Landowners generally are held to a higher standard of care to prevent injuries to children than to adults. However, jurisdictions differ as to how much care is reasonable under the circumstances. Also, the standard of care may differ depending on whether the child is an invitee, licensee, or trespasser. Some jurisdictions recognize these different categories of children, while other jurisdictions do not differentiate between them.
Invitees – Those with express or implied invitations to visit the property. In these situations, in some jurisdictions the landowner has a duty to:
- Exercise ordinary care to prevent injuries
- Make the land reasonably safe
- Not have any dangerous conditions
- Warn visitors verbally, or by posted signs, of any dangers on the property, even if they appear obvious. Failure to warn may result in liability if the child is injured. Most courts inquire as to whether a child of the same age and maturity level would have also been injured.
Licensees – Those with the owner's permission to enter for their own purpose. There are different standards of care for licensees than invitees. Generally, as to licensees, landowners:
- Have a duty to protect a child from danger when the child's presence is known
- Have a duty to prevent any reasonably predictable injury to a child
- Must sufficiently warn of dangerous conditions that they may not discover on their own
- Have a duty to warn of dangers even when a child's presence on the property is not known
However, the landowner does not need to warn licensees of obvious dangers, or dangers the landowner was unaware of at the time of the visit.
Trespassers – Those without permission to be on the property. Generally, landowners do not have a duty to keep their land safe for child trespassers. Again, the only requirement of the landowners is that they cannot deliberately or recklessly harm the child trespasser. However, once a landowner is aware that a child trespasser is on the land and that there is a danger that is not visible, the landowner must take reasonable steps to avoid injury to the child.
Although the standard of care for trespassers is relatively low, the attractive nuisance doctrine raises that standard for child trespassers. The doctrine deals with injuries caused by an artificial condition on the land (such as a dilapidated shed), and applies to all categories: trespasser, licensee, or invitee.
The landowner will be liable if he or she:
- Knows children frequent the area and knows the conditions of the land have the potential to harm them
- Doesn't notify the children and help them understand the risk of harm
- The risk of harm outweighs the use of the condition or cost of eliminating it
The attorneys of Roberts & Roberts have the skill, experience and resources to fully investigate any serious accident or death. If you have a question about an accident involving a serious injury or fatality, please call 800-248-6000 or contact us for a free consultation.