What to do when children are injured on private property?

Child Injuries on Private Property

Property owners have a greater duty to children when the owner of land knows that children are on his property. This is especially true in certain situations where the owner of property has something on their property that can be dangerous, like a playground, a trampoline, a swimming pool, or animals. These common situations for many homeowners can seem safe when other adults are on their property, but these can be considered dangerous conditions when children are involved.

Like any injuries that occur on the property of another, traditional premises liability rules apply even when children are involved, which means that courts will consider whether the victim-child is considered an invitee, a licensee, or a trespasser. However, in general courts have determined that there is a higher duty of care owed to children when they are an invitee or licensee. A Lesser duty of care is owed when the child is trespassing, although there is the attractive nuisance exception.

Attractive Nuisance 

Although a trespasser, defined as one who wrongfully enters the land of another, is trespassing wrongfully, landowners owe a special duty to children when their property has something that “may capture the interest of a child and attract the child to trespass onto land in order to investigate the object that is attracting them.” The reason behind this rule is one of public policy, where a landowner is in a better position than children.

Classic examples of attractive nuisance found in Utah caselaw include abandoned buildings, mines, farm equipment, lakes and ponds, and farm animals. However, natural conditions will not be considered attractive nuisances like a hillside, tree, river, or stream. Owners are required to be sensitive to attractive nuisances on their property by posting warning signs or taking other affirmative steps to protect children from the dangers of their property.

In Utah, when bringing a claim or lawsuit for injuries resulting from an attractive nuisance, the child or his/her parents will have to follow the attractive nuisance elements outline in the Section 339 of the Restatement (Second) of Torts. Section 339 provides as follows:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if: (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and (b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and (c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and (d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and (e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

To illustrate, imagine a child walking down the road and they pass by an abandoned building. The property owner has a duty to put up barriers to the property, such as boarding up windows on the first floor or locking gates and doors. Similarly, a condominium complex with a pool will have a duty to put up a fence to avoid harm to children.

Many animals, such as livestock or even a dog can be considered an attractive nuisance. This is because most children do not know how to behave around large animals and even pets. In fact, under Utah law if the animal is a dog, the owner will be liable even if the dog is not known to be vicious or mischievous. However, Utah’s Comparative Negligence laws require that the victim not be more at fault when provoking an animal, although the age and experience of a child will be considered.

Even though the elements of a particular attractive nuisance case may seem clear, there is no bright-line rule in Utah for every circumstance. Instead, Utah analyzes them on a case-by-case basis. First, they consider the facts and circumstances surrounding a particular injury. Then they determine whether the elements of the rule can be satisfied.

Lastly, there are times when a child’s trespass will not be considered an attractive nuisance and simply trespassing, and a child will not be able to bring suit for their injuries. For example, if the child is attempting to burglarize a home, and breaks a window of a home and is then cut and injured on the broken window; the child would not be able to recover for their injuries. The homeowner does not have a duty to warn or remove the children from danger they created, or if the dangerous nature of the premises is apparent.

Takeaway

If your child has been injured on private property, you may have a claim on their behalf under the attractive nuisance laws. Contact us for a free case evaluation. Remember, our consultations are always free, and we don’t charge any fees unless We Win.