Under premises liability, landowners will be liable for any injuries that occur on any property that is in their possession or control. A landowner who has control of a piece of property, whether its residential or commercial, owes a certain duty of care to people who enter their property. This duty is to maintain and keep the property reasonably safe or at least warn persons who enter the land of the dangerous conditions that the landowner knows or should know.

Are Landowners Responsible for Injuries to Trespassers?

Usually a landowner does not have a duty to make the land safe for trespassers. However, there is an exception for children. Children rarely do what they are told, so the law expects them to become trespassers if they see something fun on private property. Any object that can tempt children to trespass onto land is called an "attractive nuisance."

What Is an Attractive Nuisance?

An "attractive nuisance" is something like a lake, a trampoline, or an abandoned car—anything that could tempt a child to enter land uninvited. Traditionally, the law only required landowners to warn trespassers of artificial dangers such as animal traps.  However, when children trespassers are likely to be tempted to go onto the land because they can see an attractive danger from the property boundaries, the landowner is responsible for making the land safe. The attractive nuisance doctrine is designed mainly to benefit danger. Because of their various ages and levels of maturity, children are incapable of understanding or appreciating dangers or risks that are associated in a property.

What Are the Basic Elements of Attractive Nuisance?

The landowner has a duty to take reasonable precautions to protect the child against dangers of the attractions. Not all dangerous conditions are considered attractive. The elements of an attractive nuisance are as follows:

  • The dangerous condition or instrument existed on property
  • The dangerous condition was attractive or enticing to children
  • The child, by the reason of age and maturity, did not recognize the dangerous condition
  • The dangerous condition was left unprotected and exposed where children usually play or reside
  • It was reasonably easy for the landowner to prevent access or make safe

What If the Danger Cannot Be Seen from the Property Boundaries?

A landowner can be held responsible for injuries that occur if there was a likelihood of trespassing children.  The landowner must fix anything dangerous on his property that might injure a trespassing child or at least prevent entry where the landowner knows children will trespass. The landowner owes an additional duty to exercise reasonable care to protect children from dangerous conditions on property. Even if the danger is not visible, the landowner may be liable for any injuries to trespassing children if:

  • The presence or trespass of children could be reasonably anticipitated
  • The measures to protect children does not place a heavy burden on the landowner
  • The landowner knew or should have known that dangerous conditions existed on the land

What Are the Defenses to a Landowner for Children Injured on Their Property?

A landowner has a defense if the child was old enough to understand the danger involved, and therefore should have avoided it. The attractive nuisance doctrine also does not apply in the following situations:

  • The children’s trespassing was not anticipated or forseeable to landowner
  • To fix the danger will place tremendous burden and expense to landowner
  • The danger was obvious and the child recklessly, willfully participated in the dangerous condition knowing the dangers involved

Should I Contact a Lawyer?

If you are a landowner and a child has been injured on your property, you should contact a lawyer immediately to determine your options. An experienced personal injury lawyer will be able to help you determine whether you are at fault for the injuries and if so, whether there are any defenses.