Sometimes a landowner can be liable but only if the landowner engaged in willful and wanton misconduct or the vacant property is considered a public nuisance. Courts generally treat children trespassing on vacant property the same as adult trespassers.
Landowners usually are not required to make a vacant property safe for use for any unforeseeable trespassers. Thus, it is unusual for a landowner to be held liable for a child injured on vacant property.
What is Willful and Wanton Misconduct?
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 is a vacant landowner dumps and hides toxic waste on the vacant property in a residential neighborhood after discovering 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 was excessive and unreasonable.
Can a Vacant Property Be a Nuisance?
There are typically two types of nuisances in cases involving liability for an injured child on vacant property. The first is a public nuisance.
A public nuisance 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 or comfort.
Examples include pollution of public waterways, unsafe walkways, or the use of poisonous substances in public areas. 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 may be liable.
The second common nuisance regarding 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. Common examples of an attractive nuisance include pools and trampolines.
However, vacant landowners are likely not responsible for this type of nuisance unless they create the nuisance or fail to exercise reasonable care for a pre-existing attractive nuisance. In rare cases, the vacant property itself may be considered an attractive nuisance.
Can Vacant Property Owners be Automatically Liable for Injured Children?
In some states, yes, 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. In some cases, the vacant property owner is automatically liable for a child’s injury if they fail to maintain such conditions.
When Should I Consult a Lawyer?
If your child was injured while trespassing onto a vacant property, you should consult with a personal injury lawyer. A lawyer can be helpful in determining whether the injury was due to some failure on the part of the property owner and provide your family with options on how to pursue your claim.