Child Injured While Trespassing Part 2


Hi, I am Indiana personal injury attorney David Holub.

In our last video clip, we discussed a question from a caller who asked, “my son is 12 years old. He found some old boards around an abandoned building and built a ramp for his bike. The boards broke as he tried the ramp, and he fell and broke his nose and lost teeth. Can we sue?”

In the last video, we addressed property owner liability and attractive nuisance.

Not only did the boards break as the boy tried the ramp, but he placed the boards against a partially collapsed concrete wall on the property.

Instrumental in his injury was the collapsed concrete wall and the discarded boards, all of which were in an area open to people passing by unguarded by a fence

In this video, we focus on whether, under the law, a 12-year-old can be held to be contributorily negligent.

Contributory negligence used to be a complete bar to recovery in Indiana.

Now Indiana considers the fault of the plaintiff and defendant and compares the conduct of the two.

If the plaintiff is less than 50% at fault, the plaintiff may recover damages, but the damages recovered will be reduced by the percentage of fault of the plaintiff.

Indiana recognizes a rebuttable presumption that children between the ages of 7 and 14 are incapable of contributory negligence.

A rebuttable presumption is just that. The law presumes that a child between 7 and 14 cannot be at fault. But, the defense team at trial is allowed to prove that the child is nonetheless at fault.

A child under age 7 is flat-out presumed incapable of being at fault. The law gives no opportunity to dispute it.

So how might a defendant go about proving the caller’s 12-year-old son to be at fault?

Well, suppose there is evidence that the 12-year-old attended a bicycle training class.

Suppose further that the class instructor carefully explained the danger of running bikes up and down ramps.

Such evidence might very well convince a jury that the 12-year-old knew of the danger and was careless in going onto the property and building a ramp.

The evidence might be compelling if 10 children of the same age all attended the class. And the other 9 thought doing what the injured child did was too dangerous and refused to participate and rode their bikes home.

Sorry, there are no clear-cut answers in these cases.

I hope you found this information helpful. If you are a victim of someone’s carelessness, please call (219) 736-9700 with your questions. You can also learn more about us by visiting our website at We also invite you to subscribe to our weekly podcast: Personal Injury Primer, where we break down the law into simple terms, provide legal tips, and discuss personal injury law topics.

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