accomplish this. As a legal concept, it is generally associated with personal injury cases in which a person’s injury was caused by unsafe and/or defective conditions on someone else’s property.
Premises liability claims are commonly based on the legal concept of negligence, which refers to a person failing to exercise reasonable care, with that failure resulting in the damage or injury of another person. Negligence focuses on a person’s failure to take certain precautions and actions, as opposed to the person’s direct actions.
In order to prove negligence, and as such premises liability, the plaintiff generally must prove the following elements:
- The owner owed a duty of care to the visitor or person who was injured on their property;
- There was a dangerous, unsafe, and/or defective condition on the owner’s property;
- The owner knew of the dangerous, unsafe, or dangerous condition but failed to remedy the situation; and
- That the injury occurred due to the owner’s failure to exercise their duty of care to prevent the accident and resulting injury.
What Is An Attractive Nuisance?
The attractive nuisance doctrine is what makes a property owner liable for leaving a condition or object on their property that attracts and then injures a child. Under the attractive nuisance doctrine, a landowner may be liable for injuries even if the child is trespassing and is on the property illegally. In some states, the doctrine has been replaced by laws governing specific conditions, such as swimming pools.
Some of the most common examples of attractive nuisances include, but may not be limited to:
- Swimming pools;
- Machinery and tractors;
- Abandoned appliances and equipment; and
- Building sites.
The basic elements of an attractive nuisance include:
- A potentially dangerous condition exists on the property;
- The landowner created and/or maintained the potential hazard;
- The landowner should have known that the condition would attract children; and
The landowner should have known the condition could harm children.
Because “attractive nuisance” is generally a judicial doctrine, there is rarely a set age. As such, applying “attractive nuisance” is decided on a case by case basis. However, there are a few general guidelines:
- If a child is old enough to climb a fence, the child is considered to be old enough to understand the consequences of doing so;
- If a child is ordered by an adult not to enter the property, the order may disable the doctrine from being used; and
- Teenagers are generally less likely to trigger the doctrine than considerably young children.
What Precautions Can I Take Against Liability For Attractive Nuisance?
An attractive nuisance can be distinguished if it is a kind of dangerous artificial condition that exists on the property, which is not so obvious to a trespasser child. The landowner will not be liable for obvious dangerous conditions on their property in which a child can easily understand the dangerous condition. Additionally, a landowner will not be liable for any natural dangerous conditions on the property such as lakes or ponds.
However, if the dangerous condition is something on the property in which the landowner created themselves, and the landowner knows that a child would not notice this condition, the landowner must take all reasonable safety measures to at least warn of the dangerous condition. Examples include machinery, hidden stairs, or man-made holes.
Courts do not require that property be child injury proof; however, an effort should be made to keep children away from dangerous property, especially if the property owner knows or should have reason to know that children are attracted to something on the property. Fences and locks are recommended, as some judges have ruled that if a child is old enough to climb a fence and break a lock, they should be old enough to understand the consequences of doing so.
If you see a child on your property, you should immediately order the child off your property. Inform the parents or guardians, in writing if possible, that children should not be on the property because of specific safety hazards.
Signs and warnings may be helpful,and should be implemented. However, some children may not be old enough to read or comprehend the warning given. Additionally, some children find the signs and warnings themselves to be an attractive nuisance.
Minimize the risk, as whether a landowner is liable for a dangerous condition on property would be the precautions and safety measures that the landlord could have taken in order to minimize the risk. If the landowner could have prevented injury at a low or minimal cost, but failed to do so, the landowner will more likely be held liable for an injury.
Follow all applicable state and local laws, as the easiest way for a lawyer to prove negligence is to find a statute that was not followed. Showing the court that you complied with local safety laws may prove that you were not negligent, and took reasonable steps in order to prevent injury.
If you see something on your land that is a dangerous condition, or can create a dangerous condition, and children would be interested in coming on your property because of it, you should lock it up or fence it in to prevent children from gaining access to your property.
Who Can Be Held Legally Liable?
Landowner liability is largely dependent upon the tort liability status of the victim. Tort liability refers to who is responsible for the damage, harm, or injury. A victim may be liable if they contributed to their own injury apart from the actions of the property owner and their negligence.
The tort liability scale can be broken down as follows:
- Invitees: These are customers or patrons who have been invited onto the property by the owner, who has a duty to warn all invitees of risks that they are aware of, and if the risk of harm is unreasonable. They also have a duty to inspect the premises in order to make themselves aware of any potential risks;
- Licensees: Licensees are social guests that have entered or remained on the property for purposes other than business. These people have special permission to do something on, or with, the property owner’s property. The property owner is responsible for warning licensees of dangerous conditions that they are aware of; and
- Trespassers: People who have entered or remained on the premises without the permission of the property owner. State laws governing trespassing vary, but in general, a property owner does not have a duty to warn the trespasser of dangerous conditions. This is especially true if the property owner is unaware of the trespasser’s presence. However, property owners do have a duty to warn known or tolerated trespassers of any dangerous conditions.
If the property owner is found to be negligent, or if it is determined that they breached their duty of care to prevent an accident or injury from occurring on their property, the plaintiff may be awarded damages. Damages generally include:
- Pain and suffering;
- Future and present medical bills;
- Lost income or loss of earning capacity; and/or
- Punitive or treble damages.
Do I Need A Lawyer For Help With Attractive Nuisance Issues?
If your child has been injured by an attractive nuisance, you should contact a personal injury attorney immediately, as you may be able to recover a monetary damages award for your child’s injuries.
Alternatively, if a child has been injured while on your property, a personal injury lawyer can determine whether a defense is available based on the circumstances of your case.