When someone walks onto your land, illegally and without invitation, the law offers that trespasser relatively few protections. After they fall into a deep well or down a dark stairway, they might stumble badly again in court trying to sue you for their injuries.
But when the trespasser is a child, the story can end very differently. Under certain circumstances, the law has ways of holding everyone, even landowners, reasonably responsible for children’s safety.
Attractive nuisances turn a kid’s curiosity into a dire threat
Every state has laws that help courts decide if a child was hurt by something that counts as an “attractive nuisance,” that is, something a landowner is responsible for in civil court after it lured children to injuries or worse.
These laws differ from state to state, as New York’s differ somewhat from New Jersey’s. But the basic concepts are similar almost everywhere, particularly from the point of view of landowners and what they can do to minimize the chances of human tragedies and legal nightmares.
The time to stop offering an attractive nuisance is now
A court might find you liable for harm suffered by a child who is trespassing on your land if all of these apply to you or your property:
- You knew (or should have known) both that there was an artificial feature on your property and that it could cause serious harm.
- You knew (or should have known) both that children were likely to trespass onto your property and that children were unlikely to understand the danger.
- Given this risk to children, there was comparatively little advantage to keeping or burden in removing the feature.
- You failed to take reasonably effective measures in making the feature safe.
As simple as these requirements might seem, they contain many complex ideas to explore in a classroom or courtroom.
For example, note that a major difference between an adult and child trespasser is that we might expect an adult trespasser to understand the dangers. Also, how do we know if a measure taken to make a danger safe was “reasonable”?
But thinking about arguments one could make after the fact is not the surest strategy. Most children are naturally curious and drawn to unusual objects or places. However, many objects and places are unusual precisely because responsible adults took them down or locked them up because they were too dangerous to children.