Child Injured While Trespassing Part 1
Not long ago, we had a call from a person 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?”
This is a complex question.
I’m going to answer it in two videos.
In this video clip, let’s focus on property owner liability.
The attractive nuisance doctrine applies to unguarded dangerous conditions on land.
If an unprotected dangerous condition attracts and exposes a child to danger. If the child gets hurt, he may sue those in charge of the property alleging “attractive nuisance.”
The law is based on a belief that people have a social duty to protect children from dangers of which they, through their childish instincts, are unlikely to become aware.
The court-created doctrine of attractive nuisance is an exception to the general rule that a trespasser injured by a dangerous condition on another’s land cannot sue.
For “attractive nuisance” to exist, you have to prove 5 things:
1) the possessor of the place where the artificial condition exists must know or have reason to know that children are likely to trespass, and
2) the possessor must know or have reason to know of the condition and that it will involve an unreasonable risk of death or serious bodily harm to such children,
3) the children, because of their youth, must not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it,
4) the utility to the possessor of maintaining condition and the burden of eliminating the danger must be slight as compared with the risk to the children involved, and
5) the possessor must fail to exercise reasonable care to eliminate the danger or otherwise protect the children.
The caller’s 12 years old, who found old boards around an abandoned building, and built a ramp for his bike, may be able to sue the property owner.
In asking a few more questions, we found that not only did the boards break as he tried the ramp, but he placed the boards against a partially collapsed concrete wall on the property. So when he fell, he had climbed on the collapsed concrete wall and used the discarded boards, all of which were in an area open to people passing by and unguarded by a fence.
The lack of a fence is an important fact. If the child had cut or climbed a fence, the attractive nuisance claim could fail since a property owner-installed fence would isolate the property from kids.
As discussed in the following video we post on this subject, the boy’s behavior was undoubtedly careless by adult standards. But, we’ll address whether the property owner can successfully defend a case by pointing to the boy’s negligent conduct?
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 DavidHolubLaw.com. 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.