Is a property owner responsible for children who trespass?

Most New York adults know not to trespass on property where they are not welcome. If they do trespass, they usually know that they should exercise caution. Children, on the other hand, may not be so careful. They can be attracted to things that are inherently dangerous and may not understand the full risk involved. As a result, children sometimes suffer injuries on property where they weren’t welcome. In those situations, there is often a question as to whether the child’s family can pursue compensation from the property owner.

There are a number of rules that specifically define when a property owner is liable for injuries to trespassers. However, child trespassers have their own set of rules. Generally, premises liability with regard to child trespassers depends on whether there is an “attractive nuisance” in place. An attractive nuisance is something that an adult would likely see as dangerous, but a child may find attractive. This could include things like swimming pools or heavy machinery.

A property owner who has an attractive nuisance on its property also has a responsibility to make it safe for child trespassers. A court may look at whether the property owner knew or should have reasonably known that children would be attracted to the nuisance. Also, the court will look at whether the child would know that the nuisance presented risk and if the utility of the nuisance justified the potential danger.

While these criteria offer a helpful set of guidelines, rulings can vary from case to case depending on the circumstances in each situation. Parents who are curious as to whether they can pursue an action for damages may want to consult with a premises liability attorney.

Source: Findlaw, “Who Is Liable?”, December 22, 2014