As an adult injured on another person’s property, you have to look closely at the circumstances surrounding the accident. First of all, you need to determine if you had permission (explicit or implicit) to be on the property at the time of the accident. Next, you need to ask yourself honestly if a person exercising reasonable care should have been able to avoid the accident (if you slipped on a floor that was roped off and had a ‘Wet Floor’ sign in front of it, you may be considered responsible for your injury). If the accident was not your fault, you need to determine if a reasonable property owner should have taken steps to prevent the dangerous condition, and if your accident was a direct result of that dangerous condition.
Determining liability when these types of cases involve children gets a little more complicated. In general, children love exploring and are not as capable as adults of judging potentially dangerous situations, which tends to shift more responsibility to the property owner, even in cases where a child may be trespassing on their property.
Property Owners Need to Consider Risk of Trespassing Children
When establishing responsibility in premises liability cases, the court must determine that the injured party is either an invitee, a licensee, or a trespasser. An invitee is someone whose presence onto their premises was requested by the property owner, such as a shopper in a store or a patron in a restaurant. A licensee is someone who enters the property for their own purposes but has the consent of the owner, such as a guest at a party. A trespasser is someone who does not have the consent of the owner to be on the property, and in cases involving adults, an injured party will usually not receive any kind of compensation.
The families of children who trespass, on the other hand, may sometimes receive compensation for the child’s injuries, depending on the specific circumstances. A property owner may be liable for the injuries of a trespassing child if all the following conditions are met:
• The property owner knew or should have reasonably known about the dangerous condition on their property (e.g. a large, partially hidden hole in their yard).
• The property owner knew or should have reasonably known that children may trespass on their property. For example, if the owner has a backyard pool that has no fence or other barriers surrounding it, it is reasonable to assume that young children might venture into the pool.
• The property owner knew or should have reasonably known that the dangerous condition on their property could put trespassing children at risk for serious injury or death. Going back to the swimming pool example, a property owner should recognize that a 6-foot deep, unfenced pool poses a drowning risk to small children.
• The injured child was unable to recognize the hazards of the dangerous condition because of their youth and inexperience. For instance, while an adult might know better than to play on a rusty piece of farm equipment, a young child could not be expected to recognize the dangers.
• It should not have taken a significant effort on the part of the property owner to eliminate or mitigate the risk. If the owner could have prevented children from trespassing simply by putting up a fence or other barrier, he/she may be found liable.
If your child is injured because they trespassed on another person’s property, do not assume you cannot receive compensation for medical expenses simply because your child did not have permission to be there. Talk to a child injury attorney to learn more about your options.
About the Author:
Andrew Winston is a partner at the personal injury law firm of Lawlor Winston White & Murphey. He has been recognized for excellence in the representation of injured clients by admission to the Million Dollar Advocates Forum, is AV Rated by the Martindale-Hubbell Law Directory, and was recently voted by his peers as a Florida “SuperLawyer”—an honor reserved for the top 5% of lawyers in the state—and to Florida Trend’s “Legal Elite.”