Learn when children and their parents are entitled to compensation for injuries caused by an attractive nuisance on someone else’s land.
Young children don’t understand that playing on another person’s property is dangerous. Children can be seriously injured or die because they were attracted to an unfenced pool or another hazard on someone else’s land.
Under most premises liability laws, a property owner is not responsible for injuries to trespassers.
However, most states have different rules when it comes to trespassing children, called the “attractive nuisance doctrine.” Under these laws, an injured child and their parent have the right to seek compensation from the property owner, even if the child was trespassing.
What Counts As An Attractive Nuisance?
The doctrine says that a child trespasser can sue a property owner for injuries caused by an unsafe object on the land that “attracted” the child or lured them onto the property.
The attractive nuisance doctrine applies to residential and commercial properties, including construction sites.
Elements of an Attractive Nuisance
For an injury claim or wrongful death claim against a property owner to succeed, you must establish that the property owner was negligent, and therefore liable for your child’s injuries.
There are four attractive nuisance elements that must be met to prove negligence:
- A hazardous object existed on the landowner’s property
- The owner created or allowed the unsafe condition
- The owner knew, or should have known the object would be attractive to children
- The owner knew, or should have known the object could harm a child
Examples of attractive nuisances:
- Swimming pools
- Trampolines
- Ponds
- Machinery with keys in the ignition
- Uncovered wells or open pits
- Refrigerators or freezers
- Treehouses
- Abandoned cars
Example: Pond Owner Liable for Injured Child
Second-graders Jim and Kelly are playing one afternoon when they notice a neighbor added a small pond to their yard. The pond is filled with colorful fish, water plants, and a few large rocks. Jim and Kelly walk to the edge of the pond to take a closer look. Jim accidentally slips on one of the wet rocks and falls into the water, hitting and breaking his arm as he falls.
Here, Jim’s parents can pursue compensation from the property owner under the attractive nuisance doctrine. Jim is a child. He trespassed onto the property because of the luring nature of the pond, and he was hurt as a result. The negligent property owner should have tried to prevent injuries by taking reasonable precautions, like building a fence.
Every child injury case is different. Attractive nuisance laws are designed to protect those who can’t understand that a luring object is dangerous or don’t understand what could go wrong.
Property owners are not automatically liable for injuries to anyone underage. Children may deserve extra protection (or none at all) because of their age, developmental delays, life experiences, or other reasons.
Example: Pond Owner Not Liable For Injured Teen
Let’s say Jim and Kelly are both high-school sophomores. Jim is a former Boy Scout, and Kelly works as a lifeguard in the summer.
Jim and Kelly are trespassing on the neighbor’s property. They decided to check out the neighbor’s new pond, and the rocks around the pond are wet and slippery. Jim slips and falls, breaking his arm.
Jim’s parents probably won’t get far with an attractive nuisance claim against the property owner. Both teens are old enough to know they had no business on the neighbor’s property. Considering Jim’s education and experiences, he should have understood the dangers associated with a pond – especially slippery rocks.
How Attractive Nuisance Doctrines Work
Under traditional premises liability laws, a trespasser cannot sue a property owner for injuries unless the property owner injured the trespasser on purpose.
The attractive nuisance doctrine delivers an added layer of protection for children.
Trespassing children deserve more protection than adults because most children:
- Can’t understand the concept of trespassing
- Don’t realize the harm that certain objects on someone’s property can cause
Keeping Property in a Reasonably Safe Condition
Some state laws no longer apply the attractive nuisance doctrine. Instead, these states say that a property owner has to keep their property in a “reasonably” safe condition.
The property owner’s duty of care applies to both trespassers and non-trespassers alike. A property owner is liable for damages if they fail to keep their property relatively safe and someone gets injured on their land.
On the other hand, the property owner might be off the hook if they made a reasonable effort to prevent injuries from happening on the property.
Whether a tort (injury) claim is settled with the insurance company or ends up in court, the state’s premises liability laws come into play. The details and facts of a case will show whether a property owner’s land is kept in a safe condition.
Common safety factors that affect an attractive nuisance case are:
- Whether a fence was placed around a dangerous object or hazardous condition
- The history of the land and whether similar prior injuries took place
- The landowner’s actions in inspecting the property and treating a potential danger
- The cost of removing the dangerous condition or object
- How obvious the unsafe object was
California is one state that uses this approach.
In California, property owners are generally responsible for:
“[A]n injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself…”
Example: California Homeowner’s “Reasonable Care”
Carlos owns a small home and has a hot tub off a side patio. He keeps a lid on the tub whenever it’s not in use. Anyone inside the home can see the hot tub and a floodlight turns on at night to light up the patio.
A neighborhood boy sneaks onto Carlos’s property one night and bangs his head on the tub while trying to pull the cover off to get inside.
Carlos would not be responsible for the boy’s injuries because he took reasonable steps to make sure the area was safe – there was a cover, clear visibility of the tub, and the area was lit at night.
On the other hand, if Carlos kept his hot tub in an isolated area with no lights and no fence, and he rarely inspected his property, he could be liable for the boy’s injuries.
5 Things Parents Should Do When a Child Is Injured
There are several things a parent should do if their child gets injured in any situation that might be someone else’s fault. These apply to injuries sustained because of an attractive nuisance and injuries caused by other circumstances.
1. Remain Calm
Stress and anxiety increase when someone gets injured in an accident, and stress levels skyrocket when the injured party is a child. It’s critical for a parent to remain calm. A clear head is a smarter head and will make better decisions.
2. Get Medical Help
Call 911 for emergency care, or take the child to a doctor or urgent care center as soon as possible. Tell the medical provider exactly when, where, and how the child was injured.
3. Collect Evidence
Parents are wise to gather important evidence like photographs and witness statements from the injury location and throughout the child’s recovery to help prove liability.
4. Keep Any Paperwork
Parents should keep any documentation associated with their child’s care and treatment as well as any correspondence from the property owner or the insurance company.
5. Contact an Attorney
Don’t be afraid to consult with a personal injury attorney about how to protect your child’s interests. Most injury law firms offer a free consultation. It costs nothing to find out what a skilled personal injury attorney can do for your family.
Types of Damages for Children and Parents
Children, through their parent or guardian, can seek compensation for many of the same types of damages that an adult can seek in insurance claims and personal injury lawsuits.
When an attractive nuisance injures a child on someone else’s property, the child’s damage claim might include:
- Medical costs, including future medical expenses
- Rehabilitation costs
- Loss of future income
- Pain and suffering
When a child is fatally injured by an attractive nuisance, such as drowning in a swimming pool, the parent or guardian can file a wrongful death claim against the property owner.
The damages for a wrongful death claim may include:
- Medical expenses
- Funeral expenses
- Loss of future income
- Pain and suffering
- Emotional distress
A parent may also be awarded “loss of society,” meaning an amount in compensation for the love and support the child would have provided to the family.
Child Injury Claims Can Be Complicated
Children are entitled to compensation for many of the same damages available to adults in personal injury cases. However, most states have special laws for settling minor (underage) injury claims that can get complicated.
Unfortunately, children are injured every day because of an attractive nuisance, car accident, dog attack, or some other situation caused by someone else’s negligence.
Depending on the state’s rules and the amount of money involved, a child’s injury compensation is given to the parents, set aside until the child is at least 18 years old, or structured for periodic payment to provide for the child’s care.
Often, child injury compensation goes into a court-approved trust fund, interest-bearing bank account, or an annuity.
You don’t have to figure it all out on your own. It pays to consult an experienced attorney about your child’s injuries. The amount and management of settlement funds can affect your child’s eligibility for supportive services, including Medicaid, CHIPS, SSA, and more.