Can You Be Liable for Children Trespassing on Vacant Property?

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 What Is Premises Liability?

Premises liability holds property owners responsible 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.

These laws require that property owners ensure the safety of any person who enters their property, and take all reasonable measures in order to accomplish this. As a legal theory, it is generally associated with personal injury cases in which a person’s injury was caused by unsafe or defective conditions on someone else’s property.

Premises liability claims are frequently based on the legal concept of negligence. This 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 focusing on the person’s direct actions.

In order to prove negligence, and therefore premises liability, the plaintiff must prove the following elements:

  1. The owner owed a duty of care to the person injured on their property;
  2. There was a dangerous, unsafe, or defective condition on the owner’s property;
  3. The owner knew of the dangerous, unsafe, or dangerous condition but failed to remedy it; and
  4. That the injury was the result of the owner’s failure to exercise their duty of care to prevent the accident and resulting injury.

A duty of care is generally owed to another person in any situation in which a person may foreseeably be injured due to another’s actions, or inaction. A breach of this duty occurs when the person who owes the duty does not act as reasonably or prudent as another person would under the same circumstances.

It must be proven that the property owner’s negligence was the “actual and proximate” cause of the injuries being claimed, which is also referred to as causation. Once the other three elements have been proven, the plaintiff must prove that there was some quantifiable loss or damage resulting from the property owner’s negligence.

Who Can Be Held Liable Under This Theory?

Landowner liability depends on the tort liability status of the victim. A tort is a legal term that describes a violation in which one person causes damage, harm, or injury to another person. Tort liability specifically refers to who is responsible for the damage, harm, or injury. It is important to note that a victim may be liable if they contributed to their own injury, apart from the actions of the property owner and their negligence.

Generally speaking, a property owner owes the highest duty of care to invitees, then to licensees. Finally, property owners owe little to no duty of care to trespassers.

The tort liability scale can be broken down as follows:

  • Invitees: Customers or patrons who have been invited onto the property by the owner. As such, the property owner has a duty to warn all invitees of risks that they are aware of, if the risk of harm is unreasonable. Additionally, the property owner has a duty to inspect the premises in order to make themselves aware of any risks;
  • Licensees: 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, as well as providing warning if the licensee did not know or did not have a reason to know about the dangerous conditions; and
  • Trespassers: People who have entered or remained on the premises without the permission of the property owner. State laws governing trespassing vary, but a property owner generally 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.

Special duties apply to child trespassers, in that property owners must take special precautions in order to prevent harm to child trespassers. This is because of the attractive nuisance doctrine, which will be further discussed below. What this means is that if the property owner has something on their property that would attract children to use it, such as a slide, they must take reasonable precautions to ensure that the slide is safe because it is likely to attract children.

If the property owner is found to be negligent or breached their duty of care to prevent an accident or injury from occurring on their property, the plaintiff may be awarded damages, such as:

  • Pain and suffering;
  • Future and present medical bills;
  • Lost income or loss of earning capacity; and/or
  • Punitive or treble damages.

The property owner may also be ordered to repair or fix the dangerous condition that caused the injury.

Are Owners Of Vacant Property Liable If A Child Is Injured While Trespassing?

A landowner can be liable if a child is injured while trespassing on vacant property, but only if the landowner engaged in willful and wanton misconduct. Another circumstance would be if the vacant property is considered to be a public nuisance. Courts generally treat children trespassing on vacant property the same as adult trespassers.

Landowners generally are not required to make a vacant property safe for use by any unforeseeable trespassers. As such, it is unusual for a landowner to be held liable for a child who was injured on vacant property.

Willful and wanton misconduct occurs when the vacant property owner intentionally creates conditions that are more than likely to lead to an injury. An example of willful and wanton misconduct would be if a vacant landowner dumps and hides toxic waste on the vacant property in a residential neighborhood, after discovering that the waste is harmful to humans.

The facts of each case can differ, but in all cases of willful and wanton misconduct, the defendant must have created a risk that is considered to be excessive and unreasonable.

Can A Vacant Property Be A Nuisance?

In general, there are two types of nuisances in cases involving liability for an injured child on vacant property. The first is a public nuisance, which is an unreasonable interference to the people’s right to enjoy a public place. In the case of a vacant property, a public nuisance can include conditions that endanger public health, safety, peace, and/or comfort.

Examples include:

  • Pollution of public waterways;
  • Unsafe walkways; and/or
  • The use of poisonous substances in public areas.

An example of this would be how a vacant property in a high traffic area that has an unstable foundation may be considered a public nuisance. If such a foundation collapsed while trespassing children entered the property, the owner could be held liable for their injuries.

The second type of nuisance associated with child trespassers is the attractive nuisance. The attractive nuisance doctrine involves features or objects on a property that are attractive to children who do not have the ability to appreciate the risk involved with the feature or object. The most common examples of an attractive nuisance would be pools and trampolines.

However, vacant landowners are likely not responsible for this type of nuisance. The exception to this would be if they create the nuisance, or fail to exercise reasonable care for a pre-existing attractive nuisance. In uncommon cases, the vacant property itself may be considered an attractive nuisance.

Some states hold that vacant property owners are automatically liable for children who are injured on their property. These laws require vacant landowners to adhere to certain conditions for their property, and they are automatically liable for a child’s injury if they fail to maintain such conditions.

Do I Need A Lawyer For Children Trespassing On Vacant Property?

If your child was injured while trespassing onto a vacant property, you should consult with a personal injury lawyer. Your personal injury attorney can help you determine your legal rights and options according to your state’s specific laws, and will also be able to represent you in court, as needed.


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