According to premises liability laws, landowners are generally responsible for any injuries that occur on property that is in their possession or under their control. Whether the landowner owns residential or commercial property, they will owe a certain standard of care to persons who enter their property.
All landowners have a duty to maintain and keep their property reasonably safe. At the very least, a landowner must warn people about the dangerous conditions they either know or should know about on their property. Of course, this will depend on the status of the person who enters the property. For example, if the person is an invitee, then a landowner owes them a duty to inspect their property and to warn them of any known or unknown dangers.
On the other hand, if the visitor is a licensee like a social guest or friend, then landowners do not have a duty to inspect their property for dangerous conditions. However, they do have a duty to inform them about any known dangers that are lurking on their property.
As for trespassers, this is a question that will be answered in further detail below. Trespassers are a unique category since there are some instances when a landowner may be liable for a trespasser’s injuries.
Are Landowners Responsible for Injuries to Trespassers?
In most cases, a landowner does not typically have a duty to make their land safe or warn trespassers about hidden dangers on their property. However, there is an exception for children. Since children are known to run amuck and rarely do as they are told, the law foresees that a child may become a trespasser if they see something that looks fun to interact with on someone else’s private property.
In tort law, this concept of an object tempting a child to trespass onto someone else’s private land is known as the attractive nuisance doctrine.
What Is an Attractive Nuisance?
An “attractive nuisance” can refer to anything from a pool to a trampoline to even construction equipment. Basically, any object that can tempt a child to enter someone else’s land as an uninvited trespasser may qualify as an attractive nuisance.
In the past, tort law only used to require landowners to warn trespassers of artificial dangers, such as animal traps. However, since many cases have shown that child trespassers are a group of persons who are likely to be tempted to go onto someone else’s property because they are drawn in by an attractive danger from the boundary lines of the property, the landowner is now responsible for making their land safe.
In other words, the attractive nuisance doctrine was created to mainly protect children from dangerous conditions. The reason for this is that the law believes that children are unable to appreciate dangers and risks associated with an object or dangerous condition on another’s property. Due to their various ages and levels of maturity, the law assumes that children are incapable of understanding these dangers even in group settings with some minor exceptions.
What Are the Basic Elements of Attractive Nuisance?
As previously mentioned, a landowner has a duty to take reasonable precautions to protect children from dangerous attractions on their property. However, not all dangerous conditions may be considered as attractive. In order to determine whether a condition is considered an attractive nuisance or not, it must satisfy the following elements:
- The dangerous object or condition in question exists on the property;
- The dangerous object or condition could be considered as attractive or tempting to young children;
- The child did or could not comprehend the dangers associated with the object or condition due to their age and maturity level;
- The dangerous object or condition was left uncovered and was exposed in a way that would catch a child’s eye or was near where children usually play or reside; and
- It was relatively easy for the landowner to prevent access to the dangerous object or condition in question or to at least make it safe.
What If the Danger Cannot Be Seen from the Property Boundaries?
A landowner can still be liable for injuries even if the dangerous object or condition cannot be seen from the outskirts of the property. Basically, if there was a likelihood that a child would trespass onto their land to get closer to the dangerous object or condition, then they will be held liable for any resulting injuries due to their failure to cover the dangerous object and/or condition or to at least find a way to protect the child from discovering it and getting hurt.
A landowner has a duty to fix or cover anything that could potentially injure a trespassing child on their property. A landowner should also attempt to prevent entry in any places where the landowner knows or should know that a child will trespass to get onto their property. For instance, if there is a hole in their fence or an easy way for a child to lift a latch on a gate, the landowner must repair the hole in their fence and find a sturdier lock to keep children out.
In addition, a landowner owes an additional duty to exercise reasonable care to protect children from dangerous objects and conditions on their property. Again, this means that even if the danger is not visible from the boundaries of the property, the landowner may still be held liable for any injuries to trespassing children if any of the following factors exist:
- The landowner could or should have reasonably anticipated that a child would trespass onto their land to get to the dangerous attraction;
- The measures to protect a trespassing child from harm would not place a heavy burden on the landowner and would consist of a relatively easy solution; and/or
- The landowner knew or should have known that a dangerous condition or object that would attract children was present on their land.
Thus, whether or not the dangerous attraction can be seen from the property boundaries does not matter as much as it does for the landowner to know or should have reasonably known that a child was likely to trespass onto their land to get to the dangerous object or condition. Landowners should be cautious about safety conditions on their property when it comes to neighborhoods where many children reside and play.
What Are the Defenses to a Landowner for Children Injured on Their Property?
A landowner may be able to raise some legal defenses against a claim if the child who was injured was old enough to understand the degree of danger involved. If the child was old or mature enough to do so, then it could be said that they should have had the sense to avoid it.
In addition, the attractive nuisance doctrine will also not apply in the following situations:
- If a landowner could not foresee or anticipate that a child would trespass onto their property;
- If the method to repair or cover the dangerous object or condition would place a tremendous burden or expense on the landowner; and
- If the danger was patently obvious and the child willfully and recklessly engaged with the dangerous condition or object, even though they were aware of the degree of danger and that they could potentially get injured by interacting with it.
Should I Contact a Lawyer?
If you are a landowner who is being sued because a child has been injured on your property, then you should strongly consider hiring a local personal injury lawyer to represent you as soon as possible. An experienced personal injury lawyer will be able to determine whether or not you are at fault for the child’s injuries, as well as can perform research to see if there are any defenses available that you might be able to raise against the claim.
Your lawyer can also help you prepare an argument and draft any necessary legal documents for your case. Additionally, your lawyer can explain how the laws in your area may affect the outcome of your case and can discuss what rights you have under the law.