Legal Protections for Children Who Are Injured While Trespassing

April 13, 2018

Premises liability laws protect people who are injured on someone else’s property, whether a neighbor’s house or a restaurant downtown. In general, the law applies to those who are invited as a guest or consumer, but doesn’t cover trespassers in most cases.

This stipulation appeals to common sense: you shouldn’t be held liable for someone’s medical bills if they fall out of a tree in your backyard if they were climbing it without your knowledge or permission. Typically, trespassers only have rights to compensation for their injuries in two scenarios:

• If the property owner is aware that people trespass on their property regularly and does not take any action to stop them, but fails to warn them of or take care of any hazards
• If the property owner takes deliberate steps to harm known trespassers instead of warning them or going through the appropriate authorities to stop them

However, premises liability law expands protections beyond these two conditions for children who trespass in certain situations.

Protection From Attractive Nuisances

As anyone can remember from their childhood, kids have a tendency to get into places they’re not supposed to. Their natural curiosity makes them bold, and their lack of awareness makes them vulnerable.

That’s why the legal principle of attractive nuisance exists. Courts recognize that certain areas or equipment can pique a child’s interest and cause them to trespass on someone else’s property. Because young children don’t have a concept of their legal rights and restrictions, the burden falls on the owner of the so-called “attractive nuisance” to make reasonable efforts to prevent children from hurting themselves when trespassing.

There are five general clauses that make up a successful claim under attractive nuisance law.

Awareness of Attraction

The first thing to prove is that the owner of the nuisance should have been aware that children were likely to trespass on his or her property. For example, if a neighbor owns a treehouse, they could reasonably anticipate other kids wanting to play in it.

Awareness of Danger

Beyond owning an attractive nuisance, plaintiffs must also prove the nuisance provided the risk of serious injury or death. Owning an unsupervised pool is a good example, since small children who may live nearby are at a high risk for drowning.

Inability for Victim to Identify Risk

This is where nuisance laws differ from general premises liability. In most cases, it’s difficult to prove that an adult is unaware that their behavior while trespassing poses a risk of bodily harm. For children, however, this clause can be much easier to prove, depending on the age of the child.

Young children lack the awareness and judgment of older children and teenagers, so the younger the child, the more protection around nuisances is required.

Ease of Prevention or Elimination

Defendants are more likely to be held liable for a child’s injury on an attractive nuisance if the cost of preventing or eliminating the source of injury is less than the potential harm. For example, simply posting a “No Trespassing” sign isn’t suitable to protect children who can’t read from jumping into an unsupervised pool. However, defendants can’t reasonably claim their neighbors should fill their pool in with cement because their child may wander onto their property. A more reasonable course toward prevention would be fencing in the pool or covering the pool with a tarp that cannot be easily removed by a young child.

Lack of Reasonable Care

Finally, owners of attractive nuisances may be held liable for a child’s injuries if their property was poorly maintained. For example, if the neighbor’s lawn is full of rusty nails, the property may be considered improperly cared for, regardless of the reason why the child entered the lawn in the first place.

Guidance from an Indiana Personal Injury Attorney

Premises liability and personal injury law change when considering the rights of children. If your kids have been hurt by someone else’s unreasonable negligence, you have options. Pursuing a premises liability claim is one way to get compensation for medical bills, pain and suffering, and maybe even emotional distress.

The personal injury lawyers at Hensley Legal Group are ready to help. Call or contact us online to start the conversation, free of charge.