In most cases, premises liability personal injury claims cannot be pursued by trespassers on someone’s property. However, when it comes to children, there are some additional child protections associated with these injuries, particularly in cases concerning what is known as an ‘attractive nuisance.’
How Premises Liability Personal Injury Claims Work for Adults
Usually, if you, as an adult, are injured on someone else’s property, you will have to prove that the property owner was liable. Their liability will be based largely on why you were on the property. In such cases, you will be identified as an invitee, a licensee, or a trespasser.
If you are an invitee, then you were invited onto the property, as in the case of stores or any occasion where you entered personal property with the owner’s permission or at the owner’s request. If you are a licensee, then you are on the property with the owner’s consent, perhaps as a guest or as worker. You might be there to visit, the complete a job, or to deliver a package, for example. If you are a trespasser, then you are on the property without the owner’s permission or consent, and do not have a right to be there.
Naturally, if you are an invitee or a licensee, then the owner of the property has a duty of care to ensure that their property is safe and hazard free. This doesn’t mean that the owner has to maintain their property to a level of perfection, but that they must take all reasonable and necessary measures to keep the property safe. If they do not do so, then you can probably prove negligence if an injury should occur. If you are a trespasser, then they do not have a legal obligation to keep you safe or warn you of dangers.
When Children Are Trespassers on Personal Property
If a child trespasses on someone’s property, then the same liability rules will usually apply. However, there is a law concerning hazards to children on properties that are associated with an ‘attractive nuisance.’ The attractive nuisance doctrine addresses injuries to children who may have been trespassing, but may not have realized that they were doing so. In many cases, a child may not even know what it means to trespass, so the law allows for certain conditions in which a property owner can still be held liable for injuries to trespassing children.
To establish liability in such cases, you’ll need to prove that the defendant was aware (or should have been aware) that children might be tempted to trespass on their property or accidentally wander onto their property. You also have to prove that there was a dangerous condition on the premises, which the property owner would have been aware of.
Then, you must establish that the child or children would not have known or understood the hazard, that the hazard could have been removed or maintained in such a way as to prevent harm, and that the property owner did not maintain or remove the hazard to ensure that the property was in reasonably safe condition.
To get an idea of how this law might apply to a specific case, imagine a circumstance in which a property owner has an old swing set in their yard. In this case, the swing set is visible to children, is not fenced in, and is not maintained to be safe for children to use. A child sees the swing set, goes to play on it, and is injured when it breaks.
Now, let’s look at whether or not this injury meets the criteria of the attractive nuisance doctrine. The fact that children are attracted to swing sets and the yard is not fenced in means that the owner should have been aware that children might trespass on the property to use the swing set. The old and unmaintained swing set qualifies as a dangerous condition that the property owner would be aware of. The child would not be expected to know that this was a dangerous condition. The hazard could have been maintained, removed, or fenced in. The property owner did none of these things to prevent the hazard. The property owner, in this case, is probably liable for the child’s injuries.
Some Premises Are Immune to Lawsuits When Children Are Injured
Children are frequently injured on play equipment on playgrounds that are found at day care centers, schools, public parks, and play equipment at the homes of their friends and relatives. Some of these entities are immune to lawsuits for personal injuries to children, while others are not. Generally, government entities like schools and city playgrounds are immune to liability unless there was some form of gross negligence. Every state handles these cases differently, and in some cases, even daycares cannot be sued unless gross negligence has occurred.
On the other hand, if your child’s injury occurred on private property, then the owner of that property may be liable for negligence, even if the child was trespassing. Each case is unique, and the best way to find out if you have a valid personal injury claim after a child’s injury is to seek a free consultation with a South Carolina personal injury attorney.
Call the Elrod Pope Law Firm to Learn More About Personal Injuries to Children
If your child has been injured on someone else’s property, contact the Elrod Pope Law Firm to schedule your free consultation about children related personal injuries, learn more about your rights and potential avenues of recovering compensation and get your questions answered.
Thomas E. Pope is a Personal Injury, Wrongful Death, and Medical Malpractice Attorney who practices in Rock Hill, Lake Wylie, and Lancaster, SC. He graduated from the University of South Carolina School of Law, and has been practicing law for 31 years now. Thomas E. Pope believes in protecting the injured. Learn more about his experience here.